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The Independence of the Judiciary and the Legal Profession in English-Speaking Africa

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The Independence of the Judiciary and the Legal Profession in English-Speaking Africa The Independence of the Judiciary and the Legal Profession in English-Speaking Africa A Report of Seminars held in Lusaka from 10 to 14 November 1986 and in Banjul from 6 to 10 April 1987 convened jointly by the % Centre for the Independence of Judges and Lawyers African Bar Association International Commission of Jurists INTERNATIONAL C O M M IS S IO N OF JURISTS The ICJ permits free reproduction of extracts from any of its publications provided that due acknowledgement is given and a copy of the publica­ tion carrying the extract is sent to its headquarters at the following address: P.O.Box 120, CH-1224 Chine-Bougeries/Geneva, Switzerland The Independence of the Judiciary and the Legal Profession in English-Speaking Africa A Report of Seminars held in Lusaka from 10 to 14 November 1986 and in Banjul from 6 to 10 April 1987 convened jointly by the Centre for the Independence of Judges and Lawyers African Bar Association International Commission of Jurists L i R A, tl'f International Commission of Jurists (1C.I) Geneva, Switzerland Copyright © International Commission of Jurists ISBN 92 9037 038 6 Contents Preface by Reed Brody and Niall MacDermot ...... Part I : Lusaka Seminar Opening Speech by Dr. Kenneth David Kuanda, President of Zambia............ ................................. ............ ........... ................ 11 Address of Welcome by Roger Chongwe, President, African Bar Association ........... .............................. ..... ........... 17 Address of Welcome by Ustina Dologopol, Director of the Center for the Independence of Judges and Lawyers...... 20 The Role of Lawyers in Society, by Mphanza P. Mvunga..................... 23 The Independence of the Judiciary and Legal Profession in Botswana, Lesotho and Swaziland: An Overview, by P.K.A. Amoah........................................ ........ ............................. ..... ....... 26 Prolegomena on Judicial Independence in Kenya, Tanzania and Uganda, by Abraham Kiopi................. ......... ......................... 40 Judges and Lawyers in Africa Today, by Shadrack B.O. G u tto.................. 52 The Rights and Duties of the Legal Profession in Africa, ' by Boyce P. Wanda.......................... ...... ........................................................ 61 The Status and Rights of Judges, by L.S. Shimba......................................... 68 Conclusions and Recommendations .......................................................... 79 List of Participants......... ...... ............. ........................... ............................... 94 3 Part II: Banjul Seminar The Independence of the Judiciary in West Africa, by Berthen MacCauley......................... ........ .................................................. 101 The Rule of Lawyers in the Protection of Human Rights, by A.N.M. Ousainu Darboe.................... ..................................................... 103 An Evaluation of the Independence of the Judiciary in Nigeria, by Prof. Ebere Osieke....................... ........................................ .......... .......... 107 The Judiciary as a Separate and Independent Arm of Government, by Chief Debo Akende ................. ..... .................................. 117 Terms and Conditions of Service of Judges: A Safeguard to the Independence of the Judiciary, by Justice B.J. Odoki.........................125 Conclusions and Recommendations ...................................................... 142 list of Participants............ ........ ............ 153 Annexes I. United Nations Basic Principles on the Independence of the Judiciary.................. ..... ............................ ........ .......................157 II. Montreal Universal Declaration on the Independence of Justice.................................... ................................... ................. 161 4 Preface In 1978, the International Commission of Jurists created the Centre for the Independence of Judges and Lawyers (CIJL) in response to increasingly frequent attacks on judges and lawyers by governmental and para-govem- mental forces. The CIJL has focused on activities to protect the independence of the legal profession and the judiciary, acting as a clearinghouse for information about threats to that independence, and using this information to mobilise international support. The CIJL works with bar associations to encourage them to act on behalf of persecuted colleagues, and it disseminates informa­ tion about measures that may be taken both locally and internationally to protect lawyers and judges from undue government interference. Perhaps the most important part of the CIJL's work has been the de­ velopment of international and regional standards for the independence of judges and lawyers. The CIJL was particularly instrumental in the drafting of the Basic Principles on the Independence of the Judiciary and in their adoption by consensus by the Seventh United Nations Congress on Crime Prevention and Control in 1985. These principles, which are set forth in an Annex to this report, were endorsed, together with other Congress docu­ ments, by the General Assembly (A/Res/40/32), which then specifically called on governments to respect the Basic Principles and take them into ac­ count in their national legislation and practice (A/Res/40/46). In 1986, the IQ and the CIJL began a series of regional seminars in­ tended to examine the norms being developed at the international level, dis­ cuss how these norms should be applied and adhered to in their regions, and make recommendations for their implementation. As part of this series, the ICJ and the CIJL in conjunction with the African Bar Association spon­ 5 sored a seminar on the independence of judges and lawyers in Lusaka, Zambia (10 to 14 November 1986). The seminar brought together judges, at- tomey-generals, and practising lawyers and academics from Botswana, Le­ sotho, Malawi, Mauritius, Swaziland, Tanzania, Uganda, Zambia and Zim­ babwe. President Kaunda, in his opening adress to the seminar, expressed one of the underlying themes of the conference, namely that people and governments "should not shirk from (their) responsibility to establish, nur­ ture and safeguard vital institutions such as the judiciary for there is evi­ dence from all over the world that societies which took matters for granted have at one time or another regretted the results of their lack of vigilance." A plenary session was devoted to the role of courts and lawyers in so­ ciety. The participants then divided into four working groups to consider the following topics: the organisation and jurisdiction of the courts, the status and rights of judges, along with the independence of the judiciary and its status as a separate branch of government, and the independence of the legal profession. The recommendations of each working group were evaluated and amended by the closing plenary and subsequently adopted. A second CIJL-IQ-ABA seminar was held in Banjul, the Gambia, from 6 to 10 April 1987 with participants from the Gambia, Ghana, Kenya, Nige­ ria, Sierra Leone and Uganda. After an opening speech by the Vice-Presi­ dent Bakary B. Dardo, and a plenary session on the role of courts and law­ yers in society, the seminar proceded according to the model adopted in Lusaka. The subjects of the seminars encompass many aspects of the admini­ stration of justice and the functioning of the judiciary and the legal profes­ sion. Some examples are: the difficulties encountered in attempting to har­ monise received and traditional legal systems, the necessity of ensuring broad judicial powers to review executive actions and to uphold the rights of detainees, the importance of guaranteeing adequate facilities and remu­ neration to judges and their staff, the contribution of an independent legal profession to the protection of human rights, the importance of making le­ gal services available to all sectors of the population and the obligation of governments and the legal profession in finding methods of promoting and asserting their rights. Each of the participants has made a commitment to work for the implementation of the recommendations adopted. Follow-up committees have been established and the ABA has undertaken to be re­ sponsible for coordination efforts and for keeping the participants informed of new developments. The following report on the two seminars contains the recommenda­ tions agreed upon by the participants, excerpts from the opening speeches 6 and some of the working papers presented at the meetings. Inevitably, there was some duplication between the papers submitted at the two seminars. This accounts for the smaller number of documents from the Banjul seminar which have been reproduced. We hope that the authors of the papers at both seminars which have been omitted or shortened will excuse us. The ICJ and the CIJL are profoundly grateful to His Excellency Ken­ neth D. Kuanda, President of Zambia, for welcoming the seminar and its members. We also thank Vice-President Bakary B. Dardo of the Gambia. We also wish to thank the African Bar Association, co-sponsor of the seminars, as well as the Law Association of Zambia, and the Gambia Bar Association whose members worked tirelessly to ensure the sucess of the seminars. Fi­ nally, we thank the Swedish International Development Authority, the International Development Research Centre and the Commonwealth Foun­ dation for their financial support which made the seminars possible. (August) 1988 Reed Brody Niall MacDermot Director Secretary-General
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