Cross Border The Role of the Legal Realising a Gendered Common Legal Practice Profession in the Regional Market for East Africa 4 Integration Process 9 15 ISSN: 0856-9940ISS ISSUEUEISSUE NO.15, NO.16, NO. MARch- 15, JM U MNAYEAY 2009 2009 PROFILES THE EAST AFRICAN of leading law firms within the EAC ISSUE No.18 NOVEMBER 2011 LAWYER 18 SPECIAL EDITION MAGAZINE FOR THE 2011 ANNUAL CONFERENCE AND GENeral MEETING Positioning the Legal Profession in the Regional WIN an IPAD2 and tickets Integration process: to Mombasa or Zanzibar in our Opportunities and Challenges AGM raffle! THE EAST AFRICAN LAWYER CONTENTS Chief Executive Officer Tito Byenkya Editors Brenda Dosio Cross Border Legal Practice Daniel Birungi in an Integrated East African Contributors Community Professor Ben Kiromba Twinomugisha — By Professor Ben Kiromba Twinomugisha Herbert Rubasha 4 Dr. John Eudes Ruhangisa Ruth Kihiu Cross Border Legal Practise in THE EasT AFRICAN LAWYER is a East Africa: A Civil Law Perspective publication of the East Africa Law Society — By Herbert RUBASHA 7 All correspondence should be sent to: The Editor, East African Lawyer Magazine East Africa Law Society The Role of the Legal Profession Number 64, Haile Selassie Road P.O. Box 6240, Arusha, Tanzania in the Regional Integration Tel: (+255 27) 2503135 Process: A Case of East African Tel/Fax: (+255 27) 2508707 Office Cell (+255 786) 821010 Community Email: [email protected] — By Dr. John Eudes Ruhangisa 9 Web: www.ealawsociety.org Design & printing by: Realising a Gendered Common Noel Creative Media Ltd Tel: +254-20-2729906/20 Market for East Africa: Gaps and e-mail: [email protected] the Role of the Legal Profession — By Ruth Kihiu The East African Lawyer magazine cannot 15 accept responsibility for safe keeping of unsolicited materials. Unless otherwise agreed, copyright for the material Profiles of leading law firms within published in The East African Lawyer will the EAC: be deemed to be surrendered by the author 18 Tanzania 19 Copyright © November 2011 Kenya 25 The East African Lawyer. All Rights Reserved Rwanda 27 Uganda 29 ISSN: 0856-9940 2 THE EAST AFRICAN LAWYER ISSUE NO.18, NOVEMBER 2011 REGIONAL INTEGRATION Cross Border Legal Practice in an Integrated East African Community Introduction By Professor Ben Kiromba Twinomugisha ross-border legal practice Dean, School of Law, Makerere University. largely involves an advocate performing legal professional work beyond his or her home Cstate. An advocate can offer legal services outside his or her country where he or she is licensed to practice. Traditionally, advocates practice law in the country where they completed their legal studies. However, experiences from regions such as the European Union have shown that some partner states towards cross border practice in the host state. It should also be greater regional integration may lead to legal practice. For example under this An- pointed out that though not yet fully insti- greater mobility of advocates. With the nex, only Rwanda and Kenya fully com- tutionalized, cross border legal practice is establishment of the East African Com- mitted themselves to eliminate barriers already taking place in one form or anoth- munity and subsequently the Protocol to cross border legal practice by 2010; er among the partner states. National leg- on the Establishment of the East African Burundi and Uganda’s elimination date islations governing professional legal prac- Common Market (herein after ‘the Com- is 2015, while Tanzania did not commit tice also contain reciprocity clauses, which mon Market Protocol’), there have been itself regarding legal services. Within the may facilitate cross border legal practice. increased calls for freer and easier trade allocated space, this paper briefly exam- As pointed out above, Kenya and Rwanda in goods and services across the region. ines the need for the promotion of cross have opened up. In any case, under the Thus, ideally cross-border legal practice border legal practice in an integrated East Common Market Protocol, partner states implies that advocates in any of the East African Community. guarantee the free movement of persons African partner states can freely practice (article 7), workers (article 10), services in all the five states, namely: Burundi, Justification of Cross Border (article 16) and harmonization and mutual Kenya, Rwanda, Tanzania and Uganda. recognition of academic and professional Partner states would be required to abol- Legal Practice qualifications (article 11). Thus, the skepti- ish all restrictions, which impede or make It should be noted from the outset that like cism and fear to embrace cross border legal it impossible for an advocate to render elsewhere, advocates in East Africa play practice should not arise. legal services beyond his/her home state. an increasingly important role in business However, albeit the partner states support transactions, some of which involve more What Form May Cross the free movement of goods, workers and than one partner state. Cross border legal Border Legal Practice Take? services, some are rather cautious and practice has real benefits for both advocates Cross border legal practice may take the may seek to maintain their sovereignty and the public, especially business persons. following forms: in some of these issues. Consequently, in- With cross border legal practice, advocates struments such as the East African Com- are able to follow their clients who are Temporary provision of legal services munity Common Market (Free Move- transacting business in another partner across boundaries. This might even ment of Workers) Regulations, Annex state. Advocates with special expertise are include having permission to appear II (November 2009) regulate the entry, able to apply it further afield. Clients can in court in the host country with the stay, and exit of workers. TheE ast African choose who they want to represent them, oversight/supervision of a local advo- Common Market (Schedule of Commit- where ever they are. Courts can also ben- cate. For example, a Ugandan lawyer, ments on the Progressive Liberalization efit from the expertise of senior advocates say, could go to Rwanda for a specific of Services), Annex V also illustrates the from other jurisdictions who appear before case and appear in the Rwandan court cautious and skeptical attitude among them thus helping to improve the quality of with court approval; THE EAST AFRICAN LAWYER ISSUE NO.18, NOVEMBER 2011 3 REGIONAL INTEGRATION Acting as a “legal consultant” on foreign Arbitration work. For example a law- There are different political systems; law. For example a Rwandan advocate yer from any East African partner Language problem; goes to Kenya to serve as a consultant state is permitted to represent any cli- on a short-term basis; ent before an arbitration tribunal in Different legal systems (common law and civil law); Establishment of a “foreign law” prac- any other partner state. tice in the host country. For example Limited resources; a Ugandan advocate sets up a firm in Challenges of Attaining Nationalistic tendencies which may Rwanda to among others, advise vari- Cross Border Legal Practice breed protectionism of the different ous stake holders such as the members A lthough cross border legal practice is in- legal markets; and evitable within an integrated East African of the business community that may Disparities in the Bar Associations. want to invest in Uganda on Ugandan Community, there are some challenges, law; which include the following but are not How do you protect the practice of insurmountable: experienced advocates versus the Entering a partnership with a law firm young ones? in the host country. For example, a Having different rolls of advocates in Burundian law firm, a Tanzanian law each partner state; How do you address competition; firm, and a Rwandan law firm joining Weak regulatory framework at the should lawyers be required to team forces. In so doing, mergers and acqui- national levels thereby making it dif- up in a country? sitions would easily be enhanced and ficult but not impossible to develop the process eased; one at the regional level; Strategies for Achieving Becoming a member of the host coun- Advocates play different roles in each Cross Border Legal Practice try bar either through an examination of the partner states; In spite of the challenges outlined above, or through reciprocity (“mutual recog- There are different regulatory systems several strategies may be applied to achieve nition”); for legal practice in the partner states; cross border legal practice in the integrated 4 THE EAST AFRICAN LAWYER ISSUE NO.18, NOVEMBER 2011 REGIONAL INTEGRATION E ast African Community. Some of these conformity assessment criteria. Accord- strategies include: ing to Article 11 of the Common Market Harmonizing legal training and cur- Protocol, the partner states undertook ricula in the partner states; to ‘mutually recognize the academic and professional qualifications granted, Encouraging practicing advocates to Conclusion experience obtained, requirements met, acquaint themselves with the laws of licenses or certificates granted in other each partner state. This is because the ith the Common partner states’ (Article 11 (1) (a)). The practice of law essentially requires Market Protocol in implementation of article 11 is to be in precise knowledge of national law. Na- accordance with Annexes to be conclud- place, cross-border tional Bar Associations could incorpo- Wlegal practice