Professional Development and Competence: A Case for cross border collaboration among African Lawyers – PALU President, Chief Obegolu

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How to enhance relations within the profession of lawyers across borders…

 

The President of the Pan African Lawyers Union, Chief Emeka JP Obegolu on 24th February revealed ways of enhancing relations among African Lawyers with PALU as the most active external partner of the African Court.

Chief Obegolu made this revelation at the Workshop on Alternative Dispute Resolution, International Economic Law and Company Law Accra, Ghana, where he delivered a keynote speech on “Professional Development and Competence: A Case for cross border collaboration among African Lawyers”.

Below is a break down of Chief Obegolu’s presentation

About the Pan African Lawyers Union (PALU)

The Pan African Lawyers Union (PALU) is the premier continental membership forum of and for individual African lawyers and lawyers’ associations in Africa.  It was founded in 2002 by African Bar leaders and eminent lawyers, to reflect the aspirations and concerns of the African people and to promote and defend their shared interests. Its membership comprises of the continent’s over five regional lawyers’ associations, over fifty-four national lawyers’ associations and over 1,000 individual lawyers spread across Africa and in the Diaspora, working together to advance the law and the legal profession, rule of law, good governance, human and peoples’ rights and socio-economic development of the African continent.

 

To realize a united, just and prosperous Africa, built on the rule of law and good governance, PALU has adopted 3 core areas of thematic focus, namely institutional development, development of the legal profession, and the rule of law and good governance.

 

The strategic goal of the Institutional Development Theme is to build a modern, well-resourced and sustainable Pan African membership organization with optimum institutional capacity to deliver on its mandate. Our organizational Development programmes are designed to build a Pan African organization with the requisite corporate governance ethos, systems and structures to provide leadership on the African continent for lawyer-led initiatives that contribute towards the AU Agenda 2063 and the UN Sustainable Development Goals (SDGs).

The strategic goal of the Development of the Legal Profession Theme is to develop a competent, effective and independent legal profession in Africa. Here, we design and implement programmes that enhance the professional capacity of individual lawyers (which includes in-house lawyers), law firms and lawyers’ associations, to boost their ability to contribute to development of the African polity, economy and society. These include enhancement of professional ethics and integrity in the practice of the legal profession, preparing the African legal professional for the 21st Century, and building the capacity of regional and national lawyers’ associations to serve their members as well as the public interest.

The strategic goal of the Rule of Law and Good Governance Theme is to strengthen the standards of adherence to the just rule of law and good governance in Africa Here, we design and implement programmes that catalyse the development and practice of African international law; we build a practice around law, peace and security in Africa; promotion and protection of human and peoples’ rights in Africa; democracy, elections and governance in Africa; and that increase the levels of integrity in Africa’s economic governance.

 

Role of PALU in enhancing relations amongst lawyers and lawyers associations

 

In the last decade, PALU has organised several conferences, workshops, seminars and trainings, either alone or in partnership with a range of intergovernmental, governmental or non-governmental actors (based in Africa, Europe and North America) to achieve shared goals and objectives with a particular focus on mainstreaming human and peoples’ rights, good governance, socio-economic development and the rule of law in Africa. Some of the most notable examples are as follows:

  1. Regional Seminars on Complex International Commercial Transactions and Dispute Resolution (both litigation and arbitration) and Vulture Funds, with the African Legal Support Facility (ALSF).
  2. Several regional seminars and colloquia on the African Legal and Human Rights System, to capacitate lawyers, governmental officials, the private sector and civil society actors in engaging the emerging human and peoples’ rights, governance, peace and security architectures at both regional and continental levels. We have undertaken this with partnership or support from, amongst others, the African Court Coalition (ACC), Ford Foundation, Institute for Justice and Reconciliation (IJR), InternationalCentre for Not-for-Profit Law (ICNL), International Coalition on the Responsibility to Protect (ICRtoP), Open Society Foundations, Pan African Citizens Network (PACIN), Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Robert F. Kennedy Human Rights, Stanley Foundation, Swedish International Development Cooperation (SIDA), etc.
  3. With the support of the Financial Transparency Coalition (FTC), PALU created the Task Force on Combatting Illicit Financial Flows (IFFs) from Africa, a small group of carefully selected lawyers and other activists who are knowledgeable, skilled and experienced in combatting IFFs, and who advise and assist PALU in the programming work in this important area. This complements our work with the AU-led Consortium on Combatting IFFs from Africa, our involvement in the Stop the Bleeding (STB) Campaign, and our participation in the Multi-Sectoral Working Group on Combatting Corruption in Africa (MSWG). Serious action to tackle IFFs will free millions of dollars for development at national, regional and continental levels in Africa and strengthen the economic sovereignty of African states and intergovernmental organisations. This is therefore an area of extreme interest to PALU, the legal profession and African citizenry.
  4. Through our African Lawyers Initiative on Compliance in Business Relations, with the support of the Siemens Integrity Initiative, PALU organized four regional training Seminars for private and public-sector counsel working primarily in the energy sector, a total of thirty-nine (39) African Lawyers’ Associations, making it the most far-reaching series of events that PALU has organized to date. Also, in this project, PALU organized two continental conferences of National and Regional Lawyers’ Associations and developed and adopted the Code of Ethics on Anti-Corruption and Professional Compliance Standards for Lawyers Working in Africa, which was disseminated to all Lawyers Associations in Africa and is continuously receiving signatures and support from legal professionals in Africa.

Public interest advocacy by PALU

PALU engages the length and breadth of the African Union (AU) organizational landscape, and, among other things, has acted as Consultant for the AU, the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights as well as the African Governance Architecture (AGA). Over the years, PALU has developed an enviable place for itself as a Civil Society Organisation (CSO) engaging and engaged by the AU organs and institutions, and also the major Regional Economic Communities (RECs) and other African Regional Organizations. This is aided by PALU having a Memorandum of Understanding (MoU) with the AU, formalised in 2006, which led to PALU being routinely involved in the activities of the Office of the Legal Counsel (OLC), the Department of Political Affairs (DPA), the African Court on Human & Peoples’ Rights (AfCHPR), the African Union Commission on International Law (AUCIL) and the Pan African Parliament (PAP), amongst others.

 

In an effort to hold States accountable vis-à-vis their responsibilities under the African Charter on Human and Peoples’ rights (African Charter) and various other international treaties that they have adhered to, and in exploring the links between litigation, jurisprudence and transitional justice, PALU remains the most prominent and active external partner of the African Court on Human and Peoples’ Rights (African Court) and also the East African Court of Justice (EACJ). It has been directly involved in more litigation at these Courts than any other institution. It was the first organisation to be granted Amicus Curiae status at the African Court and also the first organisation to be appointed as a Legal Aid Provider at the African Court, and has helped the African Court in more than twenty (25) cases to date, mainly by providing pro bono legal aid to indigent litigants, but also through requests for Advisory Opinion; and more than seventeen (17) cases at the EACJ, either through direct filing of cases, representation of litigants, or by way of Amicus Curiae briefs.

The state of relations within the organised legal profession in Africa

As elsewhere in the world, African lawyers are engaged in a wide range of professional activities, from private practice in law firms; service in arms of governments (Judiciary, Legislature, Executive); service in various autonomous, semi-autonomous or non-autonomous governmental agencies; diplomatic service; service in intergovernmental or international organisations; work with civil society organisations (CSOs), etc. In the course of the above activities, many lawyers have organised themselves into institutions e.g. of private lawyers, of judicial officials, prosecutors, academics, etc. These lawyers associations exist at various levels e.g. sub-national, national, regional, continental and international levels. In the rest of this Paper, we will focus on how lawyers in private legal practice have organised themselves.

 

As a general rule, these lawyers’ associations undertake one or a combination of the following activities/ services: –

 

  • Regulation of the profession: education, admission, setting and enforcing practice standards and rules, discipline, etc. This includes professional development and capacity-building for members.
  • Representation of the profession (“trade union” function): representing the profession to the government, the public and the global legal community, etc. This includes procuring benefits, expanding member practice horizons, providing networking opportunities for members, etc
  • Public Interest: contributing to development: political, economic, social and cultural. Administration of justice. The just rule of law. Constitutionalism. Democracy and good governance. Protection and promotion of human rights. Law reform and access to justice, etc. At supra-national level includes people-centred regional integration and globalization

 

  1. National Lawyers Associations (NLAs)

Most of the countries in Africa have a national-level lawyers’ association (either a Bar Association or Law Society), many of which are established by a specific Act of Parliament, and are mandated to regulate the profession. Some of the countries have the regulatory role devolved and undertaken by lawyers’ associations established at State, provincial, regional, district or city level. In such instances, the national association acts as an umbrella, or a collective of the leadership of the other associations.

 

Many countries also have Specialist Lawyers Associations operating at the national level e.g. women lawyers’ associations, human rights lawyers associations, legal scholars/ Law teachers associations, etc. There are also ‘Sub-National’ Lawyers Associations (i.e. established and operating at State, provincial, regional, district or city level) without a regulatory mandate. In different contexts these are formally incorporated into, or operate in loose relations with the premier national lawyers association.

 

  1. Regional Lawyers Associations (RLAs)

The continent also has a number of regional lawyers’ associations, which are at various levels of institutionalisation. The most institutionalised are the East Africa Law Society (EALS) and the Southern African Development Community Lawyers Association (SADC-LA). The West African Bar Association (WABA) was quite active a decade ago, but is not so active now. We hope that it will be reactivated soon. The Union of National Bar Associations of Central Africa (UNAAC, its French acronym) had also been inactive over the past decade, but there are signs that it is being revitalised. There was an initiative to establish the Arab Maghreb Lawyers Union (AMLU) to specifically cater for northern Africa, but, to the best of our knowledge, this process has not matured. Several North African lawyers are active in the Arab Lawyers Union (ALU), which covers the Middle East and North Africa (MENA) region.

 

Both EALS and SADC LA undertake a wide range of representative functions for their members as well as public interest advocacy. Both have also advocated for cross-border legal practice, which is still a work-in-progress. For instance, EALS has been advocating for liberalization of regional trade in professional legal services in East Africa; inputting into the draft EAC Bill on Cross-Border Legal Practice (CBLP); contributed to the Framework Paper for Harmonisation of legal education, training and certification; and also worked on developing a Mutual Recognition Agreement (MRA) for the region in partnership with the EAC Secretariat and the national Law Societies.

 

  1. Continental Lawyers’ Associations

As indicated above, the premier continental association of African lawyers and lawyers’ associations is PALU.

 

International Lawyers Associations and their imprint in Africa

Several international lawyers’ associations have an imprint in Africa. This includes having African lawyers (both based on the continent and elsewhere) as their members, or offering leadership in the various structures of these associations. The associations frequently hold conferences, seminars or workshops in – or on – Africa, and on several practice issues therein e.g. oil and gas, arbitration, etc. Some have longer-term capacity-building initiatives for lawyers associations, law firms or individual lawyers. Some also carry out public interest advocacy activities e.g. fact-finding or solidarity missions, trial observations, filing Amicus Briefs in litigation, etc.

 

Some of the prominent international lawyers’ associations are: –

 

  1. American Bar Association (ABA), which has a Section on International Law (SIL) and an Africa Committee within it.
  2. Arab Lawyers Union (ALU), which, as indicated above, straddles the Middle East and North Africa (MENA) region.
  3. Commonwealth Lawyers’ Association (CLA), which has had African lawyers in its apex leadership including the Presidency, and which has held several of its bi-annual conferences in Africa.
  4. Conférence Internationale des Barreaux de Tradition Juridique Commune (CIB), which brings together lawyers and lawyers’ associations from Francophone countries across the continents.
  5. Forum on China-Africa Co-operation (FOCAC), which has had a section for lawyers and has also been holding annual meetings between African and Chinese lawyers, to discuss issues of mutual interest.
  6. International Bar Association (IBA), the largest international association of lawyers, and has hundreds of African lawyers active in its: –
    1. Divisions, Fora, Committees, Working Groups
    2. Bar Issues Commission (BIC)
  • African Forum of the IBA (AfRIBA)
  1. Human Rights Institute (HRI)
  1. Union Internationale des Avocats (UIA), which is also a prominent international association of lawyers that strives to operate in at least three languages: English, French and Spanish

 

Individual Lawyers and Law Firms

The focus of this paper is how to enhance relations within the profession of lawyers across borders. Thus, even while discussing the activities of individual lawyers, it will be with this lens in mind.

 

Loose relations amongst lawyers and/ or law firms

Many lawyers and law firms have formed loose relations or even ‘best friends’ relationships with other lawyers and law firms across borders, or even across the regions of Africa. As such they are able to refer legal business to each other or to collaborate with each other and work jointly on legal assignments. Some of these arrangements are reduced into writing e.g. Memoranda of Understanding, Joint Venture Agreements, etc.

 

Meetings and activities of the continental and regional lawyers associations have formed a rich networking ground for such lawyers and law firm leaders to meet, socialise and explore working together.

 

Law Firm Alliances

Many lawyers and law firms have also entered into more formal arrangements of Law Firm alliances, both limited within Africa or joined part of larger, international law firm alliances. As such, a number of international law firms now have offices in several African countries.

 

The terrain in which law, and especially international business law, is practised in Africa is therefore very diverse and dynamic, with a wide range of actors, both African and non-African. A number of African Lawyers’ Associations (operating at national or regional levels) have tried to oppose or resist lawyers not admitted to the respective national Bar, or international law firms generally, from operating willy nilly within their countries. They have mostly been unsuccessful, partly because it is their own governments as well as big corporate entities within the same countries that instruct such law firms/ law firms alliances. But they seem to have been more successful in stopping fellow African lawyers from enjoying the same opportunities.

 

Dynamics within the legal profession

As with the legal profession elsewhere in the world, there are several dynamics that African lawyers are dealing with, that influence how the profession is developing, and how legal professionals are interacting across borders and internationally. One issue is the size of the law firms, i.e. Big Law Firms, Medium Law Firms and Small Law Firms/ Sole Practitioners. The majority of African law firms still exist as sole practitioners or very small partnerships, with three to five partners, and perhaps some associates. However, the numbers of medium-sized and large law firms are also growing, in tandem with the growth in the size of the profession, as well as the growth in the size and complexity of our populations and our economies. Governments (which are the largest consumers of services) and big corporate entities tend to prefer larger law firms for their critical legal assignments. There is, however, still scope for small niche or boutique legal practices that specialise on specific subjects.

 

There are also dynamics around the big city lawyers and law firms, vis a vis their counterparts who practise law in the smaller towns or in the rural areas (up-country). These issues are mostly experienced and deliberated in country. However, in some regions (East Africa, for instance) we are seeing small up-country law firms, based near the countries’ borders, beginning to associate and collaborate more with similar firms across borders.

 

There is also vibrant discussion, formally and informally, within the profession around trends towards specialization in specific legal practice disciplines vis a vis the ‘traditional’ general legal practice. There are strong arguments in favour of each of the trends, and it appears this debate will continue for a long while. However, it is also accurate to note that more and more lawyers, especially younger lawyers, are specialising in specific niches. This, then, provides an opportunity for such lawyers and law firms to link up with like-minded lawyers and firms across the continent or even globally, and perhaps join specialist lawyers’ associations or even informal lawyers caucuses for this purpose.

 

Within many countries there are also dynamics between senior legal practitioners (including ‘Silks’) and younger lawyers. These range from very positive mutual co-existence and even mentoring relations, to rather acrimonious and even hostile relations. PALU advocates for a profession for all generations, and indeed for a ‘3G’ approach, i.e. consciously promoting diversity of Gender, Generation and Geographic spread. Obviously the senior legal practitioners, especially those from established law firms, have more resources and time at their disposal and it is therefore easier for them to associate across borders, regions and globally. PALU therefore constantly strives for innovative partnerships and means of ensuring that both women and young lawyers, and lawyers engaged in non-traditional legal practice areas find their way into, and are fully accommodated, in PALU spaces.

 

CROSS BORDER PRACTICE IN AFRICA

Cross-border Legal Practice can be defined as legal practice transcending more than onecountry, or linking people from different countries. It relates to the provision of legal services between a minimum of two states i.e. beyond the jurisdictional borders of the lawyer’s state.

  1. Terry in his article ‘’GATS’ Applicability to Transnational Lawyering and its Potential Impact on U. S. State regulation of Lawyers’’, referred to Cross Border Legal Practice as:

‘’…the general situation in which a lawyer, originally licensed in one jurisdiction, the Home State, provides legal services in another jurisdiction, the Host State. This can occur when the lawyer physically travels to the Host State, or when the lawyer provides services through other means…”

 

Most African lawyers, are sole jurisdictional, meaning that they are mostly restricted to their state jurisdiction. Recently, however, with the introduction of globalization, there has been a move from practicing the law solely in their particular jurisprudence to the increase in cross-border performance and transactions.The rising economic incorporation requires this shift, which leads to larger mobility of lawyers in cross-border law practice. There are a variety of factors, which lead to the increase of cross-border law practice, including but not limited to the following:

  • Changing of regional economic activities;
  • Emergence of new practice areas that includes project finance, capital market, and private equity;
  • Emergence of internet age and online platforms; and
  • Needs and demands of cross border clients

The ongoing increase in the size of cross-border law practice started as a result of the 20th century globalization. It has fueled an enormous boost in the possible for cross-border exchange of services and goods. With the coming into effect of AFCTA, the possibilities are endless for the African Lawyer. The position of PALU is that:

  • African lawyers need to grasp all opportunities on the table and utilize all available opportunities in order to enhance the possibility.
  • African legal profession shall invest in efforts to join forces with transnational business players and earn their trust
  • African states must have the courage to take calculated risks and progresses in both local, regional and global laws.
  • Professional associations shall be realistic and take appropriate action plans to realize these dreams;

Dear Colleagues, the need for cross-border legal practice is almost a mandatory situation as far as Africa is on the way to actualize the African Continental Free Trade Agreement.

Trade in Legal Services: Current Realities and Future Possibilities

If we focus on the African legal services delivery in the 21st century vis-à-vis globalization and its consequential effects on cross-border legal services, and the regulatory mechanisms required to checkmate the practice, the basic questions for us to answer will be:

How can law and legal regulations catch up with technological innovations?

What is the position of African Countries with respect to cross-border legal services, and whether there are adequate regulatory legal frameworks?

 

Trade in legal services is the commercial exchange both in domestic and international market, of legal services to clients for a remuneration, which can occur anywhere.

It is also the act of rendering skilled legal services to a client within a particular jurisdiction or beyond, for certain fees.

 

Trade in services between States and citizens across borders are not uncommon. However, with the introduction of digital trading, it has changed the nature and operation of trade in services by reducing the relevance of traditional at-the-border barriers to trade, like tariffs and licenses.

In view of this, there is need for regulatory mechanisms and domestic policy regulating trade in digital legal services in Africa.

Current realities in trade in legal services in Africa

Most African countries enact laws and practice requirements that bar or make it impossible for foreign legal practitioners to practice fully in their countries.

  • For instance Countries like Kenya, Uganda & Tanzania in East Africa apply nationality requirements to practice their domestic laws or to be admitted to their respective bars.
  • South Africa also has a similar requirement. Only citizens and permanent residents are eligible for admission to their respective bars.
  • In Nigeria, Non-Nigerians can be admitted into the legal profession to practice. However, they are required to satisfy very stringent and rigid requirements. Currently, the legal position is that no foreign lawyer shall engage directly in any form of legal practice in Nigeria. The only exception to the above is provided by section 2(2) of the LPA, which empowers the Chief Justice of Nigeria to grant a person warrant for purposes of specified proceedings and appeal brought under such proceedings.

 

The legal effect of African Continental Free Trade Agreement (ACFTA) to the trade in legal services

 

The future of the legal profession in Africa

In Africa, as elsewhere, recent developments in information and communications technologies are having a profound impact on the legal profession, and this disruption will only intensify in the coming years. This, therefore, was the theme of the last PALU Annual Conference, held in Lomé, Togo in July 2019: “The future of the legal profession in Africa: Effective tools to succeed in a changing environment.” We considered various developments such as 5th-generation Internet (5G); Artificial Intelligence and Machine Learning (and its impact on, for instance, conveyancing practice); Robotics; Blockchain (and its impact on Contracts, money, etc); Cryptocurrency, etc. We also broached the topics of ‘financialisation’ and ‘digitalisation’ and the impacts these are having on our economies. We also commenced discussion on the proliferation of legal advice websites (whether free or for a fee) and how these are impacting on ‘traditional’ lawyers and law firms.

 

By the end of the conference, in terms of a way forward, we resolved that PALU will: –

  • Place more reliance on its ICT Committee, to provide a space for members, worldwide, to continue to work on these issues and to provide direction and highlight opportunities for members
  • Undertake more Online Seminars (Webinars) not only on this area of the law, but generally, so that we can build capacities of more members, especially our younger members who are not always able to travel to our conferencesand other events
  • Setting up a ‘Future of Law’ Incubator at the PALU Secretariat
  • Continuously advocate for new ways of doing our work, and new specialisations within the profession
  • Continue to engage the African Union (AU) to offer leadership, practical guidance and assistance to Member States to formulate policies and laws for benefiting from these technological innovations and evolutions

 

The crux of ACFTA is the reduction of trade barriers such as removing import duties and non-tariff barriers.

Upon the coming into effect of ACFTA, there will be an urgent need to amend the domestic legislations that serve as barriers to cross border legal services, so that the aims and objective of this treaty with respect to trade in legal services will be achieved.

 

Opportunities and challenges within the legal profession in the continent

As has been demonstrated above, especially in the context of enhancing relations within the profession of lawyers across borders, there are a number of challenges that the leadership of the profession is dealing with. However, all of these challenges carry within them opportunities for further growth and development of the profession, and of our broader society, polity and economy. The PALU approach is therefore to embrace these as opportunities that can be harnessed, as we go forward.

 

Cross-border legal practice within the regions – As indicated above, there have been robust proposals, both from within the profession and beyond, including from governments and from the Regional Economic Communities (RECs), for legal practice to be region-wide, as part of regional economic integration. Whereas the matter has been discussed for close to two decades now, there is no region in which this has been attained. Within the profession there are at least two ‘schools of thought’, ranging from the ambitious and progressive to the conservative. Both sides have strong arguments. This remains an area of discussion.

 

Cross-regional practice within the continent – As with the above, some progressive voices have been calling for the profession (at least the pioneers within it) to think beyond the regions, and begin opening up for continental legal practice. This remains an area of discussion, and may, in fact, be strengthened as we move into the implementation phase of the African Continental Free Trade Area (ACFTA).

 

International law firms with an imprint on the continent – As indicated above, we have both international law firms, and international law firm alliances, present and active in many parts of Africa. The terrain in which law, and especially international business law, is practised in Africa is now very diverse and dynamic, with a wide range of actors, both African and non-African. Indeed, even for the international law firms, their Africa portfolio is composed of very many African lawyers, some who studied in Africa, are admitted to African Bars, and have strong personal, family, social and economic relations in Africa.

 

African Continental Free Trade Area (ACFTA) – Recognizing that intra-African trade is key to economic transformation of the continent, the 18th Ordinary Session of the Assembly of Heads of State and Government of the African Union (AU), also called the AU Summit, held in Addis Ababa, Ethiopia from 29 to 30 January 2012, adopted a Decision to create an African Continental Free Trade Area (ACFTA) by an indicative date of 2017. On the same occasion, the Summit also endorsed the Action Plan on Boosting Intra-African Trade (BIAT), which identifies seven clusters: trade policy, trade facilitation, productive capacity, trade related infrastructure, trade finance, trade information and factor market integration.

 

African leaders held an Extraordinary Summit on the African Continental Free Trade Area (ACFTA) from 17 to 21 March 2018 in Kigali, Rwanda. At this Summit the Agreement establishing the ACFTA was presented for signature, along with the Kigali Declaration and the Protocol to the Treaty establishing the African Economic Community relating to the Free Movement of Persons, Right to Residence and Right to Establishment. In total, 49 out of 55 AU member states signed the consolidated text of the ACFTA Agreement, 47 signed the Kigali Declaration and 30 signed the Protocol of Free Movement. Currently, fifty two (52) countries have signed and 22 have ratified the ACFTA. 37 countries have signed the Protocol on Free Movement of Persons (FMP) and only (1) country Rwanda has ratified it.

 

The ACFTA brings together all 55 member states of the AU, covering a market of more than 1.2 billion people, including a growing middle class, and a combined gross domestic product (GDP) of more than US$3.4 trillion. In terms of numbers of participating countries, the ACFTA will be the world’s largest free trade area since the formation of the World Trade Organization (WTO). Estimates from the United Nations Economic Commission for Africa (UNECA) suggest that the ACFTA has the potential not only to boost intra-African Trade by 52.3% by eliminating import duties, but also to double this trade if non-tariff barriers are reduced.

 

The main objectives of the ACFTA are to create a single continental market for goods and services, with free movement of business persons and investments, and thus paving the way for accelerating the establishment of the Customs Union. It will also expand intra-African trade through better harmonization and coordination of trade liberalization and facilitation and instruments across the RECs and across Africa in general. Furthermore, the CFTA should enhance competitiveness at the industry and enterprise levels through exploitation of opportunities for scale production, continental access and better reallocation of resources.

 

This great prospect was the theme of the 2018 PALU Annual Conference, held in Tunis, Tunisia in September 2018: “One continent, One People, One Economy: Developing Africa through Continental Free Trade and Movement.” We considered the important developments of the year, especially the: –

  • Agreement establishing the African Continental Free Trade Area (ACFTA) (Consolidated Text)
  • Kigali Declaration
  • Protocol to the Treaty establishing the African Economic Community relating to the Free Movement of Persons, Right to Residence and Right to Establishment
  • Single African Air Space Agreement (SAATAM)

 

For each of these instruments, we surveyed their key provisions, prospects, challenges and the Way Forward. We resolved that, as African lawyers, we would continue to fully support and engage in the processes of negotiation, adoption, ratification, domestication and full implementation of these instruments, for the benefit of the people of Africa. We also acknowledged that they formed a strong basis for enhanced legal practice, which would also benefit our members directly. This, therefore, continues to be a growth area for PALU and its members.

Border/Immigration Requirement – Despite the wave of globalization and integration sweeping across the planet, it is still the case that most countries in Africa still have stringent entry requirements for other African countries, making travel within the continent difficult.

According to the “Africa Visa Openness Index”, a report published by the African Development Bank, Africans require visas to travel to 55% of other African Countries compared to North Americans who require visas to travel to 45% of African Countries. The report also states that Africans can get visa on arrival in 25% of African Countries compared to 35% for North Americans .

Divergence of Laws & Legal Systems: Many African Countries are split between the civil law and common law systems of law as a result of their colonial history. Thus, liberalization of the practice of law within the continent will present contextual challenges due to variance of laws, legal systems andlanguages.

Anti- Competition – A lot of legal practitioners within the African continent are threatened by the ongoing liberalization of the legal services market in Africa. They feel that their better-equipped foreign counterparts will flood the market and push them out of business.

African lawyers must realize that with globalization and ACFTA, cross border legal practice is here to stay and liberalization of markets is ultimately inevitable. What we should seek to do is harmonize legal practice across borders in order to eliminate all existing barriers. This will ultimately improve the standard of the legal profession in Africa and the quality of services, which is supplied to other important sectors of the economy.

Some recommendations for the way forward 

Having given an overview of the developments and dynamics around enhancing relations between lawyers and lawyers’ associations on the African continent, and also given a snapshot of what, specifically, PALU is doing about these issues, I now conclude the Paper with some recommendations for the way forward.

 

For the individual lawyer – We urge as many lawyers as possible: female and male, young and old, whatever their area of practice or employment or engagement, to become active in the associational life of the profession, at national, regional, continental and global levels. We appreciate that no individual can be everywhere; nonetheless we encourage lawyers to consciously diversify their associational engagements, in order to learn, brand themselves, network, collaborate with colleagues, both for improvement of their professional life and income, and to work with others to make the profession, and our overall society, polity and economy better than it currently is.

 

For the law firm – Similar to individual lawyers, we encourage law firms to similarly brand themselves as corporate entities and ensure recognition as (corporate) players in our associations and our societies. Law firms can contribute a lot, in terms of corporate social responsibility (CSR) to develop the profession. They do this by

  • Being active in the Committees, Task Forces, Working Groups and Fora of the lawyers’ association
  • Providing legal advice and representation, on a pro bono basis, to the lawyers’ associations, especially when they are acting in the public interest
  • Sponsoring initiatives, activities and events within the lawyers’ association and in the broader society
  • Giving internships, pupillage and other forms of mentoring and learning to law students, Bar candidates and young lawyers generally
  • Undertaking pro bono legal advice and representation of indigent clients and communities

 

For the lawyers’ associations (national, regional, continental, international)  – As has been alluded to severally above, the terrain in which law, and especially international business law, is practised in Africa is very diverse and dynamic, with a wide range of actors, both African and non-African. In many of the jurisdictions, like in Nigeria, the size of the profession is also growing rapidly, and we are now faced with the prospect of lawyers without work, or with very poor quality work. The leadership of National Lawyers’ Associations (NLAs), especially those that have regulatory mandates, thus have a daunting task to ensure that the regulatory, representative and public interest services that they offer match the expectations of the members of the profession, the public and the respective governments (executive, legislative and judicial arms). They have to ensure the right mix of policies, strategies and resources (human, technical and financial) are deployed. It is especially important that they have comprehensive strategic plans; empowered, proactive and dynamic members’ Committees, Task Forces, Working Groups and Fora; and that they have, within their Secretariats, sufficient numbers of appropriately knowledgeable, skilled and experienced staff that can serve the profession.

 

The most serious challenge that the regional and continental lawyers face is one of resources, especially sufficient financial resources to undertake their regulatory, representative and public interest functions. The bedrock for sustainable operations of any lawyers’ association (or indeed any professional membership association) is contribution from members, by way of subscriptions (individual and/ or institutional) and donations (in cash and in kind, including donations of time and skills to undertake the work of the association). The experience of EALS, SADC LA and PALU has been that: –

  • In the past, EALS had universal individual membership, meaning all practising lawyers in the East African Community (EAC) Partner States would pay subscriptions (initially USD 20, and later USD 50 annually) to EALS, through the national lawyers associations (NLAs). In this epoch, EALS was able to carry out its governance, regulatory, representative and public interest mandates effectively and efficiently. Unfortunately, sections of the members thereafter persuaded their colleagues to abolish this scheme.
  • For SADC LA and PALU, individual membership has always been voluntary, i.e. any individual lawyer who wants can apply and become an individual member. The numbers of individual members are insufficient, at the moment to sustain the respective organisations. Their collective subscriptions get absorbed in the governance functions of the annual conference, with its attendant meetings of the Council, and, triennially, the General Assembly.
  • The institutional subscriptions (from their institutional members) are well appreciated, but are too little to undertake the work of the organisation.

 

The regional and continental lawyers associations need the committed support of the national lawyers’ associations, law firms and individual lawyers, in order to develop and sustain sufficient internal capacity to undertake their roles.

 

For the governments and intergovernmental organisations – The greatest task that we have of our governments and our intergovernmental organisations is to live up to their commitments, which are institutionalised in their national constitutions and in multiple international legal instruments, to do the best they can to foster an environment of constitutionalism, democracy, good governance, the just rule of law and the promotion and protection of human and peoples’ rights. If they did their best in striving for this, the entire society would be progressively prosperous, and this would naturally include the legal profession.

 

Role of PALU in enhancing relations amongst lawyers and lawyers’ associations

 

As we have tried to demonstrate above, in the 18 years of its existence, and in the 10 years in which it has had a Secretariat, PALU has strived to grow from strength to strength, albeit in challenging circumstances, to offer its regulatory, representative and public interest services. We have institutionalised our annual conference as the premier meeting ground for Africa’s lawyers and their friends. We have undertaken significant capacity building and mutual solidarity and support initiatives and interventions for our institutional members, i.e. regional lawyers associations (RLAs) and national lawyers associations (NLAs). And we have engaged international, continental and sub-regional organisations, and also individual member states, on a wide range of public interest issues.

 

As we go forward, PALU will continue exploring innovative ways, including by way of smart partnerships with like-minded organisations, to provide these services, and to build a sustainable and responsive legal profession that will last well into the future. That future is now.

 

Thank you for listening

Call Bridget Edokwe Esq on 08060798767 or send your email to ngbarrister@gmail.com

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