Professional Documents
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Professional Practice and Ethics For Law
Professional Practice and Ethics For Law
By Solicitor Katura
LEGAL PROFESSIONAL
THE CONCEPT OF LEGAL PROFESSIONAL IN
TANZANIA
The legal profession in Tanzania can be divided into three sections: the Bench, the Private Bar and
the Public Bar. The Bench is composed of at least 5 Court of Appeal judges, at least 15 High Court
judges, and several Resident, District and Primary Court magistrates. The Private Bar is composed
of the advocates engaged in private practice in law while the Public Bar is made up of State
Attorneys who act on behalf of the Government and are employed in the Attorney General’s
chambers, and the Corporation Counsel employed by the Tanzania Legal Corporation who act on
behalf of public corporations.
1) WHO IS AN ADVOCATE?
The Law defines an advocate as any person whose name is duly entered upon the Roll
As provided under The Advocates Act Cap 341
Section 2 "advocate" means any person whose name is duly entered as an advocate upon
the Roll;
PRIVILEGE MONOPOLY
Enrolment as an advocate carries with it a privilege monopoly, Advocates are the only persons in
Tanzania who are entitled to practice law, generally in all regular Courts and most tribunals, except
in Primary Courts.
As provided under The Magistrates' Courts Act Cap 11
Section 33.(1) No advocate or public prosecutor as such may appear or act for any party in
a primary court.
Advocates shall use the tittle of “Advocate of the High Court of Tanzania”
As provided under The Advocates Act Cap 341
Section 66. Any person duly admitted as an advocate shall be an officer of the High Court
and shall be subject to the jurisdiction thereof.
ADVOCATES' SENIORITY
Advocates' seniority as among themselves depends on their respective names on the Roll of
Advocates.
As provided under The Advocates Act Cap 341
Section 9.- Advocates shall take precedence among themselves according to the order of
entry of their respective names on the Roll.
2. Duties to other advocates - An advocate shall not in any way communicate or negotiate or
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By Solicitor Katura
call for settlement upon the subject matter of controversy with any party represented by an
advocate except through the advocate representing the parties. Also An advocate shall do his
best to carry out all legitimate promises made to the opposite party even though not reduced
to writing or enforceable under the rules of the Court.
As provided under The Advocates (PROFESSIONAL Conduct And Etiquette)
Regulations, 2018
Reg 82.-(1) An advocate shall treat and deal with other advocates courteously and in
good faith.
(2) Each advocate engaged in a matter has a duty to deal with the other advocate in a
fair and courteous manner so as to promote the public interest that requires a matter
entrusted to an advocate be dealt with effectively and expeditiously.
3. Advocate duty to Court – The advocate is obliged never to mislead the Court, resist all
attempts at distortion, he must make sure that the Court is aware of all decided cases on the
point at issue.
As provided under The Advocates (PROFESSIONAL Conduct And Etiquette)
Regulations, 2018
Reg 92.-(1) As an officer of the court, an advocate shall treat the court with candour,
courtesy and respect.
2. The Council of Legal Education – The Council is introduced to determine the petitioners'
knowledge of language of the Court, procedures, practices and the laws applicable in
Tanzania. A panel of the Council for Legal Education composed of the Chief Justice or his
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By Solicitor Katura
representative; the Attorney-General or his representative; the Dean of the Faculty of Law of the University
of Dar es Salaam or his representative; and two practicing advocates elected by the Law Society.
As provided under The Advocates Act Cap 341
Section 5A. (1) There is hereby established a Council of Legal Education which shall consist of–
(a) the Chief Justice or his representative;
(b) the Attorney-General or his representative;
(c) the Dean of the Faculty of Law of the University of Dar es Salaam or his representative;
(d) two practising advocates elected by the Law Society.
A) Before 2007 there were various procedures for admission to the bar which are hereby
described;-
v) BAR EXAMINATION.
The petitioner after knowing the schedule for bar exam and is one of them had to appear before
council for legal education to be tested his understanding on legal system and court system of
Tanzania and laws in legal field. The council for legal education was responsible for assessment of
the competence of the expectant legal practitioner.
After 2007 procedures for admission to the bar in Tanzania Mainland changed a lot if they
can be compared to the procedures before 2007. As there was introduction of Independent
institution known as law school of Tanzania which is responsible for offering practical
training for law graduates.
Professional Practice and Ethics
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i) BACHELOR OF LAWS DEGREE
The person who wants to practice law in Tanzania mainland need to be law graduate with bachelor
of laws degree or equivalent qualifications recognized by the council for legal education in
Tanzania.
As provided under The Law School Of Tanzania Act, 2007 (ACT No. 18 ).
Section 11.(1) A person is eligible to undertake a programme of practical training
conducted by the Law School for the purpose of this Act if that person has obtained;-
(a) A bachelor degree in law or
(b) Other qualification from accredited institution which the council considers to be
equivalent to a bachelor degree in law.
A Candidate must be physically present during the ceremony, in order to personally inscribe his
signature on the Roll of Advocates and his presence ensures that he is directly participated in the
initiation process by which a new member of the profession is welcomed.
At the Ceremony the candidates are called out one after another, each one is admitted individually
upon the Chief Justice signing the Certificate of admission, then the Registrar signs the practising
certificate and issues it to the Candidate.
As provided Under The Advocates Act Cap 341
Section 34. It shall be the duty of the Registrar to issue in accordance with the provisions of
this Part certificates authorising the advocates named therein to practise as advocates.
The name of the Candidate is duly entered upon the Roll of advocates and the new advocate
appends his signature against it. The practicing certificate by the Registrar of the High Court is
renewable every year.
As provided under The Advocates Act Cap 341
Section 38.(1) Every practising certificate shall, subject as hereinafter provided, take effect
on the day on which it is issued by the Registrar:
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Similarities that exist between both procedures as follows:-
1) Both procedures demands holding bachelor of law degree or equivalent qualification as
mandatory requirement for qualifying process and admission to the bar. Section 8 (1) of the
Advocates Act and section 11 (1) of the Law School of Tanzania Act demand possession of law
degree or equivalent but recognized by the council for legal education.
2) Both procedures involve the petition to the chief justice. Procedures for admission to the bar
before 2007 involved petition to the chief justice before attending bar exams whilst after 2007
involved the same before clearance before the chief justice. The aims of such petition were to seek
admission and enrollment as legal practice since chief justice is vested with the power of granting
the permission sought.
3) Both procedures required the appearance before chief justice. Before and after 2007 procedures
for admission to the bar required the person to appear before chief justice for purpose of
determining the suitability and character of person before enrollment and admission to the bar for
practicing law in Tanzania mainland.
4) Both procedures for admission to the bar are accompanied by the admission and enrollment
ceremonies. The last stage after successful passing through other procedures is attending the
admission ceremony whereby involved the enrollment in the roll of advocates which allow them to
practice law in Tanzania mainland.
2) After 2007 procedures for admission demanded the law graduate to possess the post-graduate
diploma in legal practice which is offered by the law school of Tanzania. Whilst before 2007
procedures for admission to the bar demanded certificate of internship and the certificate of
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pupilage and character which were useful for petition to the chief justice.
3) Before 2007 procedures for admission to the bar were regulated by the Advocates Act and the
regulations and rules made there under while after 2007 the governing laws are the Advocates Act,
its rules and regulations and the Law School of Tanzania Act and its rules and by laws made there
under.
The legal frame work that governs professional conduct, ethics and etiquette of practise of law in
Zanzibar is mainly contained in the following legislation;-
1. Legal Practitioners decree
2. Legal Practitioners Rules
3. Notaries Public Decree.
The Advocates Act being principal legislation, provides for the establishment of Advocate
Committee.
As provided under The Advocates Act Cap 341
Section 4.(1) There shall be established for the purposes of this Act a committee to be called
the Advocates Committee consisting of–
(a) a Judge of the High Court of the United Republic nominated by the Chief Justice;
(b) the Attorney-General, or the Deputy Attorney-General or Director of Public
Prosecutions;
(c) a practising advocate nominated by the Council of the Law Society.
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It sets down the procedures under which the disciplinary action against an advocate may be
conducted, as provided under PART II ADVOCATES COMMITTEE (Sections 4-5) OF THE
ADVOCATES ACT CAP 341.
It also creates certain prohibition against unauthorized practices by persons who are not admitted as
an advocate and against such acts as tauting and unlawful solicitation of business. As provided
under PART VII PRIVILEGES, RESTRICTIONS AND OFFENCES IN CONNECTION WITH
PRACTICE (Sections 39-48)of THE ADVOCATES ACT CAP 341.
The Act also provides for establishment of Advocate Remuneration Committee and for matters
connected with Remuneration of Advocates. As provided under PART VIII REMUNERATION OF
ADVOCATES (Sections 49-65) of THE ADVOCATES ACT CAP 341.
PROFESSIONAL MISCONDUCTS
MISCONDUCT – Is unacceptable or improper behaviour, especially by an employee or
professional person. Professional misconduct refers to disgraceful or dishonorable conduct not be
fitting an advocate.
Undercutting – This is the charging of fees and remuneration at the rate which is lower than the
set out in the Remuneration Rules. The law says undercutting should not be made public.
As provided under The Advocates Act Cap 341
Section 53. Whether or not any order is in force under section 49, an advocate and his
client may, either before or after or in the course of the transaction of any non-contentious
business by the advocate, make an agreement in writing as to the remuneration of the
advocate in respect thereof.
Contingency fees – These are sometimes called “no win no fee arrangement” or a sum of
money that an advocate receives as a fee only if the case is won. Many lawyers are still not in
favour of contingency fees as contingency fees help those who do not have capacity to pay for
lawyer's services but are willing to pay from a percentage of the award that would be won in the
event a successful litigation.
2. Remunerating the unadmitted – Most of advocate do hire law graduate as legal assistants
in their offices, apart from conducting research, these lawyers perform many tasks like
drafting pleadings, submissions and doing conveyance. Since they are paid for doing that
work then they are offend the legal provisions.
3. Remunerating Rules ignored – Most of advocates admit that when they fix the fees they
never consider the rules, there are considerable variations on the fes charged from one
advocate to another or from one case to another in both contentious and non contentious
matters.
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THE DISCIPLINARY PROCESS
In their personal capacity, advocate like everybody else are liable for both Criminal and Civil
wrongs. Advocate must protect his client's interest and the duty to extend to both contentious and
non contentious business.
DISCIPLINARY AUTHORITIES
There are two main bodies charged with the task of overseeing the disciplinary aspect of the private
legal professional in Tanzania which are;-
1. The Higher Judiciary
2. Advocate Committee
An appeal against such an order is made within 30 days to the Advocate Committee (where it is
made by High Court Judge) or the Court of appeal (from the order of the Chief Justice).
As provided under The Advocates Act Cap 341
Section 22.(2)(c) any advocate aggrieved by any decision or order of the Chief Justice or a
judge of the High Court made in pursuance to paragraph (a), may, within thirty days of
such decision or order appeal–
(i) in the case of a decision or order by a judge of the High Court, to the Advocates'
Committee; and
(ii) in the case of a decision or order of the Chief Justice, to the Court of Appeal:
A High Court Judge may choose to make an order temporarily suspending an advocate from
practice pending a reference to or disallowance of such suspension by the High Court. If
allegations are not proved, the Advocate will be restored to practice.
As provided under The Advocates Act Cap 341
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Section 22.(2)(b) any Judge of the High Court shall have power to suspend any advocate in
like manner temporarily, pending a reference to, or disallowance of such suspension by, the
High Court;
2. It can also handle application made by an advocate himself who wishes to have his name
removed from the Roll.
As provided under The Advocates Act Cap 341
Section 13.(1) The Committee shall have jurisdiction to hear and determine–
(a) any application by an advocate to procure the removal of his name from the Roll;
3. The Advocate Committee has the right of audience thus it must be made a party to appeal.
As provided under The Advocates Act Cap 341
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Section 24A.(3) In any appeal under this section the Committee shall be made a party
thereto and shall have a right to be represented at the hearing and to oppose the appeal.
4. The Advocate Committee has original jurisdiction in the matters concerning advocates
discipline, Appeals from the Committee lie to the High Court.
As provided under The Advocates Act Cap 341
Section 24A.(1)Any advocate aggrieved by any decision or order of the Committee
under this Act may, within thirty days of such decision or order, appeal to the High
Court against such decision or order.
An application against an advocate must be made in prescribed form 1 supported by an affidavit and
sent to the secretary of the Committee.
As provided under The Advocates (DISCIPLINARY And Other Proceedings)
Rules, 2018.
Rule 4. (2) The application shall be either in English or Kiswahili in the Form 1 set out
in the First Schedule supported by an affidavit addressed to the Secretary.
However the Attorney-General may move the Committee into action by any complaint made
against an advocate brought to his notice in any manner whatsoever, whether or not in prescribed
form.
As provided under The Advocates Act Cap 341
Section 11. In the exercise of his power under section 10, the Attorney-General may act
upon information which is brought to his notice in any manner whatsoever.
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In practice;-
Any person can complain to the committee directly or through any one of its members.
1. The complaints are channeled through the secretariat of Tanganyika Law Society.
2. The secretariat will then forward the complaints to the Council of the Society, which will
make a preliminary inquiry to ascertain whether the matter should be sent to the secretary of
the Advocates committee, this is done after taking into account factors such as to whether
the allegation sufficiently disclose a misconduct and whether it is possible for the matter to
be settled before reaching the advocate committee.
3. If the Council considers the allegations contain sufficient facts pointing toward professional
misconduct, it will inform the advocate concerned about the nature of the complaint against
him, and will be given a time to respond.
4. If the Committee considers that an application discloses no prima facie case against an
advocate, it may refuse to hear an application without giving an audience to the applicant
and without requiring the advocate to answer the charges.
5. If the Committee considers that a prima facie case has been established against an advocate,
it shall proceed to hear and determine the matter. Thereafter the Committee will give its
judgment.
N;B - An application for removal of the name of an advocate from the Roll on account of any
defect in his admission and enrollment can only be entertained within six months following his
admission, unless the enrollment was secured by fraud. In other words such an application will
automatically fail if it is brought after six months of being called to the Bar have elapsed.
As provided under The Advocates Act Cap 341
Section 11. Subject as hereinafter provided, no advocate shall be liable to have his name
removed from the Roll on account of any defect in his admission and enrolment, unless the
application to remove his name from the Roll is made within six months after the date of his
enrolment:
Provided that this section shall not apply to any case where fraud is proved to have
been committed in connection with the admission or enrolment.
Where an advocate is enrolled in Tanzania Mainland is also an advocate in other East African
Countries (Kenya, Uganda, Zanzibar). Therefore if he is suspended or his name is struck-off the
Roll in those East African Countries, the effect of that act also applies to his enrollment in Tanzania
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Mainland.
As provided under The Advocates Act Cap 341
Section 25 (1) If any advocate who is also an advocate or legal practitioner, (by whatsoever
name or style designated, of, or is entitled to practise as such in, any reciprocating
Commonwealth country, is suspended from practice in such country by order of a competent
court or other competent authority of or in such country, a note of such suspension shall be
entered by the Registrar against the name of the advocate on the Roll, and thereupon such
advocate shall be suspended from practice as an advocate in Tanzania for the period for
which his suspension from practice in such country remains effective, or until the note of
such suspension is deleted in accordance with the provisions of subsection (3) of this
section, as the case may be.
Only a Chief justice is empowered to order on appropriate cases, that such suspension or striking-
off should not have effect in Tanzania.
As provided under THE ADVOCATES ACT CAP 341
Section 25(3) Notwithstanding anything in this Act contained the Chief Justice may, if he
thinks fit, either on his own initiative or on the recommendation of the Committee at any
time–
(a) order that a note of the suspension from practice of any advocate in an reciprocating
Commonwealth country shall not be entered by the Registrar against the name of the
advocate on the Roll;
3. In the case of an order of suspension, no application shall be made until after the
expiration of two years from the date of such order or of half the period of suspension.
As provided under THE ADVOCATES ACT CAP 341
Section 28.(2)(a) in the case of an order of suspension, no application shall be made
until after the expiration of two years from the date of such order or of half the
period of suspension, whichever is the less, and when an application has been made
and determined no further application shall be made until after the expiration of two
years from the date of such determination.
4. In the case of an order removing a name from the Roll, no application shall be made until
after the expiration of two years from the date of such order.
As provided under THE ADVOCATES ACT CAP 341
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Section 28.(2)(b) in the case of an order removing a name from the Roll, no application
shall be made until after the expiration of two years from the date of such order and
when an application has been made and determined, no further application shall be
made until after the expiration of two years from the date of such determination and, in
the case of subsequent applications, until after the expiration of two years from the date
of the determination of the last previous application:
LEGAL STRUCTURE
According to Union Constitution, Zanzibar is free to enact its own laws in respect to the matters not
falling under union matters, through its own legislature The House of Representative. Matters
relating to justice with the exception of Court of Appeal are not Union matters. Zanzibar is
therefore has its own judicial system from High Court downwards. The legal profession is not
among Union matters. The law on legal practice in Zanzibar is governed by ;-
1. The Legal Practitioners Decree Cap 28
2. The Legal Practitioners Rules
3. The Notaries Public Decree Cap 46
1) Advocate Of The High Court Of Zanzibar – The Legal Practitioners Rules which
govern the admission of the advocate in Zanzibar, provides that the person may be admitted to
practise before the High Court, if he observes the following;-
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1. He must prove that he possesses one of the required qualifications provided under rule 2(b)
of G.N.No.239 of 1946.
2. He must submit testimonials for his good character as the Chief Justice may require.
3. He must satisfy the Chief Justice that he has been continuous residence in Zanzibar for at
least six months or he has been continuously practising in Tanzania, Kenya, Uganda and
Nyasa-Land (Malawi) for not less than five years preceding his application to practice.
The advocate will be entitled to practice as long as he remains on the Roll and takes out an annual
practising certificate. As for special advocates (those who only want to appear in particular case) the
only procedure applicable is that they have to prove the possession of the required professional
qualifications. There is no tradition of conducting official admission ceremonies for new advocates
in Zanzibar. New advocate can be admitted at any time of the year as the Chief Justice may appoint.
The difference between Zanzibar and Tanzania mainland is that, not all Notaries Public are
Commissioner for Oaths while in Mainland all advocates are automatically entitled to practice as
Notaries Public and Commissioner for Oaths onces he is admitted as an advocate.
The admission as an advocate in Zanzibar, is limited to his rights and duties relating to Court
appearance only, he will not have powers to administer oaths, take an affidavit and certify
documents. As provided under Section 2 of OATHS DECREE CAP 7 of the Laws of Zanzibar.
If he also wants to perform theses tasks, he will have to go through another process of petitioning
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and admission. As provided under Section 3 of NOTARIES PUBLIC DECREE CAP 29 of the
Laws of Zanzibar.
N:B;- A person can not be admitted as Notary Public unless he is first admitted as an
advocate. In other words is that, he must first fulfill all requirements for admission as an
advocate and must actually have been so admitted.
PROFESSIONAL ORGANIZATIONS
Zanzibar lawyers have no professional organization like that of Tanzania Mainland (Tanganyika
Law Society). The laws establishing Tanganyika Law Society only cover lawyers on Mainland. As
provided under Section 4 and 8 of TANGANYIKA LAW SOCIETY ACT. Advocates based in
Zanzibar are not eligible for membership, unless they are also admitted as advocates of the High
Court Tanzania.
It is debatable as to whether the penalties prescribed under the Decree for unlawful practise can be
applied to such an advocate, since the decree being the principal legislation does not so provide.
The Mainland statutes clearly state that, unqualified person includes advocate who does not have in-
force a practising certificate.
As provided under THE ADVOCATES ACT CAP 341
Section 39.(1) Subject to the provisions of section 3 no person shall be qualified to act as an
advocate unless–
(a) his name is on the Roll;
(b) he has in force a practising certificate; and
(c) he has a valid business licence, and a person who is not so qualified is in this Part
referred to as an "unqualified person".
The other difference is that, Zanzibar Committee of Remuneration can only regulate remuneration
in non-contentious business. On the other hand, the Mainland Committee of Remuneration regulate
both contentious and non-contentious business.
As provided under THE ADVOCATES ACT CAP 341
Section 49.(2) The Chief Justice or the Remuneration Committee may make orders
prescribing and regulating in such manners as he or it may think fit the remuneration of
advocates in regard to both contentious and non-contentious business.
Where an advocate has committed one of the acts declared to be professional offences, he may be
suspended from practising or his name may be struck off the Roll by an order of a Judge of the High
Court. But no such measures can be made until that advocate has been given an opportunity of
showing cause as to why such an order should not be made against him. As provided under rule 9
of LEGAL PRACTITIONERS RULES of the Laws of Zanzibar.
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Proceedings for disciplinary action must be commenced by way of an application made to a Judge
in Chambers. An application of that nature may be made by the Attorney-General or by any person
aggrieved by the action of the advocate against whom application is made. As provided under rule
10(2) of LEGAL PRACTITIONERS RULES of the Laws of Zanzibar.
Where a rule is made for the advocate to show cause against a disciplinary order, further
proceedings shall be conducted in an open Court. As provided under rule 10(3) of LEGAL
PRACTITIONERS RULES of the Laws of Zanzibar. If an order of suspension or striking-off is
made, the advocate affected may appeal to the Court of the Appeal. However pending the hearing of
the appeal, advocate shall be obliged to serve his sentence and can not continue to practise unless
his period of suspension expires before the hearing of the appeal. As provided under rule 11(1) of
LEGAL PRACTITIONERS RULES of the Laws of Zanzibar.
With the above procedures of discipline, the position in Zanzibar is clearly different from Tanzania
Mainland, such as;-
1. It does not contain many of the provisions that apply on mainland.
2. It does not provide the possibility of review of the sentence after sometimes has passed, or
re-admission to practice for an advocate who may have been struck off the Roll or those
who have struck-off the Roll in other East African Countries.
3. There are no express provisions prohibiting against such acts as advertisement, remunerating
unqualified persons etc.
ASANTE SANA.
Professional Practice and Ethics
By Solicitor Katura
By SOLICITOR KATURA.