Kenyan lawyers (in the foreground) in a court session. Lawyers from EAC partner states can practice in Kenya. Photo/ANTHONY KAMAU
Harmonisation of legal practice in the East African Community is far from being realised despite ongoing efforts to create a seamless field across the region.
Currently, only Rwanda and Kenya — the latter with over 5,000 lawyers of its own — allows legal practitioners from partner states to practice in their countries.
Tanzania and Uganda have an estimated 1,000 lawyers each.
Rwanda has about 350 lawyers while in Burundi, the number has just reached 100.
This brings the number of lawyers in the region to 7,450.
Following bilateral discussions, Rwanda scrapped work permits for partner states citizens, giving Kenyans and other EAC citizens freedom to work in the country.
The East African Law Assembly hopes that once open to all citizens from partners states, the Community will provide an opportunity for the legal fraternity to practise and build capacity in the region.
Bobi Odiko, communications manager East African Law Society said, “There shall be increased regional trade; larger internal markets; cross-border law firm alliances, possibly region-wide law firms.”
Most law firms in the region are sole practices or small partnerships (two-three partners), with some larger firms tending to have five to 10 partners.
Some of the more progressive are members of regional or international law firm alliances for example the Africa Legal Network, Lex Africa, Denton, Lex Mundi and World Services Group.
The EAC has recently advertised and offered a consultancy to a Kenyan firm to assess the laws in the region with a view to harmonising the two systems Common Law (Anglophone) as practised in Kenya, Uganda and Tanzania and Civil Law (Francophone) practised in Rwanda and Burundi.
According to the East African Law Society, a “hybrid model” that picks the best practices of the two shall be the most suitable.
The society has an active Regional Integration Committee comprising representatives from the five partner states and chaired by the society’s vice president Charles Rwechungura.
Its main terms of reference is to maintain contact with members and other stakeholders with regard to issues of regional integration, and to advise and assist the secretariat in the formulation, resource-raising, implementation, monitoring and evaluation of programmes, interventions and activities related to regional integration.
The committee is also looking into harmonisation of laws and specifically beginning with harmonisation of commercial laws as the region fuses the Customs Union into the Common Market.
Generally, some active legal service areas include telecommunications, finance, banking, insurance, corporate, infrastructure and litigation.
Emerging areas include trans-continental mergers and acquisitions, especially in banking, insurance, telecommunications, oil and gas, infrastructure and intellectual property.
The society also has a specific programme focusing on harmonisation of laws under the Programme on Regional Integration in its new Strategic Plan (2008-2012).
The harmonisation faces a myriad of challenges, the biggest being language.
Although English is the official language of the Community, French is widely spoken in Burundi and Rwanda.
To counter this, the society is planning a programme to reach out to the legal fraternity in both countries through building of capacities by offering short-term courses in Legal English.
Lack of a harmonised legal environment has remained a major set back, especially for Kenya, which despite being one of the largest foreign investors in Tanzania, the country’s companies cannot take along their legal representation there yet Ugandan and Tanzanian companies operating in Nairobi bring along their own lawyers.
An additional complication in the integration of the EAC’s legal systems arises from the fact that 2007 newcomers Rwanda and Burundi, have fundamentally different legal systems.
The refusal by Tanzania to allow Kenyan lawyers to practice in the country is viewed in some quarters as a reflection of mistrust.
Kenya set up a law faculty in 1970, long after Uganda and Tanzania. The University of Dar es Salaam was the first to set up one in 1961, followed by Uganda’s Makerere University in 1968.
Under Kenyan law, any foreign advocate who has the approval of the Attorney General may practice as an advocate, for the purpose of any specified suit or matter in the Kenyan courts.
However, such a foreigner must be a lawyer who is entitled to appear before the superior courts of a Commonwealth country.
In Uganda, the laws are different. Uganda has not yet made changes to allow non-Ugandan’s to be admitted to the Roll of Advocates.
However, one can be admitted on an ad hoc basis on petition to a judge, though one would still be disadvantaged in terms of correspondence not being on an equal footing with local lawyers.
Even in Kenya, it is not smooth sailing for regional lawyers.
The former chairman of the Law Society of Kenya Ahmednasir Abdullahi, says it is challenging to practice in Kenya where the number of lawyers is more than the combined number in the other countries.
Even with the restrictions lifted, there are no Ugandan or Tanzanian law firms or lawyers in Kenya.
There are no regional or international law firms that cover the entire EAC region, as is typical in the West.
But individual law firms have begun to take initiatives to develop a cross-border presence for their clients. These are Africa Legal Network, an organisation of six leading law firms in Kenya, Uganda, Tanzania, Rwanda and Burundi.
It was set up in a way that it operates as one legal firm in the region.
The network, includes Anjarwalla & Khanna from Kenya, MMAKS from Uganda, Ringo & Associates from Tanzania, Musa Dudhia & Company from Zambia, Kamanzi, Ntaganira & Associates from Rwanda, and A&JN Mabushi from Burundi.
While Africa Legal Network has taken steps to harmonise work for its clients’ benefits, other foreign lawyers interested in the region have poached highly skilled lawyers from top Kenyan firms as point men for their interests in the region
The collapse of the first East African Community in 1977 created divergent paths, the effects of which are still noticeable today: While Tanzania chose a socialist economic system, Kenya pursued a capitalist economy.
Uganda, in contrast, was beset by violent internal conflicts that translated into a general setback of the legal profession in the country.
Kenya may have been the last of the three countries to set up a law faculty, but today, Kenyan lawyers compete fiercely - sometimes even illegally - for lucrative contracts.
This contrasts sharply with the slower pace of the business in Tanzania
In the current situation therefore, any business located in Kenya that wants to expand into Uganda and Tanzania, must use law firms in the respective countries, or their corporate lawyers would have to partner with domestic law firms.
