Professional Practice and Ethics

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.

THE LEGAL PRACTITIONER

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;

ELIGIBILITY FOR ENROLMENT

In order one to be eligible for enrolment needs to posses certain qualifications
As provided under The Advocates Act Cap 341
Section 8 (1) A person may apply to the Chief Justice to be admitted as an advocate–
(a) if he holds one of the following professional qualifications, that is to say–
(i) if he is the holder of a degree in law granted after examination by the University of East
Africa or the University of Dar es Salaam by such other university or other institution as may
be recognised by the Council for the purposes of this section;
(ii) if he is a legal practitioner (by whatever name called) and thereby has a right of audience
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before any court having unlimited jurisdiction in civil and criminal matters in any
Commonwealth country or in any other country designated by the Minister for the purposes
of this section;
(iii) if he is a Solicitor of the Supreme Court in England, Northern Ireland or the Republic of
Ireland, a Writer to the Signet, a Solicitor in the Supreme Court of Scotland, or a person
admitted or deemed to have been admitted as a solicitor. under the Solicitors (Scotland) Act,
1933, of the United Kingdom, or if he is the holder of any similar qualification which is
accepted by the Council as a professional qualification for the purposes of this subparagraph;

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.

NOTARIES PUBLIC AND COMMISSIONER FOR OATHS

Advocates by virtue of their office, they are also notaries public and commissioner for oaths. They
can witness signatures on and take affirmations, affidavits or declarations. They may witness
documents that are being sent worldwide and certify a true copies of original documents.
As provided under The Notaries Public and Commissioners for Oaths Act Cap 12.
Section 3.-(1) Any of the following persons shall, except as provided in subsection (2), be
entitled to practise as a notary public and Commissioner for Oaths in Mainland Tanzania in
accordance with the provisions of this Act and to levy fees in accordance with the First
Schedule–
(a) an advocate; and
(b) a person entitled to practise as a notary public in England, Scotland, Northern Ireland or
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the Republic of Ireland.

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) TASKS AND DUTIES OF AN ADVOCATE.

Once one is enrolled as an advocate in Tanzania is entitled to practice all acts and things done by
Barrister or Solicitor in England. Every advocate who has a valid practising certificate may practise
as the advocate of the Court of Appeal of Tanzania, the High Court of Tanzania and all subordinate
Courts thereto except Primary Courts. Every advocate in Tanzania mainland is entitled to act as notary
public and commissioner for oaths thus has power to administer oaths and certify the authenticity of
documents.
As provided under The Advocates Act Cap 341
Section 10.-. Every advocate who has in force a practising certificate may practise as an
advocate in the High Court or in any court subordinate thereto constituted under the
Magistrates' Courts Act and may perform any of the functions which, in England, may be
performed by a member of the Bar as such or by solicitor of the Supreme Court of Judicature
as such.

3) LAWYER'S ROLE OUTSIDE THE COURT

Lawyers services are not only rendered in the Court room, the task of a lawyer begins before the
matter goes to Court and continues after Court has done its job. A lawyer has to start with the
following;-
1. Meeting client – This include interviewing skills, listening skills, note taking skills,
counseling skills, establishing relationship with client etc
2. Research – This include research on the cause of action, applicable laws, determination of
party to sue, determination of the forum etc
3. Case analysis - This is that which helps a lawyer to prepare himself well for the Civil trial or
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before Civil litigation. The Case analysis mainly depends on the Cause of action.
4. Legal opinion - Is a written explanation or legal advice on a point of law by a lawyer
(advocate) after making research and analysis of the case.
5. Demand letter - Is a letter stating legal claims which make a demand for performance of
some obligation. It is not mandatory to write a Demand letter but law says its proper to issue
a demand letter if we need costs in civil cases.
6. Informal dispute resolution - This happens when other side decides to call the side from
which demand letter is issued for settling down the claims.
7. Choice of forum - This is a particular Court or jurisdiction on which a particular matter or
dispute arose should be litigated.
8. Drafting pleadings – This means a plaint or a written statement of defence (including a
written statement of defence filed by a third party)
All these tasks above must be performed before the drama in the Court room begins.

4) THE DIVERSITY OF AN ADVOCATE DUTIES

There are various duties attached to advocacy;- duties to himself, to his opponent, to his client, to
the Court and duties to the society.
1. Duties of an advocate - being professionals, are also officers of the courts and play a vital
role in the administration of justice. Accordingly, the set of rules that govern their
professional conduct arise out of the duty that they owe the court, the client, their opponents
and other advocates.
As provided under The Advocates (PROFESSIONAL Conduct And Etiquette)
Regulations, 2018
Reg 55.-(1) An advocate, shall-
(a) represent the client resolutely, honorably and within the limits of the law; and
(b) make every reasonable effort consistent with the legitimate interests of the client to
expedite litigation.
(2) An advocate shall discharge the duties under this regulation by fair and honourable
means.

2. Duties to other advocates - An advocate shall not in any way communicate or negotiate or
call for settlement upon the subject matter of controversy with any party represented by an
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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.

THE QUALIFYING PROCESS AND ADMISSION TO THE

BAR IN TANZANIA

The authorities responsible for admission of an advocate are two;-

1. The Chief justice – Who is the highest judge of the United Republic of Tanzania. He is
appointed by the President and presides the Court of Appeal of Tanzania.
As provided under The Advocates Act Cap 341
Section 8. (1) A person may apply to the Chief Justice to be admitted as an advocate

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
representative; the Attorney-General or his representative; the Dean of the Faculty of Law of the University of
 Professional Practice and Ethics
By Solicitor Katura
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.

THE PROCEDURE FOR ADMISSION

In Tanzania the procedures for admission to the bar is divided into two phases which are before 2007
and after 2007.

A) Before 2007 there were various procedures for admission to the bar which are hereby
described;-

i)DEGREE OF BACHELOR OF LAWS

The person had to possess degree of bachelor of laws offered by institution recognized by the council
for legal education as well as any other relevant credentials and equivalent but recognized by the
council.
As provided under The Advocates Act Cap 341
Section 8.(1) (a)(i) if he is the holder of a degree in law granted after examination by the
University of East Africa or the University of Dar es Salaam by such other university or other
institution as may be recognised by the Council for the purposes of this section

ii) INTERNSHIP PROGRAMME

Then after there was internship. The law graduate had to undergo the internship programme which
was organized by the attorney general chamber but assigned to various departments of the
government. This aimed at offering field training for the law graduates. Moreover, after
accomplishment of such training, The chamber had to award certificate of internship which was useful
for petition to the chief justice.

iii) PUPILLAGE TRAINING

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There was pupillage. The law graduate who had undergone internship programme had also the duty
of attending and participating for the pupillage training but on the side of private legal firms. It was
for field training but on non government departments. After completion of pupillage, the firms had
to award the certificate of pupillage and character.

iv) PETITION TO THE CHIEF JUSTICE.

There was petition to the chief justice. The law graduate with certificates of internship and pupillage
then after had to petition to the chief justice for more qualifying process whereby he or she had to
annex those certificates for determining suitability and character before bar examination for
admission purpose.

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.

vi) APPEARANCE BEFORE CHIEF JUSTICE.

The law graduate who has passed the bar exam had later on to appear before chief justice. The chief
justice determined mainly the suitability of the graduate who passed bar exam and his character so as
to be admitted and enrolled as advocates in Tanzania mainland.

vii) ADMISSION CEREMONY.

There was admission ceremony. Finally the law graduate who has passed the bar exam and appeared
before the chief justice could be able to be admitted and enrolled in the roll of advocates in Tanzania
mainland. Such admission was accompanied by the ceremony.

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.

i) BACHELOR OF LAWS DEGREE

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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.

ii) POST-GRADUATE DIPLOMA IN LEGAL PRACTICE.

Such law graduate is demanded to hold Post-Graduate Diploma In Legal Practice. The diploma in
legal practice is only offered by the law school of Tanzania. Hence law graduate has to undertake law
school studies for qualifying to be awarded the same.
As provided under The Law School Of Tanzania Act, 2007 (ACT No. 18 ).
Section 12.(1) The practical training for the purposes of this Act shall a completion of a
programme of study at the School for a period not less than one year.
(2) A student completes the programme referred to under subsection (1) shall be awarded a
Post Graduate Diploma in Legal Practice.

iii) PETITION TO THE CHIEF JUSTICE.

Law school graduate ought to Petition to the Chief Justice. The petition is directed to the chief justice
who is the highest authority for granting permission to practice law in Tanzania mainland. The
petitioner does so to seek admission and enrollment in the roll of advocates in Tanzania. The petition
must be in the prescribed form. Attached to the petition must be a copy of LLB or other recognised
certificate and two letters of recommendations, one from the petitioners' employer and the other from
a practising advocate. A file in the petitioners' name is then opened in the office of the Registrar of
the High Court. The candidate will then have to wait until time comes for his turn to appear before
the interview of the Council of legal education.
As provided under The Advocates Act Cap 341
Section 8.(2) Every application made under this section shall be by petition to the Chief
Justice in such form and manner and on payment of such fee as may be prescribed.

vi) THE CLEARANCE BY CHIEF JUSTICE

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The petitioner whose petition has been accepted has to make Clearance by the Chief Justice. The
clearance by chief justice focuses on the suitability and character assessment before enrollment of the
petitioner. Also, ethical issues are considered during such clearance.
As provided under The Law School Of Tanzania Act, 2007 (ACT No. 18 ).
Section 12.(3) The Post Graduate Diploma in Legal Practice issued by the School shall, upon
the Clearance of the Chief Justice, qualify and entitle the holder to practice as an advocate of
the High Court and Courts subordinate thereto or employment in public services.

v) ADMISSION AND ENROLLMENT CEREMONY.

The last procedure is Admission and Enrollment Ceremony. The cleared petitioner finally is going
to be admitted and enrolled in the roll of advocates. This stage is accompanied by the ceremony and
payment of fees as member of Tanganyika Law Society.

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:

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
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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.

Differences that exist between both procedures as follows:-

1) Before 2007 procedures for admission to the bar involved internship programme. The internship
was undertaken under the superintendence of the attorney general chamber but assigned specifically
in government departments. Whereas after 2007 procedures for admission incorporate the programme
under the law school studies for legal practice hence internship it is not independent procedure as it
was before.

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 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,
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its rules and regulations and the Law School of Tanzania Act and its rules and by laws made there
under.

PROFESSIONAL CONDUCT AND ETHICS

The legal frame work that governs professional conduct, ethics and etiquette of practise of law in
Tanzania mainland is mainly contained in the following legislation;-
1. The Advocates Act Chapter 341
2. The Advocates (PROFESSIONAL Conduct And Etiquette) Regulations, 2018
3. The Advocates (DISCIPLINARY And Other Proceedings) Rules
4. The Advocates (Remuneration and Taxation of Costs) Rules.
5. The Notaries Public and Commissioners For Oaths Act Chapter 12

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.

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
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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.

ADVERTISING AND ETHICS OF SELF PROMOTION.

The Advocate Act and Rules prohibits any kind of making one's business known to the public or such
other means referred to advertising or self promotion by an advocate. An advocate may not directly
or indirectly invite business in a way that amount to advertisement or touting. An advocate is
considered to be advertising if he lets his photograph be taken for publication in the newspapers while
wearing his gown.
As provided under The Advocates Act Cap 341
Section 47.Any person who, on behalf of any advocate, or for his own account, acts as a
tout shall be liable to a fine not exceeding one thousand shillings and to imprisonment for a
term not exceeding six months.

RESTRICTIONS AGAINST NON-ADVOCATE

The restrictions includes unadmitted persons those subject to suspension and striking-off as well as
body corporates. The restrictions includes the rules against appearing in Court, pretending to be an
advocate and preparing legal documents.
As provided under The Advocates Act Cap 341
Section 41.(1) No unqualified person shall act as an advocate, or agent for suitors or, as
such, issue out any summons or other process, or commence, carry on or defend any action,
suit or other proceeding in the name of any other person or in his own name, in any court of
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civil or criminal jurisdiction, or act as an advocate in any cause or matter, civil or criminal.

As provided under The Advocates Act Cap 341

Section 41. Any unqualified person who wilfully pretends to be, or takes or uses any name,
title, addition or description, or uses any title which corresponds to the title of a legal
practitioner in any Commonwealth country, implying that he is qualified to acts as an
advocate, shall be liable on conviction to a fine not exceeding one million shillings or twelve
months imprisonment or both.

As provided under THE ADVOCATES ACT CAP 341

Section 41.(1) Any unqualified person who, unless he proves that the act was not done for, or
in expectation of, any fee, gain or reward, either directly or indirectly, draws or prepares any
instrument–
(a) relating to movable or immovable property or any legal proceeding;
(b) for or in relation to the formation of any limited liability company whether private or
public;
(c) for or in relation to the making of a deed of partnership or the dissolution of apartnership,
shall be liable on conviction to a fine not exceeding one million shillings or twelve months
imprisonment or both and shall be incapable of maintaining any action for any costs in respect
of the drawing or preparation of such instrument or any matter connected therewith.

ETHICS OF COSTS AND REMUNERATION

The law provides for taxation of fees and costs, whereby the Court can determine the appropriate for
any work done by an advocate. But these procedures are rarely used, only in cases where an advocate
has won a case seeks for payment of fees from the losing party.
An advocate may agree with client on the fees payable on both contentious and non-contentious
matter.

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
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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.

ETHICS DILEMMAS OF ADVOCACY

1. Rules against advertisement and contingency fees ignored – Most of the advocates
interviewed, support the rule against advertisement and contingency fees. But most of them
do not agree with the rules on cost and remuneration.

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.

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
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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

1) THE HIGHER JUDICIARY

Chief Justice and all the judges of the High Court have powers of discipline over advocates.
As provided under The Advocates Act Cap 341
Section 22.(1) Nothing in this Act contained shall supersede, or interfere with the powers
vested in the Chief Justice or any of the Judges of the High Court to deal with misconduct or
offences by advocates.

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
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) ADVOCATE COMMITTEE – This is the main disciplinary authority for advocates, it is

established under Advocate Act Cap 341.
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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.

Powers of the Advocate Committee

1. The Committee has power to hear and determine any application by any person to remove
the name of any Advocate from the Roll or any allegations of misconduct against any
Advocate.
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;
(b) any application by any person to remove the name of any advocate from the Roll; or
(c) any allegation of misconduct made against any advocate by any person.

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
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
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this Act may, within thirty days of such decision or order, appeal to the High Court against
such decision or order.

Procedure for lodging Complaints with Advocate Committee

The lodging of complaints with the Advocate Committee is covered by The Advocates
(DISCIPLINARY and Other Proceedings) Rules of 2018.

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.

As provided under The Advocates Act Cap 341

Section 12. The Attorney-General may, instead of or in addition to summoning before the
Committee any person who makes allegations of misconduct against any advocate, require
that person to support such allegations by an affidavit setting out the facts on which he
relies as proof of misconduct.

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.

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
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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.

SANCTIONS AGAINST MISCONDUCT

Upon prove the allegations of misconduct, the Committee may choose among several options;-
1. It has power to order that name of the advocate be struck off the Roll.
2. It has power to order that, advocate be suspended for specific period of time.
3. It has power to warn him.
4. It has power to fine him.
5. It has power to order him pay costs.
6. It has power to make any order it may deem fit under the circumstances.
 Professional Practice and Ethics
By Solicitor Katura
As provided under The Advocates Act Cap 341
Section 13.(4) Upon the conclusion of a hearing subsection (3) the Committee may, if
it is satisfied of the truth of the allegations upon which an application under paragraph
(b) of subsection (1) is founded or of any allegation of misconduct made against the
advocate–
(a) direct that the name of the advocate be removed from the Roll;
(b) admonish the advocate; or
(c) suspend the advocate from practising for such period as the Committee may direct.

SUSPENSION AND STRIKING OFF

An advocate who has been found guilty for professional misconduct may be ordered to suspended
from practice for a certain period of time. He may also be ordered his name be removed from the
Roll, his practising certificate may be canceled, he thus loses all powers, rights and privilege he
enjoyed as an advocate and become unqualified person.
As provided under The Advocates Act Cap 341
Section 26 Where under any provision of this Act the name of an advocate has been removed
from the Roll or an advocate has been suspended from practice, his practising certificate (if
any) shall be deemed forthwith to have been cancelled, or, in the case of suspension for a
period less than the unexpired period to which his practising certificate relates, to have been
suspended for such lesser period.

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
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
 Professional Practice and Ethics
By Solicitor Katura
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;

RE-ADMISSION AND EXPIRY OF SUSPENSION

The pronouncement of guilty verdict against an advocate may be signal of the end of person's
professional life as an advocate but it is not necessarily be so. A suspension is temporary in nature
but even a striking-off is not final. An advocate may be returned to the after serving his sentence for
sometimes. A person who has been suspended or barred from practice may apply for the order to
varied. So that he can be returned to the Roll or have his term of suspension be reduced.
As provided under THE ADVOCATES ACT CAP 341
Section 28. Subject to the provisions of subsection (2), any person who, in accordance with
the provisions of this Act or otherwise by the High Court, has been suspended from practising
during a specified time or whose name has been removed from the Roll, may apply to the High
Court for an order, in the former case, to set aside the order or to reduce the period of
suspension and, in the latter case, to set aside the order or for re-admission.

PROCEDURES FOR RESTORATION

When the term of suspension expires or if he is re-admitted, an advocate must follow a certain
procedure before his practising certificate can be returned to or before he can be restored to the Roll.
Such as;-
1. He must give a six weeks notice to the Registrar of the High Court of his intention to apply
for a practising certificate.
 Professional Practice and Ethics
By Solicitor Katura
2. The Chief Justice also has powers to refuse to renew an advocate practising certificate upon
certain grounds.
As provided under THE ADVOCATES ACT CAP 341
Section 36.(1)In any of the following cases, that is to say, where an advocate–
(c) having been suspended from practice or had his name removed from the Roll, first
applies for a practising certificate after the expiration of his suspension or after his
re-admission to the Roll, as the case may be, he shall, unless the Chief Justice
otherwise orders, give to the Registrar, at least six weeks before the application is
made, notice of his intention to make the application, and the Chief Justice in his
discretion may refuse the application.

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
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:
 Professional Practice and Ethics
By Solicitor Katura
THE LEGAL PROFESSION IN ZANZIBAR

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

CATEGORIES OF LEGAL PROFESSIONALS IN ZANZIBAR.

Zanzibar has three ways through which a person may be admitted as legal professional;-
1. Admitted the advocate of the High Court of Zanzibar
2. Admitted as advocate for particular case only (Special advocates)
3. Admitted as lower cadre of legal practitioner known as Vakil.

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;-
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.

2) Advocate for particular case only (Special Advocates) – A practitioner may be

admitted for the purposes of a particular case if such Practitioner;-
1. Possesses one of the required qualifications provided under rule 2(b) of G.N.No.239 of 1946.
 Professional Practice and Ethics
By Solicitor Katura
2. Comes to Zanzibar for the purposes of appearing in such case. As provided under rule 4 of
LEGAL PRACTITIONERS RULES.
3. Proves that he has been instructed by a party to a certain case to take the conduct of the case
on that party's behalf.
4. The conditions on residence do not apply to special admission, all he has to do is to prove that
he is a legal practitioner in one the Countries mentioned (Tanzania, Kenya, Uganda and
Nyasa-Land – Malawi).

2) Para-professionals; Vakils - A person to whom a particular aspect of a legal professional

task is delegated to him but who is not licensed to practise as a fully qualified Legal Practitioner.
The Chief justice in his discretion admit a person with good character and sufficient ability to practice
before all or any of the Courts. Such person shall be known as Vakil and shall on signing the Roll
provided. As provided under rule 6 of LEGAL PRACTITIONERS RULES.
A person may be admitted to practise as Vakil, if he observes the following;-
1. If he proves he is of a good character.
2. If he proves that he possesses sufficient ability.
N.B;- There is no requirement for a Vakil to attach professional qualifications and neither a Vakil
should have been a resident of Zanzibar before he can be admitted.

THE PROCEDURE FOR BEING ADMITTED AS AN ADVOCATE

IN ZANZIBAR
The procedure for being admitted as an advocate in Zanzibar is simpler compared to that of Tanzania
Mainland. Once a person is professionally qualified;-
1. He has to make an application by way of petition and submit it to the Chief Justice,
accompanied by two certificate of character. Similar to one prescribed in Tanzania Mainland.
2. He has to prove to the Chief Justice that he has accommodations, stationaries, furnitures and
other office essential materials. If the Chief Justice is satisfied that the petitioner has fulfilled
all important needs, he will simply inform him and require him to pay prescribed fee.
3. Thereafter upon signing the Roll of advocates, then be duly admitted as an advocate.

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
 Professional Practice and Ethics
By Solicitor Katura
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 ASPECT OF ADVOCATES AS NOTARIES PUBLIC AND

COMMISSIONER FOR OATHS IN ZANZIBAR.
The role of Zanzibar advocates is essential the same as that of Tanzania Mainland Advocates. They
can appear in all Courts subordinate to the High Court and in most extra judicial tribunal except
primary Courts.

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 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.
 Professional Practice and Ethics
By Solicitor Katura
RESTRICTIONS ON UNQUALIFIED PERSONS
The laws in Zanzibar (Zanzibar's Legal Practitioners Decree) does not expressly disallow an advocate
who does not have a practising certificate from practising. As provided under Section 3 of LEGAL
PRACTITIONERS DECREE. But the Legal Practitioners Rules may be interpreted to include such
prohibition. As provided under rule 8 of LEGAL PRACTITIONERS RULES.

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".

COSTS AND REMUNERATIONS

Zanzibar laws established the Committee with powers to make rules in respect of Remunerations of
advocates. The Committee differs from the Remuneration Committee of Mainland. In the sense that
its membership is provided by the statute to be composed of the Chief Justice, the Administrator-
General, and an advocate to be nominated by the Chief Justice, thus two out of three are Ex-officio
members and only one is nominated by the head of Judiciary.
The Mainland's five members consist of advocates nominated by fellow advocates through their
professional Organisation (The Tanganyika Law Society).
As provided under THE ADVOCATES ACT CAP 341
Section 49.(1) For the purposes of this Part there shall be a Committee to be known as the
Remuneration Committee which shall consist of five advocates elected by the Law Society of
whom three shall form a quorum.

The other difference is that, Zanzibar Committee of Remuneration can only regulate remuneration in
 Professional Practice and Ethics
By Solicitor Katura
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.

THE DISCIPLINARY PROCESS IN ZANZIBAR

A) THE DISCIPLINARY PROCEDURES OF ADVOCATES

The only disciplinary authority for the private practitioners in Zanzibar is Higher Judiciary. As there
is no lawyers' association of any kind in Zanzibar, neither is there any legal provisions for an advocate
committee.

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.

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.
 Professional Practice and Ethics
By Solicitor Katura

B) THE DISCIPLINARY PROCEDURES OF VAKILS.

The disciplinary procedure in respect of Vakils is not provided by the Law. However it is reasonable
to assume that since they can only practice at the pleasure of the Chief Justice, he is empowered to
discipline them by suspension or striking-off at any time he feels like, without the need for following
any kind of procedure. As provided under rule 6 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.
By SOLICITOR KATURA.

ALLAH IS EVER ALL KNOWER, ALL WISE.