Is cross-border legal practice really possible?

Uganda’s represesantive to the East African Legislative Assembly (EALA), Dora Byamukama, in November, tabled a Bill before the regional parliament seeking to allow for cross-border legal practice in East Africa. However, the Bill has set off a regional debate among lawyers regarding the feasibility of the move. Byamukama expected the Bill to be debated at last month’s plenary session in Burundi but it wasn’t possible after a successful motion to adjourn by the acting Chair of the Council of Ministers, Abdullah Saadalla. Now the fate of Bill will be partly decided next month when a fresh EALA plenary session takes place. The crux of the Bill is that lawyers in the five partner states would be able to offer their services to clients across the borders in the spirit of the free movement of goods and services. But it’s not as easy as it sounds. For instance, although the regional assembly’s committee on legal rules and privileges conducted consultations with regional stakeholders on the matter and presented its report during the plenary session in Burundi, more time was requested by the Council of Ministers to consult more people. Some of the stakeholders consulted by the EALA committee included representatives of the law societies/Bar associations, ministries of justice and constitutional affairs, law schools and faculties; and civil society organisations. In principle, the committee’s report presented by MP Taslima Twaha said the East African Law Society and National Law Societies in the region acknowledged the need to have the Bill enacted to facilitate provision of cross border legal services. However, the report also said some national law societies hold unfounded reservations on the implications of enactment of the Bill – the underlying argument seemed to be that it would increase competition for legal services, interfere with their turf and swamp certain jurisdictions with lawyers from other jurisdictions. Ugandan opposition The Uganda Law Society has emerged to be one of those harbouring reservations about the draft law on the basis that it’s in conflict with what the national law societies of the region already agreed on with the East African Law Society. Ruth Ssebatindira, the president of Uganda Law Society, said that they agreed with the regional lawyers’ body to proceed based on mutual recognition agreements that would be signed with respective law societies of the different countries. “The Bill is in conflict with what we want to do as the five Bar associations of East Africa,” said Ssebatindira, adding that the regional assembly has never consulted them about the proposed law. Ssebatindira said for the arrangement to work, it would require the partner states to first agree on what to set as the minimum standards for legal training. Currently, this is not harmonised. “Therefore, the bill is premature,” Ssebatindira said. Tabled as a private members Bill, Byamukama’s proposal was also watered down by a fellow lawyer and also Ugandan representative to EALA, Fred Mukasa Mbidde, who argued that it’s not wise to pass a single law for just legal services. “Instead of a single profession, we may now come up with a cross-border trade in professional services Bill, which would take care of all the professions that we have in the region,” Mbidde said. It’s the view that Minister for East African Affairs, Amb. Valentine Rugwabiza, seemed to favour when she revealed, in a recent interview, that she plans to engage professional associations to understand some of the barriers that stop them from engaging in cross-border service. The minister observed that while movement of goods across borders appears to be seamless, it seems harder for professional services; “free movement should be for both goods and services.” Rwandan lawyers Athanase Rutabingwa, president of Rwanda Bar Association, said with or without the EALA cross-border Bill, the five Bar associations of the region are already making progress on the matter through their proposed Mutual Recognition Agreements (MRAs). “We are now directing our efforts to expedite the process of concluding the agreements that would allow members of the various bar associations to practice in any of the five countries,” he said. The plan among the regional law fraternity is to have the MRA’s concluded and in force before the end of this year but only two countries, Kenya and Rwanda seem to be showing the spirit to get things done. “What I can say is that we are determined to get done with this and even ready to proceed and implement the MRA’s with the countries that are ready,” he said. The lawyers regard the Bill as more of a political document and their own MRA’s as the ‘real deal’ with proper technical details regarding the modus operandi under cross-border legal practice. Exciting benefits All the Rwandan lawyers who talked to The New Times about the matter seemed excited about the potential benefits of cross-border legal practice, but they also had reservations, compelling a conclusion that the idea might be good but not plausible at the moment. Apollo Nkunda, a senior lawyer at Trust Law Chambers, said although the idea of cross-border legal practice in EAC is good, he doesn’t see it as a game changer in the profession. “Ultimately, law will always be domestic and the knowledge of local practices, language and nuances will always play a paramount role in the choice of counsel,” argued Nkunda. In other words, just because the borders are open, it would be hard for someone in Rwanda to prefer a Ugandan attorney over a Rwandan one to represent them in a criminal hearing, for instance. There’s also the issue of having different legal practice standards. Historically, Rwandan and Burundian law and practices drew inspiration from the civil law system, while the other countries’ practices were based on the common law system. “I see that as one of the big challenges that cross-border practice is likely to face. A good example is the language used in courts; we predominantly use our local language while Kenya and Uganda use English; this is quite a challenge. Our rules of procedure are also different from the two countries,” said Phiona Mutoni, another lawyer with Trust Law Chambers. Geoffrey Mwine, the managing partner of GMCC Chambers, agreed with his Trust Law Chamber counterparts. “There are many conditions to be fulfilled first. For instance, Rwandan lawyers must fulfill the required conditions in the respective countries such as having enrolled and completed legal practice post-graduate course from their respective law development centres,” he said. However, Safari Kizito, the managing partner of Bona Fide Law Chambers, held another view when he pointed out that the door for cross-border practice was long opened and it’s up to Rwandan lawyers to up their game and compete. “Some of us already have clients across the borders. So it’s possible, especially for us commercial lawyers,” said Kizito. Kizito, who’s fluent in both French and English, said lawyers are meant to deal with challenges. editorial@newtimes.co.rw

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Is cross-border legal practice really possible?