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Recalling the international norms and standards on the role of lawyers
Zimbabwe Lawyers for Human Rights (ZLHR)
September 05, 2013

Zimbabwe Lawyers for Human Rights (ZLHR) wishes to restate the critical role of lawyers in advancing the Rule of Law. As previously set out in recent petitions issued to commemorate International Human Rights Day, on 10 December 2009 and 6 December 2012 respectively, lawyers in their capacity as officers of the court are indispensable to proper and effective justice delivery.

ZLHR has observed with great concern that lawyers continue to be an endangered species in Zimbabwe. We are cognizant of the fact that the respect, promotion and protection of the rights of legal practitioners, both in the private sector and those within the public service in Zimbabwe, are prerequisites to safeguard the independence of the legal profession as well as the judiciary, and in turn to enable the efficient and effective administration of justice. Where a lawyer is targeted without just cause and/or due process, this has a chilling effect on other lawyers who will censor themselves and not deliver justice for their clients and the greater national cause.

Over the years, the protection of lawyers in the execution of their professional duties has been expanded nationally, regionally and internationally.

The Constitution of Zimbabwe in sections 70(1)(d), 69(4), 50(b)(i) and (ii) of the Declaration of Rights, guarantees the rights to legal representation of one’s choice in criminal and civil matters as part of ensuring the fundamental right to protection of the law.

The African Charter on Human and Peoples’ Rights (to which Zimbabwe is a State Party), and the African Union Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa both reaffirm these rights. These Principles and Guidelines further stipulate that every accused person has the right to an effective defence and representation, and that the independence of lawyers shall be guaranteed.

In particular, the state is obliged to ensure that lawyers:

• are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;
• are able to travel and to consult with their clients freely both within their own country and abroad; and
• shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Lawyers also “shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a judicial body or other legal or administrative authority”, and “shall not be identified with their clients or their clients’ cause as a result of discharging their functions”. Where the security of lawyers is threatened as a result of discharging their functions, the authorities shall adequately safeguard them.

Similar safeguards have been laid out in various United Nations (UN) instruments binding Zimbabwe, and are expanded particularly in the UN Basic Principles on the Role of Lawyers, of which the State is well aware as a member of the UN.

In this light, ZLHR recommends the following action by stakeholders:

To promote mutual understanding and respect within the legal profession, and to enhance justice delivery, there is a need to increase substantive engagement between lawyers in the private and public sectors and members of the judiciary at all levels as, without a common understanding that a strong, independent and fearless profession is a pre-requisite for an independent and effective judiciary, public confidence in both sectors - and the administration of justice - comes increasingly under threat and is eroded.

Both the Executive and Parliament must prioritise, as part of the national legislative agenda, the expeditious and proactive domestication of all ratified treaties, statutes and instruments guaranteeing the independence of the legal profession, and continue to monitor effective implementation thereafter.

Steps must also be taken to ensure that adequate legal provisions exist or are included in national legislation to protect the independence of legal practitioners and allow them to carry out their professional duties without hindrance. Further, such provisions must be implemented and respected by all state and non-state actors.

The Prosecutor-General and/or other appropriate authorities must, without fear or favour, take swift and effective measures to ensure the prosecution or disciplining (in the case of authorities without powers of prosecution) of all offenders who carry out unwarranted attacks on members of the legal profession, so as to discourage this practice and the growing culture of impunity.

The Law Society of Zimbabwe must not only continue to monitor and ensure the fair and impartial implementation of proper conduct by the legal profession, but also more critically ensure that it protects its members and ensures safeguards are in place and are respected to maintain a strong and independent legal profession.

To create an enabling environment for the legal profession as well as the other stakeholders in justice delivery, the Judicial Service Commission must monitor and ensure compliance with the values, standards and practices set out in the Judicial Service (Code of Ethics) Regulations of 2012. This will maintain public confidence in an independent and effective judiciary that adheres to the highest standards of integrity and delivers justice to all, without fear or favour.

ZLHR finally reiterates that, whilst members of the legal profession are not above the law, any action taken against them must respect and safeguard their constitutional rights and regional norms and standards, and must only be taken in accordance with the principles of natural justice and after due process has been afforded them. Where this is not done, justice delivery will be the ultimate loser and confidence in the authorities - not only by the legal profession, but also by society at large - will be adversely affected.

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