In November 2014, Dora Byamukama, Uganda’s representative to the East African Legislative Assembly (EALA), tabled a bill, The East Africa Cross Border Legal Practice Bill, 2014, before the regional parliament seeking to allow for cross-border legal practice in East Africa.
The Bill sought, or rather, seeks to operationalise Article 76 of the Treaty providing for the free movement of labour, goods, services, capital and the rights to establishment. Cross border legal practice is hinged on Treaty provisions and in particular, Article 126, which deals with co-operation in legal and judicial affairs in two main areas; harmonisation of legal training and certification and standardisation of the judgments of courts in the East African Community.
The crux of the Bill is that lawyers in the five partner states would be able to offer their services to clients across the border in the spirit of the free movement of goods and services. It also takes into cognisance of the mutual recognition of the academic and professional qualifications. The recent extended jurisdiction of the East African Court of justice to include areas of trade requires lawyers to practice across borders. It is, simply, what we need; by creating a forum for legal professionals in the region to interact, seek opportunities and to discuss issues impacting their professions in the region, it is a law to ease what is already in practice.
However, some national law societies held, or rather, hold unfounded reservations on the implications of enactment of the Bill – the underlying argument seems to be that it would increase competition for legal services, negatively interfere with their turf and swamp certain jurisdictions with lawyers from other jurisdictions.
The Uganda Law Society emerged to be the one of those harbouring reservations about the draft law on the basis that it is in conflict with what the national law societies of the region already agreed on with the East Africa Law Society.
The then President of the Uganda Law Society, Ruth Ssebatindira, said, on April 11, 2015, that they had agreed with the regional lawyer’s body to proceed based on Mutual Recognition Agreements, which Ugandan lawyers preferred. The Mutual Recognition Agreements, she said, would be signed with respective law societies of the different countries as opposed to cross border legal practice.
As a matter of course, and without a doubt, the Bill presents both challenges and opportunities, and both are vast.
In East Africa, law is essentially domestic and the knowledge of local practices, language and nuances will always play a paramount role in the choice of counsel and the success of any legal advisor or consultant who chooses to cross borders. There is also a difference in legal systems, that is, the civil system (in Rwanda and Burundi) vis-a-vis the common law systems (in Uganda, and Kenya. The difference in the language of instruction is another impediment. Burundi and Rwanda are from a Francophone background (Rwanda recognises Kinyarwanda nationally and uses it in correspondences too) whereas Uganda and Kenya are from an Anglophone background. Tanzania is comfortable with Swahili. Not to be forgotten is the inhibition and resistance towards change.
While a large proportion of the demand for, for example, accounting and auditing services seems based on mandatory legal requirements such as financial reporting and taxation, usage of legal services is only considered necessary and often useful to remedy relations with clients and improve the quality of a firms output.
The informality and status of business regulation in not just East Africa, but Africa as a whole, demands for professional services including but not limited to those legal. The enactment of a law, as moved by Dora Byamukama, would be a welcome step in the right direction in as far as aligning the harmonisation and regulation of formal methods of relating with one another in the region.
Needs for legal services in developing countries like those that make up the East African Community are as at least as pressing as in developed economies. Unfortunately, their demand remains unsatisfied given skills shortages and skills mismatches. There are inadequate quantitative or qualitative regulations applied to both domestic or foreign professionals and firms. Cross border practice would come handy in as far as setting standards by which those with the necessary skills can easily provide their services to those in need of them especially where the local professionals are found wanting.
According to World Bank findings, there is generally demand for the whole spectrum of legal services – from advice on domestic and international law, title transferring, and court representation, to representation before administrative agencies, tax advice, insolvency practice, business advisory services, and on patent law.
In Rwanda, because of the newness of the economy and the catch-up still to be done, patent law, insolvency practice, and advice on international law are not demanded – yet. Court representation, advice on domestic law and title transferring generate most of the revenue in all countries. The banking sector seems to be the most important revenue provider for Uganda legal firms while non-financial institutions seems to be the most important clients for Kenyan and Tanzanian providers of legal services.
The sectoral distribution of clients is, therefore, limited. A well regulated cross-border practice would be more than helpful in as far as sharing of knowledge on how to diversify and broaden the market or clientele, which is made up by the opportunity that is a regional population of at least 120 million East Africans.
The solutions, while moving forward.
While movement of goods and services across borders appears to be seamless, it is still harder for professional services even when free movement should be for both goods and services.
Ingenious lawyers have already devised ways of practicing across borders through partnerships between exiting firms in different countries. Others have opted for short term permits which are at times cumbersome and not reliable.
As professionals, lawyers, and any other professionals – engineers, pharmacists, doctors, engineers, accountants and more, their cardinal responsibility is to provide solutions. These solutions include; engaging professional associations, like the national law societies, to understand some of the barriers that stop them from engaging in cross border service provision; agreeing on and harmonising minimum standards for legal training; developing a code of ethics and professional conduct, one which draws its mandate from the Mutual Recognition Agreements. The code would help to benchmark and harmonise the standards of professional practice and ethics expected of the legal profession in the East African Community, to inform and guide lawyers registered to practice in the region. Also, it would be incumbent upon the professional’s associations to popularise the same laws. These are some of the critical steps required to facilitate regional integration.
- Permission of entry of foreign professionals and professional firms.
An organised and well regulated cross border practice would help do away with the existing challenges that are faced by foreign professionals. There are, for example, explicit trade barriers. The most restrictive measures for all modes of services supply are applied in legal services and the legal sector remains largely closed to foreign participation. Nationality requirements which typically ban foreign entry are imposed in several countries on providers of legal services. The range of business activities and procurement participation allowed for foreign providers of professional services is narrower than for domestic providers in almost all the countries. All these measures reduce the number of service providers and thus the availability of services provided and consumer choice.
- Disproportionate entry requirements.
A harmonisation of the minimum standards of legal training would help solve the challenges pertaining to cumulative and disproportionate qualitative entry restrictions, the most frequent being the monopoly (in Uganda) and competition (in Kenya) of the professional associations over the higher education institution that provides the post graduate diploma, combined with exclusive rights in legal services.
- Rigid control of movement of skilled workers
An enactment of the relevant law will certainly help do away with some of the rigidities pertaining to movement of professionals. East African countries rigidly control the movement of skilled workers into and out of their borders, in many cases applying stringent regulations on workers from developed countries as well as on those from within East Africa. There is also little harmonisation of migration policies and the issuing of student study passes and the work permits across the East African region.
- Other restrictive regulatory measures.
Gradually, we will be able to provide solutions to inappropriate conduct regulation, with measures like fixed fees, advertising restrictions, and restrictions on forms of practice and multidisciplinary activities being worth note.
Other restrictive regulatory measures include unavailability or limited applicability of competition law to professional services, inadequate standards that prevent the emergence of middle-level professionals (for example, paralegals), and inefficiencies related to duplication of education and training determined by non-recognition or partial recognition of professional credentials and licenses.
In December 2011, and under their unifying or common banner, of the East African Institute of Architects, architects from across East Africa, signed an agreement, a Mutual Recognition Agreement, under the Common Market Protocol in order to give themselves a free pass for cross border practice in East Africa. Architects will now not need a permit to operate within Kenya, Uganda, Rwanda, and Burundi. At about the same time they signed the agreement, they were, and prematurely so, synchronising the education systems to harmonise the architectural training curricula in the region. The positive effect being that it helps standardise their practice.
The benefits of this action, which included the reviving of the East Africa Institute of Architects, was to create, among architects, ties based on friendship, understanding and mutual gain to enable them share ideas and experience, and broaden their perspective. Instead of being limited to one country, there is a wide geographical area and population demographic to ply one’s trade. Also, the architects benefit from the transfer of knowledge as they gradually benefit from the expertise of others who may be better than them. In addition, their co-operation promotes regional professionalism and work ethics.
Accountants have done the same as well. Lawyers can too.
Strict national policies, combined with the lack of regional coordination among East African countries discourage foreign investment and so hinder economic growth and development. Trade liberalisation and regional integration can help reduce the opportunity for private interest regulation, enhance competition and deal with labour mobility issues that are crucial in professional services. A case in point is the regulation of professional qualifications and licences at the East African Community level.
Our jurisdictional boundaries should not represent any barriers to successful and enriching professions. Progression towards integration will provide much more services, benefits, and opportunities that fulfil the expectations and rights of both members and clients.