By Advocate Monaheng S Rasekoai
A WEEK ago, his Lordship Acting Chief Justice’s speech in the official opening of the High Court made a humorous but somewhat pernicious remark to the effect that “some” lawyers have established offices from the boots of their cars.
The Acting Chief Justice further made a poignant remark to the effect that lawyers have an obligation to serve the needs of the poor folk and not to serve the exclusive needs of the privileged class. He went on to suggest that this is the real reason why government funds the education of lawyers for their university education.
I shall strive to pick the gauntlet from the acting Chief Justice’s remarks and incidentally attempt to react to the proposed suggestion that the standards of the legal profession in Lesotho are declining.
The exclusive reference to lawyers in my present thesis shall not be inclusive of law graduates who have never set foot in a court of law defending a poverty-stricken man accused of killing another, or reconciling the conflicting interests of ordinary poor people in a local court.
It is not exclusive to a law graduate who has spent the better part of his post-university days behind a mahogany desk dressed in an expensive silk suit advising a giant corporate company and preparing for a sophisticated board meeting.
Reference to “lawyers” does not include a law graduate whose best skills and traits have confined him or her to the wonderful environment of academic seclusion where he or she can best express views through academic journals and lectures.
Neither is the present thesis going to be inclusive of lawyers who form part of the public bar or government bureaucracy.
This exclusionary definition of “lawyer’ is deliberate and the reasons behind it are motivated by the flawed perception of society which magnifyies the flaws of only “legal practitioners” in private practise to the exclusion of all others who are equally faced with professional challenges and/ or flaws.
The narrow lens may have sound reasons but they need not be discussed at this stage.
It needs to be remembered that with a population of about two million people, Lesotho has an approximate total of about three hundred legal practitioners registered with the Law Society of Lesotho as private practitioners.
Only a third of this population (about a hundred) is in active practice and 80 percent of this group is based in the capital city. The first glaring challenge lies with the notion of decentralisation of legal services in the distribution of legal services within the 10 districts of the Kingdom of Lesotho.
Lawyers themselves are part of the developing economy with socio-economic needs prompting them to be based at the central region where they may make a living through legal services.
In Lesotho, the demographic distribution of lawyers puts them at a great distance – both geographic and social – from impoverished, excluded rural people. Even where lawyers are physically accessible, the costs of legal services provided by those lawyers who do cater to poorer people may also create barriers to the development of legal resources for and within groups.
These lawyers usually offer a limited range of skills to their clients. Their talents are usually expended on litigation, or counselling individual clients on problems of a typical legal sort (such as the preparation of contracts, wills, sub-leases or similar documents).
Since these clients only pay modest fees, the lawyer seeks to develop a high volume practice entailing use of these familiar skills. Clients with difficult problems, requiring significant investments of time but offering meager rewards are less desired, if desired at all.
Indeed, many of the problems of rural groups probably may be quite novel to most lawyers, and they may call for innovative thinking in order to develop a persuasive theory about the proper interpretation and application of unfamiliar statutes and rules which will fit the particular needs of a group clientele – for example: How to force a Minister of Labour, either through litigation or through tactful negotiation skills of a seasoned legal practitioner, to make provision for more favourable wages for labourers in the garment factories in Lesotho.
If a lawyer is alien to the dynamic challenges of trade unions in this country or, even worse, if distanced from the trials and tribulations of the proletariat statistics, the said lawyer may be more reluctant to become involved with problems which are remote to his experience or interest and routine.
Further, a rural group may be a less attractive “client” if the lawyer is called upon to work within the group as part of its cadres. By immersing oneself as a lawyer to the concerns of the group and embracing its claims the said lawyer may risk being alienated by powerful government organs and its administrators, even wealthier clients may also be reluctant and, even worse, the said lawyer risks jeopardising social connections and the status within the community may dwindle as well.
It becomes a painful reality to notice under the circumstances that the role of lawyers in Lesotho has been modelled along lines developed by advanced and developed countries.
The training of legal practitioners in Lesotho is heavily oriented towards provision of the kind of knowledge and skills which, traditionally in Europe, or even better in our South African neighbours’ context, have been the particular province of solicitors and advocates, towards transactions and disputes which customarily occupy lawyers serving the interests and needs of the privileged class in society.
It is a painful reality to note that most of the problems of the poor do not fit neatly into these traditional categories of professional knowledge and cannot readily be converted into “legal problems”. There have been attempts to arrest this challenge through the restorative justice programme but it is worth mentioning that it would be wrong for any person to stage a polemical criticism to the effect that the standards of the legal profession are lowering.
If ever the proposition is that they are lowering, one would pose a rhetoric question: What is the yardstick for standards in a polarised professional environment like that of Lesotho? We have engineers in this country who construct roads which overflow with water and are often riddled with gaping pot holes. Is that reflective of the wholesome incompetence of engineers in Lesotho?
There are isolated examples of legal practitioners who engage in misconduct and who are taken to task and reproached for their insidious activities but they are not reflective of the entire legal profession. It would clearly be wrong for any person, be they a member of the Law Society or a layperson, to typecast lawyers as a bunch of incompetent and unscrupulous nest of professionals.
It clearly does away with the level of commitment and devotion displayed by some seasoned legal practitioners that Lesotho has produced over the years. Young law students must be made aware that indeed Lesotho has a cream of legal intelligentsia beginning with the Dean of the Faculty of Law at the National University of Lesotho and many other seasoned legal practitioners who have committed themselves to the vision of legal practise and have made a meaningful contribution to the development of the law in this country.
What is actually happening is that there is a wave of a transitional process whereupon poor people are beginning to have access to legal resources and expertise. A majority of novice law graduates have direct access to the ordinary members of the public and they render services at a conscionable cost which was traditionally reserved for the privileged class and this clearly compromises the interests of other legal practitioners who were traditionally dominating the landscape and this is not to mention the interests of the privileged class in Lesotho’s society.
Be it, the ruling elite or the wealthy and affluent members of Lesotho’s society. This wave is not a new phenomenon, it will be clearly noted that between the 1970’s and ‘90s there was a similar wave in Latin America whereupon there was a renewal of interest throughout the world in the “legal needs” of the poor and in developing ways to provide more equality of access to official, adjudicative institutions.
The legal profession retained its status and prestige over the years when there were “few” lawyers who were dominating the landscape with their expertise and social clout. The yardstick at the material time was easily discernible because the landscape was manageable.
The legal profession in Lesotho barely has 30 years of autonomy and for the past 30 years the membership has tripled if not quadrupled. The institutions which were put in place when the Law Society was established did not contemplate the wave of the macro-economic phenomenon that is currently prevailing.
Admittedly, there are glaring institutional challenges and a dire need to have vocational training for all legal practitioners. Indeed, one is forced to agree with His Lordship Acting Chief Justice’s proposition when he says: “There is an urgent need to upgrade the capacity of the Law Society through adequate funding in order to introduce an administrative system that will also be able to cope with the supervision in modern times of the proper conduct of legal practices in Lesotho, to rein in the activities of a whole legion of ‘pseudo practitioners’ who conduct their illegal trade with impunity and to the detriment of the public, and to introduce a compulsory continuing legal education programme to keep practitioners constantly informed to the latest development and practice of the law.”
This phenomenon is not exemplary of declining standards in the profession but a macro-economic phenomenon which was clearly inevitable in view of the economic landscape of Lesotho and the sudden wave of globalisation and the incidental dynamics of international trade.
The economy of Lesotho is evidently growing, there are large-scale corporations which are flooding the country and looking for prospects of trade and, for this wave of economic development to take place, the entire institutional framework of the administration of justice must be efficient.
Legal practitioners in private practice cannot shoulder the entire blame for the challenges facing the administration of justice in this country. Judges, magistrates and local court presidents must as a matter of necessity deliver judgments in time inclusive of prosecutors and the entire membership of the public bar who must equally display professionalism and develop a standard of competence.
The law enforcement agencies must also curb the growing trend of perpetrating torture on subjects in order to efficiently mould the wheel of justice amongst many other challenges that we are facing.
It would be dangerous if the wavering structures of administration of justice are attributed solely to legal practitioners. If anything, we all bear the brunt of the declining standards and we must equally carry the obligation of making an effort to rectify some of those identifiable challenges like any other country, instead of staging polemical criticisms.
Advocate Monaheng S Rasekoai writes in his personal capacity