Kenya may be one of the largest foreign investors in Tanzania, but Kenyan companies cannot take along their legal representation – in contrast to Ugandan and Tanzanian companies. Albert Muriuki looks at the progress in harmonising legal practice in the EAC.
Kenya may be the largest economy in the East African Community (EAC) and provide the most intra-EAC foreign investment into its neighbour Tanzania, but so far, Kenyan firms cannot take the lawyers along when expanding across the border. To date, Kenyan lawyers are restricted to practice only in their country, whereas Kenyan laws have already been amended to open the country to lawyers from Uganda and Tanzania.
An additional complication in the integration of the EAC’s legal systems arises from the fact that 2007 newcomers Rwanda and Burundi have fundamentally different legal systems as the two were Belgian colonies and therefore follow the Francophone civil law system, while the three founding members Kenya, Uganda and Tanzania where all British colonies after 1945 and therefore follow the common law system.
Of course law and its practice reflect cultural characteristics, and mistrust towards the Kenyan lawyers, often perceived as pushy, has been a factor in the smaller EAC economies’ reluctance to admit Kenyan law professionals to practice in their territory. A brief look at history helps to understand this: In 1961, the first law faculty in East Africa had been set up in Dar es Salaam, Tanzania’s capital, followed by Uganda’s Makerere University in 1968. Kenya only established a law faculty in 1970. If, in the immediate post-colonial years, legal education had been a reasonably unified East African undertaking due to the general lack of capacities, the collapse of the first East African Community in 1977 created divergent paths, the effects of which are still noticeable today: While Tanzania chose a socialist economic system, Kenya pursued a capitalist economy. Uganda, in contrast, was beset by violent internal conflicts that translated into a general setback of the legal profession in the country. Kenya may have been the last of the three countries to set up a law faculty, but today, Kenyan lawyers compete fiercely - sometimes even illegally - for lucrative contracts. This contrasts sharply with the slower pace of business in Tanzania Tanzania: Slowing Down EAC Integration over Land Concerns?.
In the current situation therefore, any business located in Kenya that wants to expand into Uganda and Tanzania, must use law firms in the respective countries, or their corporate lawyers would have to partner with domestic law firms. However, a business with legal representation in either Tanzania or Uganda need not worry as their legal representatives are allowed to practice in Kenya. Under Kenyan law, any foreign advocate who has the approval of the Attorney General may practice as an advocate, for the purpose of any specified suit or matter in the Kenyan courts. However, such a foreigner must be a lawyer who is entitled to appear before the superior courts of a Commonwealth country.
In Uganda, the laws are a bit different, “Uganda has not yet made changes to allow non-Ugandan’s to be admitted to the Roll of Advocates. However, one can be admitted on an ad hoc basis on petition to a judge, though one would still be disadvantaged in terms of correspondence not being on an equal footing with local lawyers,” explains Phillip Aliker, a Ugandan barrister in England and Wales specialising in East African Community laws.
In Tanzania, reciprocal admission to the Roll of Advocates of EAC qualified lawyers is allowed, but it is not automatic i.e. pursuant to the MoU. One is still required to apply to a judge to practice, explains Aliker.
It is unlikely, however, that this uneven arrangement will lead to a flood of lawyers into Kenya. The former chairman of the Law Society of Kenya (LSK), Ahmednasir Abdullahi, cautions that it might be challenging for Tanzanian and Ugandan lawyers to practice in Kenya the number of lawyers in Kenya alone are more than the combined number of lawyers in Uganda and Tanzania. This, he says, is one of the reasons why even with the restrictions lifted, there are no Ugandan or Tanzanian law firms or lawyers in the country. “They rather pass on the work to their Kenyan counterparts,” he says. The immediate former president of the East Africa Law Society (EALS), Tom Ojienda, reckons that Kenyan lawyers, in contrast, would jump at the opportunity to practice in the two Anglophone EAC neighbours.
To date, there are no regional or international law firms that cover the entire EAC region, as is typical in industrialised countries. But individual law firms have begun to take initiatives to develop a cross-border presence for their clients: Africa Legal Network is an organisation of six leading law firms in Kenya, Uganda, Tanzania, Rwanda and Burundi. “We decided to create Africa Legal Network so that we could provide high quality and seamless, legal services to clients in the countries across the region. It is the only association of its kind in east and central Africa,” says Karim Anjarwalla, senior partner at Anjarwalla & Khanna Advocates in Kenya who were the proponents of Africa Legal Network. According to Karim, Africa Legal Network is set up in a way that it operates as one legal firm in the region. To date, the network, chaired by John Miles, includes Anjarwalla & Khanna from Kenya, MMAKS from Uganda, Ringo & Associates from Tanzania, Musa Dudhia & Company from Zambia, Kamanzi, Ntaganira & Associates from Rwanda, and A&JN Mabushi from Burundi.
While Africa Legal Network has taken steps to harmonise work for its clients’ benefits, other foreign lawyers interested in the region have used another route, poaching highly skilled lawyers from top Kenyan firms and setting them up to specifically be point men for their interests in the region. Kenya: Leading South African Law Firm Poaches Four Senior Kenyan Lawyers. Although he acknowledges that the Kenyan parliament’s move to remove barriers for its neighbors was positive, Ahmednasir has subdued expectations for seamless legal work in the EAC, arguing that full cross border practice might still be some way off and will only follow once full regional economic integration has been established.
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