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What does it say about the legal profession when someone without formal university training can practice as a lawyer?
The most obvious answer is the cynical one – that to become a lawyer one needs little more than good command of the language of the court (English), bundles of super confidence, knowledge of essential legal precepts as well as the location of courts, a black choir-like robe and a properly bleached collarette. A little practised but not too dramatic swagger might also help.
The wonderment and cynicism are backgrounded against the case of Limukani Moyo, a former Zimbabwean soldier whom law enforcement authorities say is a fake lawyer and have brought before a court where he may have lawyered in before. The accused is fighting the charges and is naturally seeking to punch holes in the state’s case. Nothing about a court case is open-and-shut and there may be some surprises farther down the road. The court will establish his guilt or innocence but what is worth pondering at this point is whether it is possible to practice law without an LLB and a practicing certificate. It is indeed possible to do so because of gatekeeping lapses that are deeply embedded within the system.
Court registries don’t verify whether papers filed with them are from properly credentialed law firms and lawyers. Thus, when lawyers appear in courts on behalf of their clients, judges and magistrates have no way of ascertaining whether they (lawyers) are genuine. At the beginning of a hearing, lawyers have to merely introduce themselves to the presiding officers and state whom they appear for. In order to avoid being found out, a really good Gaborone con artist with bright prospects in prosperity gospel ministry can sojourn in Gantsi and successfully pass himself off as a lawyer. It actually is possible for this non-lawyer to win case after case and become a legend in that part of the country. Moyo is alleged to have ran a fraudulent legal practice from November 2012 to June this year when he was found out. He is said to have represented 84 people at the High Court, Court of Appeal, Industrial Court and various magistrate courts.
However, some people don’t even pretend to be lawyers but are sufficiently knowledgeable about law to hold their own against experienced lawyers. In one respect, credit goes to the Botswana Prisons Service whose libraries are stocked with law reports that some prisoners take full advantage of. One lawyer recalls his encounter with an expatriate prisoner who was freely franchising out his knowledge of the Prisons Act to fellow prisoners, in the process helping free some of them.
Until the Customary Court Act was amended, participating in a trial at such court was free for all. It was under such arrangement that there emerged an untrained kgotla “lawyer” who became a menace to headmen. Then, as now, some headmen were either semi-literate or downright illiterate. The kgotla’s make-believe lawyers – all men as it happened – had very good knowledge of the law - some had spent some time in prison and obviously made very good use of the library. A kgotla lawyer would quote High Court judgements and all the relevant statutes and make clear the fact that the former was a superior court whose rulings customary courts could not contradict.
The following is not too far off translation of what this make-believe lawyer would say to court: “Kgosi, I would implore you to take heed of a judgement that was handed down five years ago by Justice So-and-so in the case of June versus July. In that case, his lordship ruled that courts should temper justice with mercy. I would also like to draw this court’s attention to another case in which a three-judge panel of the Court of Appeal ruled that Section 25 of the Penal Code should be read with Section 45 of the Criminal Procedure and Evidence Act.”
Some of their lawyering was mere bluffing but there was also real legal talk that could have stood up in a High Court. One of these lawyers was a now deceased Central District man who plied his trade in the Mahalapye, Serowe, Palapye and Tswapong areas to stunning effect. A keen imbiber, it is unlikely that he ever suffered what people who do that sort of thing now call “air lock” when he would shebeen-crawl through a village. The death knell on this trade came when the Customary Court Act was amended to limit participation in trials to the presiding officer and two headmen assessors. In a different time and with a different thinking, there would have been an arrangement similar to one that allows uncertificated but highly skilled artisans to be trade-tested and certificated at the Madirelo Trade Testing Centre. Of course that is a bridge too far and one that the Law Society would never want to cross.
Ironically though, Botswana may not be too far from a day when people who are clueless about law legally become lawyers. Despite a profusion of oversight institutions, capitalists have found a way to disrupt Botswana’s tertiary education system. The latter still find ways of circumventing supposedly stringent processes and systems in place to offer sub-standard education and get paid millions of pula for doing so. The result is that a good many students are clueless about the industry they studied for when they graduate from private tertiary education institutions. The fact that lawyers are a scarce-skill cadre means that there is a huge lucrative market for legal education. At some point, Botswana will have law schools that graduate people who are clueless about law, who may end up infiltrating the legal profession.