Systemic Economic Injustices and the Legal Profession: Should We

Remain By-standers?

Adv. Fred Ringo

Isaiah 59:15

“The Lord looked and was displeased that there was no justice”

Synopsis

1. Conceptual context of presentation

2. The Legal Profession was no bystander during Colonial Tanzania’s period of economic injustice

3. The Legal Profession was no bystander in the 1967 – 1986 period of economic injustice

4. The Legal Profession cannot be a bystander in the Post 1986 period of economic injustice

Conceptual context of presentation

Elements of injustice

1. Injustice thrives where there is darkness or ignorance (or both), it includes:

a. Coercion: compelling or restraining a person to act against his/her free will by threats/physical force. Elements of coercion include:

i. weapons/brute force (police/army/thugs/prisons)ii. The powers behind the force (state/money)iii. A claim to lawful authority (laws/bylaws/permits)

b. Deception: oppressors like to conceal their abuse of power:

i. About the use of coercive force (media control);

ii. About responsible person sending those who use coercive force (committees/inquiry commissions)

iii. Whether the use of force was legitimate/lawful

c. Isolation: oppressors isolate their victims from those who might bring a countervailing power to bear on the victim’s behalf

What economic injustice does• Economic Injustice creates inequalities.

• inequality is detrimental to the security of property rights, and therefore to growth, because:

a. it enables the rich to subvert the political, regulatory, and legal institutions of society for their own benefit. If one person is sufficiently richer than another, and courts are corruptible, then the legal system will favor the rich, not the just.

b. Likewise, if political and regulatory institutions can be moved by wealth or influence, they will favor the established, not the efficient.

c. This in turn leads the initially well situated to pursue socially harmful acts, recognizing that the legal, political, and regulatory systems will not hold them accountable.

institutional subversion.• Inequality crucially shapes institutional subversion:

a. In the legal context, the rights and wrongs of the case still matter even when the litigants are unequally matched.

b. But if there is some scope for private action to influence outcomes, then relative resources also matter. When the two litigants are relatively equally matched, the outcome depends on the merits of the case.

c. But when legal armaments are unequal, the stronger litigant has an advantage in court.

d. When courts are subverted, there is less reason not to harm in the first place.

e. If the politically strong expect to prevail in any court case brought against them, they would not respect the property rights of others.

f. This breakdown in the security of property follows inequality when institutions are weak to begin with.

g. The breakdown in property rights in turn deters investment, at least by the potential victims, with adverse consequences for economic growth.

Poverty

• “Massive poverty and obscene inequality are such terrible scourges of our times . . . that they have to rank alongside slavery and apartheid as social evils.”—Nelson Mandela, former president of South Africa.

• “rampant pauperization” as opposed to the “scandalous and ostentatious” lifestyles of high government officials. African countries, like Tanzania are running the risk of a social explosion of unpredictable consequences.” The dangers are all the greater, he added, because endemic poverty exists alongside visible signs of wealth.

• “Some take a plane to get treated for hay fever,” he wrote, “while others die because they can’t afford malaria treatment.” Burkina Faso Newspaper

Reduces Economic growth1. Inequality may prevent the benefits of growth from reaching

many of the poor,

2. “Extreme inequality is not just bad for poverty reduction — it is also bad for growth,” argues the UNDP report.

3. “Poor people remain poor partly because they cannot borrow against future earnings to invest in production, the education of their children and assets to reduce their vulnerability.

4. Insecure land rights and limited access to justice can create further barriers to investment. Deprived of public goods — such as information and legal rights — poor people are denied opportunities to contribute to growth.”

Role of Lawyers in Economic InjusticeTRADITIONAL ROLE:

1. advising clients (both external and in-house)

2.Drafting legislation, documents and pleadings

3. litigation

The Legal Profession was no bystander during Colonial

Tanzania’s period of economic injustice

Economic injustice under Colonial laws

1. The colonial system and law was vicious to colonized Africans, for e.g., lawyers in the mining industry they:

a. drafted laws, litigated and advised on economic activities which made huge profits for TNC;

b. ensured the exploitation of miners was entirely without legal responsibility.

c. In 1930, scurvy and other epidemics broke out in the Lupa goldfields of Tanganyika. Hundreds of workers died. No laws were drafted to ensure they had life saving facilities nor that they were paid enough to eat properly.

the Native AuthorityOrdinance, 1927

• Several strategies were employed under this law to incorporate native Africans into mainstream laws. It created a duty upon all the indigenous peoples (natives) to assist their respective Native Authorities and to attend before government officers when so directed by their respective Native Authorities

• Native Authorities were empowered to issue orders of general or particular nature, which orders would: regulate local brews, regulating movement of persons and livestock through a Native Authority area; prohibiting and restricting the burning of grass; and generally Native Authorities regulated anything done under native law or custom if seen to be repugnant to morality or justice.

• Native Africans in Tanganyika were introduced into mainstream legal system rather late. For most part of the British administration in Tanganyika, Africans had their own separate system of administration of justice quite apart from one catering for non-natives.

Role of the lawyer during colonial rule

• advising clients: these included the transnational corporations and by Europeans settlers who facilitated the exploitation of African labor in mines, plantations and social infrastructure.

• making the system of justice work- ensuring that received laws such as the Indian Law of Contract Ordinance, labor laws and criminal laws were enforced by the colonial courts

• in law making the Colonial client state needed treaties that justified the taking away of land and ordinances that ensured that TNCs can exploit Africans at will.

Examples 1

• Credit to Natives (Restriction) Ordinance, 1931

1.Definition of “Native”2.Moneylenders and their acts - forfeiture3.The economic injustice impact on “Natives”4.The economic injustice consequences today

Credit to Natives (Restriction) Ordinance, 1931,

1. Definition of “Native”– : "... any member of an African race and does not

includes a Caucasian, Indian, Arab or a Somali.“

– But under the Land (Law of Property and Conveyancing) Ordinance an Arab is a native, so no consent to the alleged sales would have been required; while under this Ordinance he is a non-native, and may not give credit to a native without an administrative consent.

Africans of Somali origin

• Africans of Somali origin preferred to be categorized as non-natives under the Somalia (Miscellaneous Provisions) Ordinance which came into operation in 1949. This categorization of citizens of Somali origin as non-Africans was forgotten in our laws until it was repealed by the Laws Revision (Miscellaneous Repeals) Act No.8 of 1994.

• No Non- native could give credit to a Native without obtaining written consent of the Native Authority– No capital to invest in industries and major

enterprises such as farming

– Economic injustice to Africa Natives

• The Credit to Natives (Restriction) Ordinance of 1931 restricted financial credit which to non-Africans could extend to natives.

• Africans had their own law regulating their dhows, boats and other water vessels-colateral.

• Some of these laws have remained in the statute books well into independence.

The Moneylenders

• Walter Rodney would point out on Page 229 of his famous work, “How Europe Underdeveloped Africa, that East African financial institutions — banks and insurance companies — were employed to protect “colonial expatriate interests” and cut short the development of “African economic power”.

The Outcome(s): 1. Classes

• Capitalism as a system within the metropoles or epi-centres had two dominant classes: firstly, the capitalists or bourgeoisie who owned the factories and banks (the major means for producing and distributing wealth); and secondly, the workers or proletariat who worked in the factories of the said bourgeoisie. Colonialism did not create a capital-owning and factory-owning class among Africans or even inside Africa;

• nor did it create an urbanised proletariat of any significance (particularly outside of South Africa). In other words, capitalism in the form of colonialism failed to perform in Africa the tasks which it had performed in Europe in changing social relations and liberating the forces of production.

2. Minority Groups

• Part of the explanation for the lack of African capitalists in Africa lies in the arrival of minority groups who had no local family ties which could stand in the way of the ruthless primary accumulation which capitalism requires. Lebanese, Syrian, Greek and Indian businessmen rose from the ranks of petty traders to become minor and sometimes substantial capitalists.

3. African businessmen

• Taking Africa as a whole, the few African businessmen who were allowed to emerge were at the bottom of the ladder and cannot be considered as ‘capitalists’ in the true sense. They did not own sufficient capital to invest in large-scale farming, trading, mining or industry. They were dependent both on European-owned capital and on the local capital of minority groups.

4. Industrialization Pattern

• Industrialization does not only mean factories. Agriculture itself has been industrialized in capitalist and socialist countries by the intensive application of scientific principles to irrigation, fertilizers, tools, crop selection, stock breeding, etc. The most decisive failure of colonialism in Africa was as failure to change the technology of agricultural production.

5. division of labour

• Failure to improve agricultural tools and methods on behalf of African peasants was not a matter of a bad decision by colonial policy makers. It was an inescapable feature of colonialism as a whole, based on the understanding that the international division of labour aimed at skills in the metropoles and low-level manpower in the dependencies.

Conclusion(s) of the role of lawyers during colonial rule

1. The majority of the citizens of Tanzania were denied opportunities to participate fully in economic activities. This was done purposely with the objective of facilitating colonial rule.

2. Most of the citizens had no choice but to engage in the informal sector while the formal economy was largely in the hands of colonial rulers and settlers.

3. The colonial government employed a number of tactics to facilitate settlers and a few natives to take command of economic activities in the formal economy. These included selective lending; limiting access to education; confiscation of land, and unfair business licensing.

• This was pure economic injustice

Expatriate Interests

as in other areas of colonised Africa, “dominant expatriate interests” got the colonial administration to “block the development of a fully capitalist system in order to create a structure of servile dependency which would maximize monopoly interests”. The result was that “the great mass of (African) peasantry (was) consigned irrevocably to the bottom”.

B. The Legal Profession was no bystander during the Socialist period of economic injustice

• The Arusha Declaration powerfully and simply expressed, one of the deepest truths of the colonial experience in Africa, when it stated that:

“We have been oppressed a great deal, we have been exploited a great deal, and we have been disregarded a great deal.”

Role of lawyers

• lawyers drafted a series of laws that the framework for this new system of property rights and resource governance, all of which reinforced the authority of the state (and specifically the President) to allocate and designate the uses of Tanzania’s natural resources.

• The sometimes forced movement of people into villages under the policy of ujamaa (collective production) resulted in better health and education services and the creation of a ―Tanzanian‖ identity, but it was by all accounts not an economic success. The country remained among the poorest in the world.

Villagisation and economic injustice

• Led to the demarcation of communal range lands between villages which seriously disrupted pastoral land use. New village boundaries subdivide customary range land areas into discrete administrative units. In doing so they often deny herders access to resources they always used, hence mobile pastoral land use has continued to be taken away . Operation Vijiji and the creation of Ujamaa village hardly took into account the land rights of pastoralists.

• More lands very often belonging to customary herders in villages were alienated through government allocations justified by the vague clause “public interest” (or “national project”) arguments. The more publicized land conflict between one of the large parastatal, the National Agriculture and Food Corporation (NAFCO) and the Barbaig agro-pastoralists in the Hanang District of Arusha is an illustration of the conflict over land between parastatals and peasant/pastoral communities

todate

• that the Land Ordinance 1923 Cap 113 and other supplementary statutes such as the Land (law of Property and Conveyance) ordinance Cap 114, the Land Registration Ordinance Cap 334, the Town and Country Planning Ordinance Cap 378, the Land Acquisition Act 1967 and the Limitation Act 1971 all give primary emphasis to the Granted Right of Occupancy, very little is provided for the Deemed Right of Occupancy which is the tenure for the majority of the inhabitants of Tanzania.

• He further argued that land tenure system of the Maasai has not received comprehensive treatment by the legal scholars. Pastoralists cannot live a decent life if their pastoral lands are grabbed away from them by the state. (Ringo Tenga (1992))

Results:• Economic injustice was done to those forced off

productive land into ill-planned villages- entrenchment of poverty.

• The entrenchment of a small elite that engaged with non-natives to plunder natives

• Lawyers were the main protagonists thru advising parastatals, crop marketing boards, litigating for non-natives and drafting socialistic laws.

Public Enterprises

• In conjunction with non-Natives, plundered thru pilferage, embezzlement, mis-management and political patronage the economy

• The laws that were drafted and enforced did not allow for the private sector to flourish especially for natives – marginalized them.

• C. The Legal Profession cannot be a bystander after 1986 period of economic injustice

Land property rights

• When President Nyerere left power in 1985, the new government of President Mwinyi began to chart new directions for Tanzania’s economy and society. By the early 1990s, it was apparent that a new approach to property rights and resource governance was needed, and steps were taken, including the establishment of a Presidential Commission of Inquiry regarding Land Matters (the Shivji Commission), to define it.

• In general, the approach involved a gradual transition to a legal framework that supports private property rights (while still granting the President ultimate authority over all land), permits individualized (rather than collective) control of resources in farming areas, and promotes private investments that utilize Tanzania’s natural resources for economic gain.

Natural Resources Rights• The legal framing of this approach has also

integrated initiatives that recognize aspects of customary tenure that were, in theory, abolished in the ujamaa period; retained the rights that women were granted in that period; and continued some of the laws regarding communal management of rangeland, forests and wildlife, especially with the idea of preserving Tanzania’s great national wealth of wild animals. The door has been opened wide (too wide, some say) to foreign investors.

The Zanzibar Declaration, 1991

• authorized Party members (CCM) to: – participate in private economic activities– earn more than one salary, – buy shares and take up directorships in private

companies and – build houses to let

• things which were expressly forbidden under the Arusha Declaration.

the privatisation policy

• Tanzania adopted the privatization policy in 1992 after recognizing that state enterprises were becoming an unbearable burden and the Government was unable to sustain them.

• However, due to lack of adequate skills, entrepreneurship and capital, participation of the majority of the citizens of Tanzania in the privatization process has been rather limited.

Capital Flight and economic injustice

• The taxation system has improved. It now recognizes the role played by the private sector and has introduced new mechanisms to collect taxes e.g., VAT, and plugging tax evasion loopholes. However, thru the use of lawyers ,money-laundering, tax planning /evasion thru the use of Tax Havens and cash-based investment in the construction industry continue to evade tax payments.

Modern Role of Lawyers in addressing economic injustice

• There is no disputing the role that lawyers have played in African development. Some of the greatest figures in the independence movements of countries throughout the continent were lawyers. And the lack of well-trained and properly paid lawyers, independent judges and fairly applied laws in African countries remains one of the many barriers to change for the better.

• But the modern world has changed with globalised relations and transactions. How can a Tanzanian lawyer be of benefit to reduce economic injustice? One way to go about this would be for lawyers to think about how they can find ways to use their skills to meet new challenges on the local, national, and global level.

Areas of economic injustice lawyers can act upon

1. The need to assist/help African SMEs / small, disadvantaged businesses to grow-(potential employers) move up the economic scale by:

a. entity formation, contract and marketing basics, and protecting your catering business.

b. Entity formation, including liabilities, taxes, and formation considerations

c. Employment basics, including the differences between employees and independent contractors, and

d. Reduced fee scales for African SMEs;

e. Provide them with best international practice/standards of legal advise in contract drafting, employment law, business entity formation, and leasing

f. Provide their owners with legal education and services on complex transactions (finance & banking, engineering contracts, PPPs, JVs, M&A, etc )

g. Provide assistance concerning financial markets, competition matters, corporate and consumer fraud, and housing.

Addressing Ignorance. Enemy No.12. Ensure school children have equal access to a high quality

education. Ensure that proper law is drafted that compels:

a. proper quality teacher training and education delivery including text and curricula development;

b. School nutrition, accommodation and buildings including environment;

c. Organise Advocacy, campaigns and lobbying for adequate budgets & funding of education al all levels (50% for 10 years)

d. Forgery, corruption and shoddy delivery is mitigated, punished and acts in the opposite are rewarded

3.

3. Legal aid representation to victims of workplace discrimination and paupers

Addressing Poverty. Enemy No. 2

• Well-heeled corporate lawyers in wealthy global firms form part of a system seen by many Africans as having barely evolved since the colonial world order allowed London's commercial hub to exploit the continent's riches at will. They continue to advise, draft and assist TNC exploitation of Africa’s resources

• The current media and TNC emphasis on Africa's natural resources, that the investment potential and Africa's natural wealth will assist African economies out of poverty is a wrong and rather stupid assumption. Until the continent stops being seen as a piggy bank for the rest of the world to raid, progress on poverty alleviation will be limited.

Example 3 on Poverty

• The High Level Panel on Illicit Financial outflows from Africa.

• Lusaka, 19 June 2013 (ECA) - The High Level Panel on Illicit Financial Flows held a two day meeting in Lusaka from 17th -18th June 2013. The ten member Panel chaired by His Excellence, former President of South Africa Mr. Thabo Mbeki was established by the Economic Commission for Africa (ECA) and the African Union (AU) and was inaugurated in February 2012 to address the debilitating problem of illicit financial outflows from Africa.

1. The meeting of over 60 key stakeholders from East and Southern Africa is part of a continental wide consultative process aimed at sensitizing and building a coalition on illicit financial flows which are grossly hurting the continent. It is estimated that Africa loses USD$50 billion a year in illicit financial flows that find their way to developed countries draining the continent of the much needed resources. This creates economic injustice- globally and in African countries.

2. This is the single major economic issue hampering Africa’s development.

3. H.E. Mbeki -illegal financial flows was a complex and global problem which Africa could not solve on its own without other players such as the G8 countries.

4. “What we are saying is that what role can we play ourselves as Africans where these flows originate and what role can the G8 play as a major destination for these illegal flows?”

5. poverty and the lack of Africans owning key industries like mining and oil corporations was fuelling illegal financial flows. “The biggest problem we have in Africa is poverty and unemployment which has made our people conduits, once we deal with poverty these problems will not be there”.

6. President Sata -there was need to build a strong entrepreneurial base in Africa so that Africans can successfully compete in the natural resource sector, “It doesn’t matter whether it’s in Cape Town or Cairo you don’t find many corporations owned by Africans worth talking about”

7. the effects of illicit financial outflows such as:

a. the draining of foreign exchange reserves, b. tax evasion and reduced tax collection, c. canceling out of investment inflows and d. a worsening of poverty economy.

8. Lawyers role is in the process of passing instruments to improve greater transparency to monitor the flow of exports and imports in Tanzania.

The statistics9. While illicit financial flows are a global problem, their

impact on the continent is monumental thereby representing a significant threat to Africa’s governance and economic development.

10. Current evidence shows that Africa lost over US$ 854 billion in illicit financial flows between 1970 and 2008 corresponding to a yearly average of about US$ 22 billion.

11. The trend has been increasing over time and especially in the last decade, with an annual average illicit financial flows of US$ 50 billion between 2000 and 2008.

12. However, these estimates may well be short of reality as they exclude such other forms of illicit financial flows as:

e. proceeds from smuggling and mispricing of services.

f. undocumented commercial transactions

g. criminal activities characterized by over pricing, tax evasion, false declarations, mispricing of trade exports and imports facilitated by some 60 international tax havens and secrecy jurisdictions that enable creating and operating of millions of disguised corporations, oil companies, anonymous trust accounts and fake charitable foundations.

h. money laundering, transfer pricing and corruption

13.The level of illicit financial outflows from Africa exceeds the official development assistance to the continent, which stood at US$46.1 billion in 2012.

Constitutional & Administrative law issues

1. Lawyers are the best placed persons to think, analyze, educate and promote constitutional reforms, including ensuring any constitution accepted:

a. Checks the power of the executive in Tanzania;

b. Introduces proper new checks and balances, all in an effort to introduce transparency and accountability to government decision-making;

c. Is not partisan and will take Tanzanians forward

• These call for lawyering that addresses economic injustice at three levels: on the local, national, and global level. One way to go about this would be for lawyers to think about how they can find ways to use their skills to meet these new challenges

The Botswana Attorney-General Dr Athaliah L Molokomme SADC Meeting August 2008

“one of the benefits will be that in an increasingly globalizing and competitive world it makes more sense to operate as regional blocks rather than individual countries, which strengthens the negotiating position. Lawyers should realize that they have a new role to play in a way that they may never have dreamt of before. Lawyers should acquire the skills necessary to enable them to influence government policy beyond the traditional, routine matters of domestic law and litigation.”

Regulatory Frameworks and economic injustice

• the regulatory frameworks required to prevent abuses of their position by private enterprises. Both corruption and an uncertain legal environment inhibit the realisation of benefits from reform. The ‘trickle down’ of welfare to poorer sections of society has been inadequate, as has the extension of financial services to small businesses and rural areas.

Public investment Rights

• Further public investment is required, especially in health, education and infrastructure. state owned enterprises, taxation system and the public services sector, and the emergence of the private sector.

• Despite the establishment of the privatisation trust fund by the Government there were no arrangements in place that would help Tanzanians to buy shares in privatised companies; the absence of an Economic Empowerment Policy was amongst the reasons for the stalemate.

Economic Empowerment

• In this regard, the Government has resolved to put in place an Economic Empowerment Policy that will serve as a roadmap for the participation of the majority of the citizens of Tanzania in all sectors of the economy

National Economic Empowerment Policy,

• Recognizes economic injustice, in that:

1. The participation of the majority of the citizens of Tanzania in the modern economy continues to be limited.

2. to a large extent that the economy still remains in the hands of foreigners and a few Tanzanians. This is contrary to the objective of promoting a broad-based economic growth that ensures the prosperity of all Tanzanians.

3. Politically, the lack of opportunity of the majority of Tanzanians to participate effectively in the formal economy has been a source of concern to the way the economy is managed. Reasons that have restricted their effective participation include:

a. lack of capital;

b. limited entrepreneurship and experience in managing business;

c. and lack of credit.

d. The absence of a policy on economic empowerment has also been a contributory factor.

Challenges faced by Tanzanians in economic injustice

• In their endeavors to fully participate in the economy, most of the citizens of Tanzania generally face the following constraints:-

1. Unavailability of capital;

2. Lack of knowledge and experience, which is further aggravated by limited education and training, inhibitive customs and traditions and an inappropriate mindset towards development;

1. Problems associated with procedures and implementation of the privatization policy;

2. Lack of reliable markets and inability to penetrate competitive markets;

3. Limited cooperation, weak cooperatives and lack of common voice in pursuing common goals and overcoming problems in the sectors of the country’s economy.

4. Other constraints include:

a. Weaknesses in the tax regime, the legal and regulatory framework and public services delivery; and

b. Deficiencies in economic, social and administrative infrastructure.

Effects today – the Glass Ceiling

1. Many “Native” traders/duka owners but No “Native” WHOLESALERS

2. Emergent “Native” private bankers –little BANKS/MICRO-FINANCERS

3. “Natives” : un-bankable, machingas, embezzlers, professionals, politics and bureaucrats ONLY - Lack financial opportunity

4. Who owns the majority of industries- next generations of the same “non natives”

5. Can afford lawyers who practice the traditional way of securing the status quo

6. Economic injustice to the “natives” was OK

Policy Vision

• The Empowerment of the citizens of Tanzania is among the goals set in the Tanzania Vision 2025. It is envisaged that, by the year 2025, a large segment of the national economy will be owned by Tanzanians. This process will embrace all Tanzanians by availing equal opportunities to all groups to develop themselves, particularly the poor. In addition, a more favorable business environment will be created to foster a strong economy that is capable of competing effectively in a globalised world market.

Preamble

affirmative action

• action favoring those who tend to suffer from discrimination; positive discrimination

• the practice of improving the educational and job opportunities of members of groups that have not been treated fairly in the past because of their race, sex, etc.

Empowerment • the giving or delegation of power or authority;

authorization

• 2. the giving of an ability; enablement or permission

• 3. (in South Africa) a policy of providing special opportunities in employment, training, etc for Black people and others disadvantaged under apartheid

Economic activities

Economic empowerment

Section 2 (1)

National Economic Empowerment Fund “The Fund”

Notes:

1. There is very little or no tangible progress made under this law to address economic injustice.

2. There is recognition but no clear mechanisms in place to address historical disadvantages

3. There is no advocacy of this law!!

Conclusion:

1. There is too much economic injustice in Tanzania today for lawyers to be bystanders

2. Areas that will need lawyers to address today are:

a. Land rights laws to reduce disputes, allow clarity and prevent current land grabbing

b. Public interest litigation to assist the poor en masse

c. Reform of the litigation system to ease court congestion and allow private ADR to flourish by having mediated agreements registered like awards

d. Human rights abuse handling and resolving

e. Complex contract skills and negotiation for the benefit of Tanzanians

f. Addressing matters of money laundering, capital flight and tax evasion that cause massive economic injustice

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