Shall we kill the lawyers and the judges? (2)

The doyen of African politics and former President of Ghana, the late Osagyefo Dr. Kwame Nkrumah, very early in 1962 noted that “in a developing country, the first priority is not for lawyers trained to conduct litigation between wealthy individu­als.

The lawyers needed in a developing country are, in the first place, those trained to assist ordinary men and women in their every day legal problems and partic­ularly in problems likely to arise through industrializa­tion… Secondly and perhaps most important of all, we need lawyers in the service of the state, to deal with trea­ties and commercial agree­ments and with questions of private and public Interna­tional Law”. In 1989, a code of conduct for lawyers in the European Community artic­ulated the functions of law­yers.

The code states that “In a society founded on respect for the rule of law, the law­yer fulfils a special role. His duties do not begin and end with faithful performance of what he is instructed to do so far as the law permits. A lawyer must serve the in­terests of the just as well as those whose rights and liber­ties he is trusted to assert and defend; it is his duty not only to plead his client’s cause but to be his adviser”.

It was further explained that “A lawyer’s function therefore, lays on him a va­riety of legal and moral obli­gations (sometimes appear­ing to be in conflict with each other) towards the cli­ent, the courts and other au­thorities before whom the lawyer pleads his client’s cause or acts on his behalf; the legal profession in gener­al and each fellow member of it, in particular, owes a duty to the public for whom the existence of a free and inde­pendent profession, bound together by respect for rules made by the profession it­self, as an essential means of safeguarding human rights in the face of the power of the state and other interests in society”.

There is no de­nying the fact that the mul­tifarious tasks which a law­yer has to perform in order to help maintain stability and equilibrium have many times brought him and the profession in conflict with the powers that be. Accord­ingly, the question has al­ways been whether the law­yer can and infact, should defend persons classified as hardened criminals.

It ought to be known that the catego­ries of hardened criminals is never closed. They vary from time to time and from place to place. In this era of mas­sive and mind boggling cor­ruption, economic sabo­tage, insurgency, militancy, abuse of power and public trust, and all forms of agi­tation including agitations occasioned by alleged op­pression and marginaliza­tion, should the lawyer stand akimbo and aloft, and wash his hands off those per­ceived as the enemies of the society? Can governments at any level – federal, state and local – determine the am­bit of the role a lawyer per­forms in the administration of criminal justice? Should a lawyer be vilified for de­fending a person alleged to have committed a crime no matter how heinous the of­fence is alleged to be? Must all members of society be known as conformists? Ex­perience has shown that hu­man relations are dynamic and the push and shove of daily existence are capable of erupting into calamities.

How does the lawyer situate himself in the management of the dynamics of life in his society? Perhaps, we may receive some guidance, in­struction and wisdom from late Lord Denning’s wise dic­tum in the celebrated case of Rondel V. Wesley (1967) 3 All ER 993. He said of the lawyer: “As an advocate, he is a minister of justice equal­ly with the judge.

He has a monopoly of audience in his higher court. No one save he can address the judge, unless it be a litigant in person, this carries with it a correspond­ing responsibility. A barrister cannot pick or choose his cli­ents. He is bound to accept a brief for any man who comes before the courts”. Lord Denning added that “He” (the lawyer) “must accept the brief and do all he hon­ourably can on behalf of his client. I say, “all he honour­ably can” because his duty is not only to his client, he has a duty to the court which is paramount. It is a mistake to suppose that he is the mouth piece of his client to say what he wants; or his tool to do what he directs. He is none of these things.

He owes al­legiance to a higher cause – It is the cause of truth and jus­tice”. Lord Denning then em­phasized that the Lawyer “… must disregard the most spe­cific instructions of his cli­ent if they conflict with his duty to the court. The code which requires a barrister to do all these is not a code of law; it is a code of honour. If he breaks it, he is offending against the rules of the pro­fession and is subject to its discipline”.

The late President Kaun­da, in a well acknowledged address to the Law Society of Zambia noted that “the lawyer in a developing so­ciety must be something more than a practising pro­fessional man; he must be more than the champion of the fundamental rights and freedom of the individu­al. He must be, in the full­est sense, a part of the soci­ety in which he lives and he must understand that soci­ety if he is to be able to par­ticipate in its development and the advancement of the economic and social well-be­ing of its members. The law­yer must go out beyond the narrow limits of the law, be­cause while the law is the in­strument through which so­ciety is preserved, in its shape and character, it is the reflec­tion of the society”.

Speaking from the vantage position of the inner bar, it is this writer’s belief that a majority of judges as well as practising lawyers are in massive and unalloyed sup­port of the war against cor­ruption. There is therefore no profit in seeking to demon­ize each and every member of the bar as a supporter of the corrupt merely because each allegedly corrupt person has a lawyer by his side.

Let the truth be told – law enforce­ment is impossible without the lawyers and the judges. The bulwark of democracy is the rule of law. The constitu­tion has created a framework not only for the sustenance of democracy but for the pres­ervation of the fundamental freedoms in which the consti­tution has provided for. Per­haps, we ought to emphasize that one of such fundamen­tal freedoms is the presump­tion of innocence enshrined for the benefit of a person al­leged to have committed a criminal offence.

In fact, it is not good for the fight against corruption for anyone to be presumed guilty before being given the opportunity to vin­dicate his innocence or on the other hand, to name his ac­complices. In more stable or settled societies, law enforce­ment, including the preser­vation of law and order is a very patient and arduous as­signment. Corruption often thrives through cooperation and conspiracies and in many instances, links the weak and the strong. The point which must be made, and which may be unpalatable, is that the pleasant aroma which drifts from the kitchen does, at times, attract flies.

This is a roundabout way of say­ing that corruption is a glue which may oftentimes tie both those who make allega­tions and those who need to confirm the efficacy of those allegations. Accordingly, the complainant needs the co­operation of even the ac­cused to stem the tide. Let the state and its agents tread soft­ly against the legal profession lest we throw the baby away with the bath water. Read my lips, a society without law­yers, whether on the bench or at the bar, cannot thrive and cannot survive.