Organisation and Development of the
Legal Profession in Africa, in particular

the ability of the Bar and judiciary to
uphold the rights of both the citizen and

the state
His Hon.Judge T O. Elias'*'

By way of a Preface to the present study on the legal profession in Commonwealth
Africa, I a brief reference should be made to some of the less well-known
contributions made by Lord Denning to the expansion of the frontiers of English
law in this field.

I wish to recall that I first sat under the Chairmanship of Lord Denning in the
Committee on Legal Development in the Colonies, under the auspices of the
House of Commons, in 1954; I was later honoured by an invitation of the Chief
Justice of Trinidad and Tobago to give a Commonwealth Lecture series there in
the footsteps of Lord Denning who had, a few years earlier, given a similar, but no
doubt more authoritative, series oflectures on the Common Law in Trinidad and
Tobago; and at the Commonwealth Magistrates Association Conference at Kuala
Lumpur I was to have given one of the keynote addresses under Lord Denning's
Chairmanship, but the second coup d'etat in Nigeria, in July 1975, prevented me
from leaving Lagos to attend the Conference. I should also recall the two notable
occasions when Lord Denning came to Nigeria: once to participate in the
Constitution-making Conference on the eve of independence, and again, in 1974,
when, accompanied by Lord Elwyn-Jones the then Lord Chancellor of Great
Britain, Lord Denning sat with my colleagues and me, as Chief Justice, in the
Supreme Court of Nigeria to hear an appeal case.

Thus Lord Denning can be seen as an indefatigable promoter of the
development of the legal profession in the newer Commonwealth.

The legal profession in Africa, both at the national and the inter-African level,
has had a somewhat chequered history, but the period 1957 to 1960 may be

"Judge, sometime President, International Court of Justice.
L The occasion for this study was the invitation by the International Bar Association for me to deliver

the keynote address at the African Regional Conference, held in Nigeria, on the main topic, entitled:
"Organisation and Development of the Legal Profession in Africa, in particular the ability of the Bar
and the judiciary to uphold the righls of both the citizen and the State" on August I, I985.

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THE DENNING LAW JOURNAL

regarded as its watershed. We may perhaps begin the story with the London
Conference, held under the chairmanship of the Right Hon. Lord Denning, on
the "Future of Law in Africa" at the beginning of the year 1960, which Lord
Denning described in his foreword as:

"for Africa a year of decision, indeed a year of destiny. One country after
another is acquiring independence, or looking forward to it. Statesmen and
lawyers are meeting together to frame new constitutions. But the well-being
of a people depends not only on the form of government they have, but also
on the ordinary laws of the land. And it is the ordinary law which the
Conference considered." 2

As well as discussing general legal problems, the Conference considered the
issue of legal education, which lay at the root of the legal profession throughout
Africa. It noted that, with the approach of independence, various countries were
already showing real concern with the future of their laws. Two major problems
loomed large on their horizon: reorganization and reform of legal education and
the provision of research into the local and the indigenous laws to serve the needs
of the emerging nations. As for legal education, this had almost everywhere been
obtained in the United Kingdom and Ireland and that meant that the lawyers thus
available were learned only in the laws and practices of England and Ireland, but
knew not African customary laws which formed reasonably substantial parts of the
law they must practise back home in Africa. Knowledge of these local laws had to
be painfully and gradually acquired by long practice as their overseas training had
not, and could not, have embraced African and Islamic laws. It therefore b?came
necessary that legal education, to be meaningful and useful in conditions of
independence, must be provided locally and urgently.

In Nigeria, a Federal Government committee report, in 1959, recommended
the establishment of a Faculty of Law at the University College, Ibadan, to teach
academic courses in the traditional law subjects for three years, while a Law
School was to be established in Lagos to teach an additional one-year professional
law course with particular emphasis on the solicitors' side of the profession, since
the local legal profession is fused and practitioners were called to the local Bar and
required to practise as barristers and solicitors, even though their overseas training
had been limited to that of barristers.

Also, at the London Conference, it was noted that a Law School and a separate
Department of Law had been set up at University College of Ghana. For some
time a Law School had been established at the University of Liberia, teaching a
three-year course after completion of the University course. The Conference
noted that there was as yet no provision for legal education in East Africa, although
the Royal Technical College, Nairobi, provided instruction in one or two subjects
of legal interest. In the Sudan, the Faculty of Law was being expanded at the

2. The Fulure oj Law ill AJrica: Record oj Proceedillgs oj the LOllium COilference, 28 December /959-8
Jalluary /960, Butterworth & Co., London, 1960.

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ORGANISATION AND DEVELOPMENT OF THE LEGAL PROFESSION IN AFRICA

University of Khartoum to provide full-scale teaching for practice at the Bar. Law
teaching was just beginning at the then University College of Rhodesia and
Nyasaland. In the United Kingdom itself, the legal education being provided at
British universities was being broadened in many cases to cater for the special
needs of overseas law students. Indeed, a start had been made to offer limited
courses in African and Islamic law in places like the London School of Oriental
and African Studies and the University of Southampton. The Council of Legal
Edl.j.Cation offered three-month Post Final courses following the Bar Finals, in
addition to being able to take one or two papers in African and Islamic law studies.
In this way legal education in the United Kingdom began to go some way to
meeting the needs of African law students during this transitional period. All these
could not, however, be regarded as a substitute for what Africa needed for its
post-independence legal profession. The London Conference finally recom-
mended the setting up of a committee, under the chairmanship of Lord Denning,
for a consideration of what facilities should be provided for additional instruction
and training that might be required to ensure that those members of local Bars in
Africa who obtained their legal qualifications in the United Kingdom possessed
the knowledge and experience requisite to fit them for practice, with special
reference to (i) the acquisition of practical experience in addition to academic
qualifications; and (ii) the giving of instruction in the functions of solicitor to those
who were English barristers or possessed similar qualifications, and who practised
as members of a fused profession. Consideration was also to be given by the same
or another committee to the practical problems associated with bringing this about.

Establishing the new legal profession
It seems sufficient to take Nigeria as typical, not only because it has as many
members of the legal profession as there are in the rest of black Africa put
together, but also because its pattern of the new development in the legal
profession has been adopted elsewhere in British Africa. Besides, pride of place
must be given to Nigeria in that it probably provided the first African legal
practitioner to be called to the Bar, at the Inner Temple, in 1828.3

The legal profession of Nigeria and, as already explained, of much of British
Commonwealth Africa, may be said to be based on two major enactments - the
Legal Education Act and the Legal Practitioners Act of 1962. Under the Legal
Education Act was established the Council of Legal Education for the whole
country, presided over by the Chief Justice of the Federation and having as
members the Federal and State Attorneys-General, two Judges of at least High
Court rank, the Chairman of the Nigerian Bar Association and some 28 members
of the Bar appointed by the Bar Association, the heads of all Faculties of Law in
Nigerian Universities, the Director of the Nigerian Law School established by the

3. See G. Thompson, The Firs/ Genera/iOlI of Sierra Leolle Lawyers (1952), at pp. 52 e/ seq., Govt.
Printer, Freetown. This man arrived in Lagos after his call to the Bar but soon left to establish his
practice in Freetown; see also, Elias, G(fvemment alld Politics ill Africa 2nd ed. (1963), at p. 145.

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Council and a few other persons appointed by the Prime Minister. The Council is
responsible for legal education of all persons seeking to become members of the
legal profession. For this purpose the Council issues qualifying certificates,
although giving the Federal Attorneys-General power of enrolment of persons
wishing to become legal practitioners. But those applying for the certificates must
satisi)' the Councilor the Attorneys-General that they have completed a course of
practical training of at least one year at the Nigerian Law School, after having
obtained a university degree in law.

The Legal Practitioners Act makes provision for the admission and discipline of
members of the legal profession who are made up of both existing and future
members who have satisfied the requirements of the Legal Education Act. The
Roll of Barristers and Solicitors is kept under the authority and supervision of the
Chief Justice of Nigeria, subject to the overall regulation of the General Council of
the Bar under the chairmanship of the Federal Attorney-General, State
Attorney-General and some 28 other members of the Nigerian Bar Association
and also members of the General Council of the Bar. A Legal Practitioners
Investigating Panel, charged with the duty of conducting a preliminary
investigation into any allegation of unprofessional conduct against a legal
practitioner, was also constituted to replace the Legal Disciplinary Committee
which operated in the pre-Independence era for over fifty years. This Panel
consists of the Federal and State Attorneys-General and ten legal practitioners of
not less than five years' standing who are appointed by the Nigerian Bar
Association. A case may be referred by this Panel to a Legal Practitioners
Disciplinary Tribunal consisting of a Judge of the High Court of a State,
appointed by the Chief Judge of that Court, the Federal and State
Attorneys-General and fifteen legal practitioners of not less than five years'
standing appointed by the Bar Association. The penalties for unprofessional
conduct are admonition, suspension or the striking off the Roll of the name of a
practitioner found guilty by the Tribunal. There is a right of appeal to the
Supreme Court of Nigeria.

There is a Legal Practitioners Remuneration Committee consisting of the
Federal and State Attorneys-General, chairman and three members of the
Nigerian Bar Association, existing to curb the possible charging of excessive fees
by legal practitioners. Other safeguards for clients exist in respect of the keeping of
accounts and other records for clients' monies, including the compulsory banking
of these monies, and there is provision for ensuring liability for professional
negligence of any practitioner guilty of the offence. There are provisions for the
exemption of certain lawyers who are office-holders from the requirement of
enrolment, and these are the Attorneys-General, Solicitors-General, Directors of
Public Prosecutions and other such other persons in the public service in the
Federation or State as may be specified by order of an Attorney-General. One
important provison of the Legal Practitioners Act is that the legal profession must
remain fused, that is to say, that a practitioner continues to be entitled to practice

52



ORGANISATION AND DEVELOPMENT OF THE LEGAL PROFESSION IN AFRICA

as a barrister or solicitor, as has been the case since the early 1860s. Another
important provision is that the Chief Justice of Nigeria has power to grant an ad hoc
permission to a lawyer from a country with similar legal arrangements to appear
before a Nigerian court, often based on reciprocity. This implies that there is no
general right of non-Nigerians to be permanently enrolled with a view to
setting-up in practice as a barrister and solicitor. Those Nigerians who had been
called to the Nigerian Bar and who were not ordinarily resident in Nigeria ceased
to be members of the Nigerian Bar as from the date of the coming into force of the
Act in 1962. Generally, a person is entitled to have his name enrolled: (a) ifhe is a
citizen of Nigeria; (b) if he satisfies the Chief Justice that he is of good character;
and, (c) if he produces to the Registrar of the Supreme Court a qualifYing
certificate showing that he has fulfilled the requirements of the Legal Education
Act, that is to say, that he has a recognized university degree in law and that he has
passed the examinations of the Nigerian Law School at the end of the one-year
course. It is useful to mention that Africans from other countries have been taking
university degrees in law and been allowed to attend courses at the Nigerian Law
School and, of course, been called to the Nigerian Bar, since 1962. An important
provision of the legislation and other regulations made under it is that such
arrangements have been made for citizens of the Organization of African Unity to
become qualified as members of the legal profession in Nigeria upon satisfying the
necessary legislative requirements. The Council of Legal Education has, of
course, to sanction such exemptions in favour of non- Nigerians wishing to practise
law in Nigeria.

In this way the Legal Education Act, as well as the Legal Practitioners Act, has
ensured that only those satisfYing them can become members of the Nigerian legal
profession. There are exemptions in the case of those who had university
qualifications in law outside Nigeria, but they must also go to the Nigerian Law
School for one year, if permitted to do so by the Council of Legal Education.
Their qualifications must be those of certain specified universities in America or
elsewhere in the Commonwealth, for which arrangements have been made
beforehand by the Council of Legal Education. All those candidates admitted to
the one-year course at the Nigerian Law School must also attend courses in the
Nigerian Legal System, the Nigerian Constitution, the Nigerian Land Law and
the Nigerian Criminal Law, showing also a certificate obtained at the end of the
one-year course. Only graduates from Nigerian universities are exempted from
this Part 1 of the course in the Nigerian Law School. All students must of course
pass also Part 2 which consists of the traditional subjects like contract, tort, equity
and trusts, company law, industrial law and, of course, etiquette and other subjects
necessary for practice as a solicitor.4

The foregoing arrangements for the legal profession in Nigeria may be taken to
apply, mutatis mutandis, generally to British Africa. The position is also governed in
4. Elias, Nigeria: Developmelll of ils Laws arid COllslilulioll, British Commonwealth Series, No. 14,

Stevens & Sons, 1967, at pp. 387-395.

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THE DENNING LAW JOURNAL

those countries by the Legal Professions Act of 1960 of Ghana, which came into
force in 1962, superseding the General Practitioners Act of 1958. There may be a
General Council of the Bar or a Board of Legal Education but the overall
provisions are generally as described above.s

The African legal profession before and since independence
The organization of the Legal Profession just described above clearly antedates
1960. As already stated, the first Nigerian qualified in and returned from the
United Kingdom in 1828, since when, and probably before which time, lawyers
have been returning in increasing numbers to Nigeria, Ghana and Sierra Leone.
Some account has been given about the profession in Ghana,6 Sudan, Kenya and
Tanzania; in Kenya, for instance, the London Conference noted that there were,
in 1960, over 300 local (expatriate) practitioners.7 Gai lamented the absence of
African lawyers in Kenya and Tanzania in the early 1960s in these words:

"The result was that there were no African lawyers in Kenya and Tanzania
until well into the 1960s, and even then there were only two in Tanzania and
five in Kenya. The exclusion of Africans from the legal profession had a
number of consequences for the role of the profession and the development
of the economy in the rural areas.,,8

Ghana would seem to have had 903 members of the legal profession at that time.9
Nigeria is estimated to have had about 5000 lawyers. This fact, as well as the
relatively longer established nature of the Nigerian legal profession, may explain
why a number of African countries during the 1960-1970 decade turned to
Nigeria for the provision of lawyers for government service. Thus a Chief Justice
to Uganda, another Chief Justice to Botswana, one or two Supreme Court Justices
to Kenya, Tanzania 10 and Malawi, some State counsel to Sierra Leone, and the
President of the Court of Appeal in Gambia, were all lent to these countries at
their request, often with substantial subsidies paid by the Nigerian Government.
Other Nigerian lawyers also served in some of these territories as law professors,
lecturers and research officers, especially in Zambia and Uganda. Indeed, this is
an outstanding achievement for Nigeria of technical assistance in inter-African
cooperation in the legal field.II
5. Elias, Charla and Sierra Leol/e: Developmellt of their Laws arId COIlst;tUt;OIlS,British Commonwealth

Series, No. 10, 1962, at pp. 140-146 and pp. 281-283.
6. See Lawyers ;1/ the Th;rd World: Comparat;u a/ld Developmelltal Perspectives. edited by Dias,

Luckman, Lynch and Paul, Scandinavian Institute of African Studies, Uppsala, 1981, Chaps. 4-9.
7. See FUlIIre of Law ;1/ Afn'ca, supra 1/.2 , at p. 48.
8. See Lawyers ;1/ the Third World, supra /1.6, at p. 149.
9. Ib;d., at p. 128.

10. There were at the time of the Nigerian Civil War some 29 other Nigerian lawyers on the Bench in
Tanzania and in other legal posts. They were, of course, all withdrawn from Tanzania when the laner
recognized the secessionist Biafra.
11. The present writer was Federal Anorney-General and Minister of Justice from October 1960 to
February 1972 and it was to him that all these requests from other governments in Africa for lawyers
and judges were addressed, since most of the government legal functionaries had been known to him in
the United Kingdom and elsewhere.

54



ORGANISATION AND DEVELOPMENT OF THE LEGAL PROFESSION IN AFRICA

On the basis of the new reorganization of the legal profession, and the advance
made since then, the legal profession in Africa has been considerably enlarged. 12
Their role at independence cannot, therefore, be underestimated, if only in
creating the climate of opinion conducive to the reception of the new constitutional
ideas regarding the Rule of Law and democracy in Africa. Most, if not all, the
independence constitutions have contained conspicuous chapters on Fundamental
Human Rights, borrowed largely from the United Nations Universal Declaration
of Human Rights of 1948.

A careful study of most of the independence constitutions in Africa reveals that
there are fourteen heads selected for the fundamental human rights that should be
protected. These are:

1. The right to life of the individual against any arbitrary deprivation of it;
2. Freedom from inhuman treatment, that is, from any form of bodily or mental

torture, whether in the extraction of confessions from an accused person or from a
witness in a judicial proceeding or in any other circumstance of domestic life;

3. Freedom from slavery or forced labour, that is, any form of human bondage,
including customary practices of pawn or pledge of persons for debt;

4. The right to personal liberty, which, although this will be found in many of
the countries' domestic laws, is especially enshrined for additional guarantee;

5. Rights concerning civil and criminal law, particularly from the point of view of
establishing principles and practices for the fair and impartial administration of
justice in open court;

6. The right to private and family life, that is, the right to respect for his private
and family life, his home and correspondence;

7. Rights concerning religion;
8. The right to freedom of expression in its various forms;
9. Freedom of peaceful assembly and association;
10. Freedom of movement and residence, especially the right to leave and

return to one's own country and to reside wherever a person likes within that
country, including the right to a passport and similar facilities;

11. The right to compensation for the compulsory acquisition of private
property by a government or a government agency;

12. The enjoyment of fundamental rights without discrimination and freedom
from discriminatory legislation, whether on the ground of ethnic differences or on
any other ground, based on differences of race, sex and similar grounds;

13. Derogation from fundamental rights, especially for reasons connected with
the event of war or on the declaration of a state of emergency or when democratic
institutions are threatened by subversion in any part of the country;

14. The clearly restricted power of the central government for the safeguard and
protection of the country as a whole.13

12. One estimate is that th~re may probably now be about 11,000-12,000 members of the legal
profession in black Africa.
13. Elias, Nigeria: Development of its Laws and Constitutio,l, supra n.4, at pp. 143-162.

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THE DENNING LAW JOURNAL

Equally important are the provisions of the constitution making elaborate
arrangements for the Police Force to ensure the orderly conduct of public and
private affairs in accordance with the provisions of fundamental human rights,
especially those relating to the right to life and the personal liberty of the subject;
for example, that no one should be detained or have his movements restricted for
more than 24 hours before being formally charged before a court oflaw. There is
also the reorganization of certain sections of the judiciary so as to ensure the
appointment, dismissal and disciplinary control of judges of the superior courts of
law and those of customary and local courts throughout the country, including the
necessity for ensuring the independence of the judiciary from political and
executive interference of any kind. Another very significant provision under the
fundamental human rights is the inclusion of specific arrangements for the
creation of a common citizenship throughout the country, since this is to promote
uniformity of treatment of the various ethn.ic groups to be found in almost every
African country; this phenomenon underlies many of the problems of selection of
members of the various legislative houses or bodies and the appointment of most
political and executive officers as public functionaries. Also important is the
portion of every constitution providing for future amendments.

Since the importance of democratic government is the eternal aspiration after
the ideal of social justice for all members of the community, the entrenchment of
the fundamental human rights and freedoms is a sine qua non for ensuring the
success of independence. This is why all these newly independent countries in
Africa have done so, in addition to whatever provisions they already had in their
laws guaranteeing some of these rights. This is desirable, not only in multi-racial
countries, but also in multi-lingual and polyethnic communities. Africa is full of
these. Of course, the mere entrenchment of provisions of fundamental human
rights in a constitution does not, in itself, guarantee that they will necessarily be
enforced after independence, but, since, once entrenched, they are not easy to
amend or remove, they at least constitute a warning and a challenge to those who
might later want to set the law at naught. These provisions may also be seen as one
of the most suggestive means of political education in the subtle and civilized ways
of democracy, not only for the new leaders, but also for the people at large.

The legal profession in action
If, as we have accepted, the legal profession dates back to the 1820s, it is
permissible to refer to a few incidents which occurred in the closing years of the
19th century. No attempt will be made to catalogue all the events, but mention will
be made of a few to illustrate the activities of members of the legal profession,
mainly in West Africa.14

14. Since there were no African members of the 300 or more lawyers at the London Conference on the
Future of Law in Africa, the Conference noted that the advancement of Africans in the legal profession
in East Africa had had to be long delayed for fear that the East African lawyers would follow the
example of their West African predecessors. See PI/lure of Law ill Africa, supra n.2, at pp. 49-51; see
also, Lawyers ill Ihe Third World, supra n.6, at pp. 148-149.

56



ORGANISATION AND DEVELOPMENT OF THE LEGAL PROFESSION IN AFRICA

In 1897, the Government of the then Gold Coast introduced into the legislative
council a Public Lands Bill in order "to regulate the administration of public land"
in the colony. This was taken by the public as an attempt by the Crown to
expropriate their land, and a delegation of the Gold Coast Aborigines Rights
Protection Society (later re-christened West African Aborigines Rights Society), a
political movement consisting of Chiefs and educated Africans, under the
leadership of John Mensah Sarbah, the first Gold Coast African lawyer, went to
London to interview Joseph Chamberlain, in order to protest against the passing of
the Bill. The Government appeared to be intent on passing this Bill so as to check
the activities of certain European concessionaries and African traditional chiefs,
some of whom were keeping for themselves the royalties accruing from gold
mining. As a result of the visit of this delegation the Bill was withdrawn by the
Government of the day in the colony.15

The Society became accepted as a body which the local British Administration
made a practice of consulting on all important measures before they were adopted
and passed into law in the Council. This practice of consulting that body was
maintained by the British Administration till 1925 when the official majority was
replaced by that of the unofficial African members in the Council.

So important is the subject of land to Africans everywhere that this episode led
to a West African delegation of lawyers and other political leaders in Nigeria,
Sierra Leone and Gambia holding a conference with their Gold Coast
counterparts to consider the issue, under the title of what is known as the West
African Land Question. The claim was that the Government's attempt to vest all
unoccupied land in the Gold Coast colony in the Crown was a thin edge of the
wedge which would soon be driven into other West African territories. This was
regarded as likely to amount to a complete expropriation of their indigenous
owners and that of Ashanti and Kumasi, leading to the acquisition of Lagos land
and other territories in West Africa. The Conference also emphasized that their
reason for political agitation was to pre-empt a possible European settlement being
established in West Africa as had happened in East Africa. Around that time there
was afloat a proposal by Lord Leverhume to acquire certain plantations in West
Africa. In view of the opposition the whole idea was dropped.16

Sierra Leone would seem to have been a strong headquarters for the location
and practice by African lawyers during the first half of the 19th century. One or
two examples may be given. A Mr Robert Dougan, barrister, of mixed descent,
described as a mulatto, arrived in Freetown in 1831, served as Proctor to the
Mixed Commission Court, Queen's Advocate and Acting Governor on two
occasions and died in 1871. There was also John Carr, a West Indian of African
descent, who was Queen's Advocate and Chief Justice of the Colony of Sierra

15. See Caseley-I-Iayford, The Truth about the West Africa/1 La/1d Q}/CStio/1 (1898); and also Lord Hailey,
All Africa/1 Survry (1957), at p. 520.
16. Elias, Gha/1a a/1d Sierra Leo/1e, supra n.5, at pp. 30 and 49; Lord I-hiley, All Afn'ctm Surve)', ibid., at
p.732.

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THE DENNING LAW JOURNAL

Leone from 1840 till 1867, during which period he acted as Governor on several
occasions and retired in 1867; he later died in London in 1880.17

There would seem to have been in the Colony a sizeable proportion of
practising lawyers in the last half of the 19th century. The Sierra Leone Bar
Association must be one of the oldest in West Africa, since it has been recorded
that it addressed a letter of protest on behalf of the Colony in 1899 to the Secretary
of State for the Colonies in London on the then burning question of the Mende
Revolt of that period. IS

It is little wonder then that when independence came to Sierra Leone, on April
27, 1961, it became one of the active centres of agitation by its Bar Association
against what was considered to be high-handed government. Thus when the new
Constitution of Sierra Leone was introduced in June 1978, and passed rapidly
through Parliament without the committee stage or public comment, creating a
one-party State,19 giving the President wide powers for declaring a state of
emergency, the Bar Association rose in revolt. The Constitution gave the
President power to take any measures he deemed necessary regardless of lack of
conformity with the existing laws. The courts were given jurisdiction under the
Constitution to review emergency measures to determine whether such measures
were "reasonably justifiable" for the purpose of dealing with the situation which
existed immediately before or during a state of emergency. The lawyers felt
particularly affronted by the provision which weakened the tenure of judges in
Section 115(1a), which provided that "judges of the Supreme Courts ofJudicature
may be required by the President to retire at any time after attaining the age of 55
years." This was contrary to Section 115(1c), which required mandatory
retirement of judges only at the age of 65. Thus the power given to the President
to retire judges at an earlier age was declared unconstitutional and claimed to be
invalid by the Bar Assocation, which no doubt recognized the right to remove
incompetent judges under Section 115(3) only after due process of law. Such was
the strong opposition of the Sierra Leone Bar that, while reluctantly putting up
with the one-party State system, it finally succeeded in having the Constitution
amended.2o This whole episode is only one of several which the Sierra Leone Bar
has fought and won.

It is to be noted that Sierra Leone was not alone in experiencing bouts of
declarations of emergency since independence, especially following coups d'etat.
Nigeria, Ghana, Uganda and other countries have had their own trying
experiences.21 The prevalence of this phenomenon in nearly all parts of the Third
17. Elias, Ghalla alld Sierra Leolle, ibid., at p. 256.
18. See Crooks, The Colollial Poliry of Lord JollII Russell's Admillistratioll (1843), Vol. 2, at pp. 344-345,
cited in Elias, Ghalla alld Sierra Leolle, at p. 283.
19. For a detailed study of the constitutional problem relating to Human Rights in a one-party State, in
Tanzania and Zambia, see the Records of an IrJlemaliollal Semillar orl Humall Rights, their Protectioll arid
the Rule of Law ill a Olle-Party State, convened by the International Commission of Jurists, Search Press
Ltd., London, September 1976.
20. ClJL Bulletill, No.4, pp. 20-21.
21. See Elias, Africa alld the Developmerlt of lll/ematiorial Law (1972), Ch. 6 on the legality of illegal
regimes in Africa.

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ORGANISATION AND DEVELOPMENT OF THE LEGAL PROFESSION IN AFRICA

World has provoked the interesting study: States of Emergency: Their Impact on
Human Rights.22 A somewhat comprehensive review of Preventive Detention laws
and practices in Australia, Burma, Eastern Europe, India, Japan, Philippines,
Singapore and the Soviet Union will be found in an earlier study of the
Commission in 1961. 23

Another significant example of a Bar Association challenging executive excesses
may be cited from the Sudan. The Constitution of Sudan contained in Section 62
these words: "Advocates shall defend the constitutional rights of the citizens and
shall adhere to the ethics of the profession in accordance with law." The Sudan
Bar Association interpreted this provision as prescribing not only a duty incumbent
upon the lawyer as an individual, but also as imposing a duty upon the Bar
Association actively to defend the rights and liberties of the citizens as a whole.
The Association accordingly petitioned the government in 1977 for the repeal of
certain laws restricting the constitutional rights of the Sudanese people and of the
independence of the judiciary. The Association sent memoranda to the President
of the Republic in 1977 and 1978, stating the position of the Bar in the matter and
also in 1979 sent a similar memorandum to the Attorney-General requesting him
to propose to the People's Assembly a Bill repealing the laws in question. The
President of the Bar personally sought audience of the President of the Republic
and was assured that the proposal of the Bar would be given careful consideration.
The proposal, as adopted by the President, was referred to a high-ranking advisory
commission, but no Bill was submitted to the legislature on the subject. Because of
this failure of the government to move in respect of the Permanent Constitution of
Sudan (Amendment) Act 1975, which the People's Assembly adopted on 16
September 1975, some days after an abortive military coup, Article 41 of the
Constitution which guaranteed freedom of movement, and Article 66 which
prohibited arrest without warrant while at the same time guaranteeing prompt
access to a court after arrest, were both amended by the addition of clauses
permitting the legislature to create a system of preventive detention and providing
for assignment of residence. The amendment also empowered the legislature to
create special procedures for notifYing a person detained or assigned to residence
of the reasons for such an order or the manner in which he should receive a
hearing, but the Act specified that such a procedure should be followed only
"when possible." At the time of the bringing into force of this Act, in 1975, there
was in existence already a system of preventive detention under the State Security
Act of 1973. The amendment now being complained of was regarded by the Bar
Association as designed to eliminate the possibility that the Supreme Court would
declare unconstitutional this provision of the Act which the Bar Association was
already challenging. There were t\vo main grounds prompting the Bar Association
to oppose the Act: Articles 81 and 82 of the Constitution which defined the
President's duty towards the nation were amended by the addition of a new clause

22. Published by the International Commission of Jurists, 1983, 480 pages.
23. See JOllmal of/he III/ema/iollaICommissiollofJllris/s, Vol. III (1961), at pp. 27-150.

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permitting him to make decisions having the force of law. This was considered by
the Bar Association as being inconsistent with Article 118 of the Constitution
which gave the President power to act only jointly with the legislature and not to
the President alone. The second ground was that Chapter 2 of Part VIII of the
Constitution had been amended to permit the creation of one or more courts of
State Security before then; the only exception to the judiciary's exclusive exercise
of the judicial function was the existence of Courts Martial. This was looked upon
as being inconsistent with the rights of every citizen to be tried in normal courts
applying normal law and normal procedure. Also opposed by the Bar Association
was Article 131 of the Code of Criminal Procedure which regulated the
President's power to create special courts for crimes against the security of the
State. The Presidential power of detention and prosecution before special courts
was widely employed in the wake of attempted coups in September 1975 and July
1976. Several persons, up to 150, were implicated in the coups and brought before
State Security courts and, according to Amnesty International, approximately 100
of them were executed. In view of the strong opposition of the Bar Association the
State Security courts fell into disuse by the middle of 1977 and about 1000
detainees were amnestied by 1978. There was, however, a resumption of these
practices by the government as a result of the increase in the practice of
communists or trade unionists involved in agitation over economic issues and
Baathists opposed to the government's moderate position on the Middle East
question. This would seem to illustrate the danger that exceptional powers
properly adopted in emergency situations, if left in existence after the end of the
original emergency, might eventually be used for purposes different from those for
which they were originally adopted.

The Bar Association also sought the abolition of the Exercise of Political Rights
Act 1974, which was judged to be incompatible with the Constitution and the
principle of the equality of citizens. In Paragraph 5 of the Act the Sudanese
Socialist Union was empowered, as the sole authorised political party, to deprive a
person of his political rights, including the right to be a candidate, the right to
belong to constitutional organisations, as well as the right to vote. Such
deprivations could be imposed for reasons ranging from conviction of certain
crimes to formation of factions within the Sudanese Socialist Union or to
"lukewarmness" towards the interest of the State. Although candidacy for
government posts is not restricted to party members, yet this provision gave the
party, the only party, an effective power to veto other candidates. The fact that the
individual's constitutionally recognized rights could be withdrawn, with no right of
judicial review, was particularly disturbing. The third measure against which the
Bar Association protested was the State Security Amendment Act 1976, which
enabled the Attorney-General to attach all property, movable and immovable, of
persons charged with offences under the Act. An amendment of 1979 extended
the power of attachment to all officials charged with committing crimes in their
official capacity. While provisional seizure of assets might well be justified in cases

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ORGANISATION AND DEVELOPMENT OF THE LEGAL PROFESSION IN AFRICA

where corruption or misappropriation of public funds was suspected, the adoption
of this measure to a large category of persons still presumed innocent could cause
serious hardship and injustice.24

The rights and duties of lawyers thus recognized by the Sudanese Constitution
to protect the fundamental rights of citizens was a landmark in African
constitutional law, reflecting a principle which is only recently being recognized at
the internationallevel.25 It is considered that the Government of Sudan of that
period should be congratulated for respecting these rights, recognizing the duties
of lawyers in this regard.26

It may be noted in parenthesis that Ghana was probably the first independent
African country, apart from Ethiopia and Liberia, to enact a Preventive Detention
Act in 1958. It provided for the detention of Ghana citizens for actions considered
prejudicial to the defence of the State or to relations with other countries or to the
security of Ghana. Under it, persons could be detained for periods of up to five
years without trial by an Order of the Governor-General. The Act was designed to
discourage subversive activities, whether of individuals or of tribal and other
groups. It clearly made a valid detention order not liable to challenge by a writ of
habeas corpus in any court oflaw. Two opposition Members of Parliament brought
a writ to the Ghana Supreme Court which in its Divisional Court at Accra
dismissed their application holding, (i) that it would not accept the applicants'
argument that the Act as applied by the executive was primitive and (ii) that,
although the grounds for the detention would ordinarily be matters regulated by
the Criminal Code, there was no legal bar to the Governor-General's exercise of
his power under the Act. 27

The International Commission of Jurists and the Centre for the
Independence of Judges and Lawyers
The African legal profession, like its counterparts in most of the other parts of the
world, has certainly gained, and is still profiting from, the two institutions: the
International Commission of Jurists and its affiliate, the Centre for the
Independence of Judges and Lawyers, both based in Geneva. The Commission
exists for the promotion of the Rule of Law and the ensuring of the establishment
and continuance of democratic government all over the world. It operates through
the holding of conferences, seminars and colloquia designed for the study and
protection of the rules and practices of democratic institutions on a world-wide
basis. Thus it established its first contact with Africa by means of an African

24. That this was in every way contradictory to the maintenance of democracy was pointed out in the
International Commission of Jurists pamphlet entitled "Human Rights in a One-Party State", supra
n.I9, at pp. 109- I24.
25. See the recent Resolution of the UN Sub-Commission on the Prevention of Discrimination and
Protection of Minorities, 1980, at p., 37.
26. GIlL Bulletin, No.6, at pp. 28-31.
27. See Elias, Ghana and Sierra Leone, supra n.5, at pp. 80-81.

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conference on the Rule of Law, in Lagos, in January 1961, consisting of 194
judges, practising lawyers and teachers of law from 23 African nations, as well as
nine countries of other continents. It reached conclusions regarding (a) Human
Rights in relation to government security, (b) Human Rights in relation to aspects
of criminal and administrative law, and (c) the responsibility of the Judiciary and of
the Bar for the protection of the rights of the individual in society. The Conference
also adopted a Declaration inviting the African governments to study the
possibility of adopting an African Convention of Human Rights that would protect
individuals aggrieved by a violation of public or private law and enable them to
seek redress before an international tribunal of appropriate jurisdiction. It ended
with the adoption of what was christened "The Law of Lagos", the gravamen of
which is a commitment of all the governments of the countries from which the
participants came to constitutional propriety in government and the avoidance of
tyranny everywhere, including the requirement that lawyers and judges should
always be made the cornerstone of civilized governmental behaviour.28

Because of the subjection of judges and lawyers increasingly to all forms of
harassment, victimization, arrests, imprisonment and even assassination, by reason
of carrying out their profession with the courage and independence that the
profession demands, the International Commission of Jurists established, in
January 1978, at its headquarters in Geneva, a Centre for the Independence of
Judges and Lawyers, following the decision on this subject taken at its 25th
anniversary meeting in Vienna in April 1977. Among the main objectives of the
Centre are the collection of reliable information from as many countries as
possible aboutthe legal guarantee for the independence of the legal profession and
the judiciary, any inroads which have been made into their independence and
particulars of cases of harassment, repression or victimization of individual judges
and lawyers. Such information is distributed to judges and lawyers and their
organizations throughout the world; such organizations are to cooperate in this
project by supplying information about erosion of the independence oflawyers and
judges in their own or in other countries or by taking action in appropriate cases
brought to their attention. Individual lawyers, as well as their organizations, willing
in principle to participate, should address communications to the Centre to that
effect, on the payment of nominal fees, so that the Centre may bring the
subject-matter of the information to the attention of the world legal community.

Attention may be drawn to one or two instances in which the Centre has acted.
For instance, a Mr Arthur Pickering, aged 30 years, who was the first non-white
person to be admitted to the Windhoek Bar, was a legal adviser to the legally
constituted internal wing of SWAPO. He was arrested together with a number of
SW APO officials on 27 April 1979 on the sole ground of his connection with
SWAPO as a lawyer. He was previously detained under the Terrorism Act in

28. See JOl4mal of the IntematiOlla1 CommissiOll ofJuris/s, Vol. III (1961), at pp. 3-28; this publication is
worth serious re-reading.

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ORGANISATION AND DEVELOPMENT OF THE LEGAL PROFESSION IN AFRICA

January 1979, when the security authorities were investigating a bomb explosion in
Swakopmund, but was released after ten days without charge; he was rearrested
under a Proclamation which gave the Administrator-General of Namibia wide
powers to detain persons suspected of engaging in subversive activities of a violent
nature. The Administrator-General was given powers under the Proclamation to
determine the period of detention and conditions of release of detainees. The
Proclamation provided for a committee to review detention orders, but the
Administrator-General was not bound by its recommendations. The Centre for
the Independence of Judges and Lawyers, on the matter being brought to its
attention, wrote to the Administrator-General expressing its concern and pointing
out that independence of the legal profession is essential to the proper
administration of justice and that the detention of a lawyer without charge strikes
at the very basis of this independence. Mr Pickering was eventually released from
imprisonment and allowed to continue his legal advising to the legally constituted
local branch of SWAPO.29

Another instance of the successful intervention of the Centre was in connection
with Mr John M. Khaminwa, a prominent and well-respected lawyer in Kenya,
who was arrested on 3 June 1982 by officers of the Central Investigation
Department. A member of the Kenyan Law Association and an advocate of the
High Court of Kenya, of the High Court of Uganda and of the High Court of
Tanzania, Khaminwa was held under the provisions of the Preservation of Public
Security Regulations, and was not charged with any specific offence. The
information reached the Centre from several sources, saying that Mr Khaminwa
had never affiliated himself with any political organization and that he was a very
good lawyer with a commitment to the Rule of Law, which made him willing to
handle cases which others were unwilling to undertake. The belief was widespread
that Mr Khaminwa's arrest was motivated by his representation of persons who
were critical of the Government and who had private claims against government
officials; he also represented the wives of several government officials during their
divorce actions in court. At the time of his arrest Mr Khaminwa was involved in
two cases which had received widespread publicity. He was representing George
Anyona, who had been arrested shortly after he had publicly defended the
formation of a second political party in Kenya. Mr Khaminwa attempted Mr
Anyona's release by filing a writ of habeus corpus, but was unsuccessful.3o The
other case involved a German business man with a civil claim against the
Attorney-General of Kenya, Joseph Kamere, who had impounded an automobile
and equipment owned by the German business man. Mr Khaminwa obtained a
court order directing Mr Kamere to return the automobile and the equipment. Mr
Khaminwa's arrest was a serious threat to the independence of the legal profession
in Kenya which was highlighted in the local daily of July 20, 1982. It is clear that

29. CIJL Bul/elill, No.4, at p. 18.
30. CIJL Bul/elill. No.4, at p. 18.

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the Rule of Law is not furthered when lawyers who have represented unpopular
clients or causes are arrested and detained without charge or trial. 31 Mr
Khaminwa was detained from June 3, 1982 till October 12, 1983 when he was
eventually released.32

The African Bar Association
The African Bar Association is a federation of national Bar Associations from
English-speaking Commonwealth countries of the continent. At its third Biennial
Conference in 1978 it adopted the Freetown Declaration, undertaking as its main
commitment the promotion of human rights in Africa and emphasizing in
particular the right of the individual to access to the courts and the observance of
due process of law as well as the need to oppose laws restricting or ousting the
jurisdiction of the courts and penal laws having restrictive effect. At its fourth
Biennial Conference, held in Nairobi from 27 July to 1 August 1980, were present
delegates from twelve nations: Botswana, Gambia, Ghana, Kenya, Lesotho,
Malawi, Nigeria, Sierra Leone, Tanzania, Uganda, Zambia and Zimbabwe. The
theme of the Conference was "Law and Democracy in Africa", under the
headings: "Courts and Democracy", "Democratic Process in Africa", "Human
Rights and a Written Constitution", "Human Rights of African Women" and
"Human Rights and Human Development in Africa". At this Conference also the
outgoing Secretary-General, Mr Amok Wako of Kenya, gave an account of the
Association's efforts to promote human rights since the adoption of the Freetown
Declaration of 1978. The African Bar Association participated in several
preliminary meetings, one sponsored by the United Nations and the other by the
Organization of African Unity, for the purpose of drawing up an original human
rights instrument and a mechanism for implementing it. The outcome was the
adoption of the African Charter on Human and People's Rights by the
Organization of African Unity Assembly of Heads of States in Nairobi in July
1981. Moreover, the African Bar Association played an important role in the
creation of the Inter-African Union of Lawyers which is a professional
organization encompassing the entire continent. Another important aspect of the
Association's activity was its intervention with the Governments of Ghana,
Swaziland, Tanzania, Uganda and Zambia, regarding possible human rights'
violations, resulting in at least two cases where detained lawyers were released
from prison. This fourth Biennial Conference by the Association ended with the
adoption of several resolutions concerning human rights, including one
recommending the adoption of constitutional provisions limiting the term of office
of the President or Chief Executive of a country, another recommending greater
involvement of women in decision-making and yet another calling upon member
Bar Associations to work towards the ratification of the African Charter of Human

31. C!JL Bullelill, No. 10, at pp. 5-7.
32. q7L Bulle/ill, No. 12, at p. 4.

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ORGANISATION AND DEVELOPMENT OF THE LEGAL PROFESSION IN AFRICA

and People's Rights and urging governments to ensure that "development policies
are truly designed to enhance the advancement of rights for the people of that
country." It is interesting to record here the text of a resolution on the judiciary:

"The position of the judiciary in the realization of human and democratic
rights is of central importance. The judiciary because of its insecurity has not
satisfactorily played its leading role in the development of the democratic
process. The method of appointing judges and other judicial officers is
identified as one of the factors leading to the present judicial attitude. The
Conference consequently resolves:

1. That the judiciary in each member country be more assertive, innovative
and bold on fundamental rights issues and that the legal profession in each
member country must be represented in each judiciary service commission
and should play an active role in the appointments of judges;

2. That the appointing of judges on contract derogates from and strikes at
the very core of democratic process and judicial independence. Judges must
therefore normally be appointed on a permanent basis and their security of
tenure constitutionally agreed."

The Association also established an ABA Human Rights Committee to have
constituent meetings in each member country. Its main function is to "educate the
public on their fundamental and human rights and to supervise and monitor the
enforcing and breaches of human rights in member countries." 33

Another conference of great interest to the African legal profession was the
World Conference on the Independence of Justice, held in Montreal, Canada,
from 5 to 10June, 1983 and attended by delegates from five continents and over
20 international organizations and professional bodies, including international
courts. The Conference was organized by the former Chief Justice of the Superior
Court of Quebec, Jules Deschenes. It ended by adopting the Universal
Declaration on the Independence of Justice, which was later submitted to the
United Nations Sub-Committee on Prevention of Discrimination and Protection
of Minorities. The five commissions into which the Conference was divided
consisted of international judges, national judges, lawyers, jurors and assessors, as
well as the representatives of the International Commission of Jurists and the
Centre for the Independence of Judges and Lawyers.34

Finally, mention must be made of the 19th Biennial Conference of the
International Bar Association, held in New Delhi from 17 to 23 October, 1982,
when the two main topics of the Conference were: "The Eighties - The Challenge
to the Legal Profession and the Judiciary" and "Legal Problems of Investment by
International Companies in Developing Countries".

33. CIJL Bullelill, No.8, at pp. 15-17. See also, ClJL Bullelill, No.7, at p. 27, dealing with the Geneva
meeting on the Independence of Lawyers which was attended by some 11 international organizations,
including the Inter-African Union of Lawyers, on 13 Mareh 1981.
34. ClJL Bulletin, No. 12, at pp. ]3 and 27-57.

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Two separate plenary sessions were devoted respectively to the judiciary and to
the legal profession.

At that Conference the International Bar Association's Project on Minimum
Standards ofJudicial Independence successfully completed its task. The standards
were adopted and were to be known as the Delhi Minimum Standards of Judicial
Independence. The project had been undertaken by the Administration of Justice
Committee of the General Practice Section of the International Bar Association.
Dr L. M. Singhvi, UN Special Rapporteur on the Independence of Judges,
Lawyers, Jurors and Assessors, in his valedictory remarks, congratulated the
International Bar Association on its adoption of the standards and noted the
contributions these standards would make to the reaching of a worldwide
consensus. The International Bar Association's project plans to undertake the
preparation of a report on compliance with the minimum standards of the judiciary
in various countries. The minimum standards of judicial independence consisted
of 56 detailed provisions35 which should serve the African Bar Association
particularly well as a useful vademecum for its future work.

35. CIJL Bulle/in, No. 11, at pp. 22-23.

66