Following allegations by the Minister of Justice that half the lawyers in the country evade taxes, the president of the Kigali Bar Association has said the minister was given the wrong information and that lawyers should have been treated as other taxpayers, and not collectively accused.
In an exclusive interview with The New Times, Athanase Rutabingwa said every lawyer, like any other taxpayer, has a Tax Identification Number (TIN) as an individual, adding that the allegation was unfair and damaging to their reputation.
The Kigali Bar Association has said Rwandan lawyers will have a competitive edge over the rest in the region because of their French background. In an interview with The New Times’ Felly Kimenyi, the president of the Kigali Bar Association, Athanase Rutabingwa said the lawyers have embarked on trainings on Common Law system, which will further enhance their capacity. The interview also touched on issues of pro bono services, accusations that most lawyers evade taxes among others. Below are the excerpts.
Where is the Kigali Bar Association coming from, where is it and what are the projections?
First of all, the Kigali Bar Association is arguably the youngest among those in the region having started just in 1997 by an Act of Parliament. Before then, there were instances where the Minister for Justice would appoint people to take up cases on individual basis, and these lawyers were called ‘mandataire a justice’.
As part of the reforms that have been ongoing, in the aftermath of the Genocide against the Tutsi, we started with only 37 members in 1997. Membership has now grown to 879.
At the moment, the requirement to join the bar is at least a law degree but at the time the bar was created in 1997, for emergency reasons, we had both qualified lawyers and another group which was also established by law – the judicial defenders. The second group are not trained lawyers.
The emergence of this second group was inspired by the crisis the country faced in the aftermath of the Genocide, where the industry was very under staffed, with most lawyers killed while others had participated in the killings and had fled the country.
This was happening despite the thousands of suspects who were in custody who needed legal representation. It was the same predicament that prosecution and the judges faced.
Currently, with the new law on the bar in the making, judicial defenders will be phased out.
The activities of the bar, as part of our mandate, is to make sure that the rights of lawyers are respected. Another activity that is equally important is to work with other institutions in the country to safeguard and ensure the development of law and the system of jurisprudence in the country.
We are also entrusted with the duty to ensure continued legal education by our lawyers by facilitating them to attend trainings within and outside the country, to make sure they keep up with the dynamic trends of the laws either domestically, and internationally.
Why do you call yourselves as Kigali and not Rwanda Bar Association?
When you look at the law that we have in place that instituted the bar, when you look at some of the articles, it shows that if you are about eight lawyers, in any other province of the country, you can put a bar association there. The initial association we had in place, was the Kigali Bar Association.
This implied that you can be in Musanze and apply to be licensed as a bar association there, provided you are eight lawyers and more. However, there has not been any other bar association besides the Kigali Bar and all lawyers prefer to associate with it.
However, we are trying to address that in the draft law that was recently passed by Parliament; we want to have a Rwanda Bar Association.
What is the take of your association and practitioners in particular on the law establishing the bar association?
It is still a draft and has been in Parliament for some years. We initiated it as a result of the judicial reforms that have been going on in the country since 2004. The Ministry of Justice initiated the law, then forwarded it to us for our input, but it has take n a number of years between the ministry and Parliament. As of now, I think in July, the Parliament passed it and it should now be in the process of promulgation.
The law is trying to address the issues we have had. The law we have in force is not bad in as regards the cardinal principles of protection of legal profession in the country, but it was not in conformity with the current trend of the industry.
So we feel that when it is passed, the law will facilitate us in many things. For one, there are innovations that we think are going to be facilitated by the new legislation; like the fact that we are going to have one nationwide bar association; it also facilitates the issue of regional integration where the new law is compatible with laws governing the bars in other countries in the region.
Other incentives that will come with the new law include allowing lawyers to perform the duties of a public notary which our lawyers were prohibited from doing. Another important component in the law is on issues to do with partnership to form a law firm.
We did not have in our old law, a provision where a firm could have legal personality that is independent from the liability of the partners of this firm. This law will address this as well.
On the issue of partnership, what are the expectations from the streamlined process?
Basically it will look like an ordinary limited liability company, where the liabilities of the company are limited to the company itself and this creates confidence within the clients where you know that you are not bringing your file to an individual who may the other day be suspended from practice, is sick or deceased.
We are looking at a scenario where experienced lawyers will come under one roof as a firm and this not only benefits them to work as a group, with the cost effectiveness that comes with it, at the same time it is advantageous to the clients because they will be dealing with firms, not individuals.
We have had issues such as lawyers dying and their clients coming to us, stuck with cases, that they had already paid for.
A few years ago, there were disagreements between the bar and the judicial defenders’ body. Have you addressed your differences?
The law we have today allows judicial defenders to practice but immediately the law is out, they will cease to practice. The draft of the law was given to them in 2005 and they were given a transition of two years to go back to school and get their law degrees. The people who were defenders then have since graduated but the problem is, the body has continued to admit more, meaning the issue will never end, if we continue like this.
In terms of pleading cases, we never had any issues with them because they are limited to lower courts, and cannot plead cases in the High Court or Supreme Court. But the problem we have with them concerns their reluctance to phase out and their resistance to change which is not good because the urgency that necessitated them is no longer there, and as practitioners, we would not want to have in the country untrained lawyers continuing to practice.
How do lawyers perceive the judicial reforms that have been ongoing since 2004?
The reforms came at the time when they were needed, especially the reforms in the composition and competences of courts. We have, for instance, seen the creation of commercial courts which have ushered in positive changes in Judiciary and eased doing business. As lawyers, the reforms have eased our work where you have a case and you are at least sure it will be concluded within a month or two. Expediting judicial dispensation is what we want for our clients and it is good for attracting investors.
Before you would go to court at 8a.m and by midday cases are not yet heard, only to be told then that it has been adjourned. Reforms have also minimised the unnecessary appeals in courts. We really commend what is happening.
The number of lawyers has increased, probably exceptionally, how would you rate the quality of practitioners?
This is an issue we have discussed at length, internally. I think ours has been the fastest growing bar in the region. Look at the number we have admitted over 17 years. Other law societies in the region have been in existence for over 50 years. For example in Burundi, they have only 130 members, and their bar association has been there since, I guess 1962.
Even in Uganda, they have just above 2,000 members and their bar has been in place for 60 or 70 years. So this has been very fast; our main key concern is the discipline of the lawyers, and qualifications, to make sure they are fully qualified, we only take up lawyers that come from recognised universities.
That said, just like any other profession in the country, they go to the same universities, and appear before the same lecturers. When you go on the country’s labour market, you do not look at lawyers alone, and just like any other developing country, there are professional gaps that need to be bridged and we do that through encouraging and arranging trainings to beef up their quality so that they serve the clients better.
Generally, the quality of lawyers we have today is good but not perfect and extra work is still needed. We encourage them to go for masters’ programmes and other post graduate courses. For instance, we are working with the Kigali International Arbitration Centre to have our lawyers get skills in arbitration because this is an emerging area of practice; we also work very closely with the Institute of Legal Practice and Development.
In most countries, lawyers are asked to go through the Law Development Centre or the equivalent to be able to sit for a bar exam, which is not the case in Rwanda....
That is true, partly because of the emergency that was in place at the time the current law was enacted. But it has been rectified in the new law, which will require one to have a diploma from the Institute of Legal Practice and Development.
And this will apply even to applicants for judgeship or those who want to become prosecutors. The institute is an equivalent of the law development centre.
How are Rwandan lawyers fairing in terms of competitiveness in the different blocs that the country is party to?
To start with, we are members of the East African Law Society, Commonwealth Lawyers’ Association and the Pan-African Lawyers’ Union among others; and we have several forums where we meet with lawyers from different countries and we have always shared experience.
Through these interactions, we find that we are actually competitive, and we have an advantage because Rwandan lawyers speak both French and English which I think will be our niche as we penetrate their market.
But besides that, we have focussed on enriching our lawyers with knowledge on the Common Law training and we are in partnership with Trademark East Africa to train our lawyers in this system and the legal language and pleading techniques in the common law system. The training starts this September.
Once they are trained, we will have another competitive edge over our counterparts in the region because our country uses the civil law system while these countries use the common law system. This implies that when our lawyers grasp the common law system, it will imply that where as they could comfortably plead in these countries, it is hard for the other lawyers to practice under our system.
We have local lawyers with accreditation by the ICC. Rwanda is not party to the court, explain this...
Curious enough, the legal profession is not guided by decisions made by politicians. Much as Rwanda has not ratified the Rome Statute which established the ICC, it does not prohibit Rwandan professionals to practice there, because actually most lawyers who practice from there, their countries have not assented to the statute. In that sense, some of our lawyers have applied and have been accredited.
Actually the only requirement to be able to apply is being a lawyer of good standing and with recommendation from the Bar, and an experience of about 10 years a sizeable number of our lawyers have actually been accredited but I am not in position to tell you the number at the moment.
I think it is in the best interest for our lawyers to get that international exposure. If you are accredited by the ICC you can plead cases before other international courts, and we already have
Let us talk about pro bono services by our lawyers. People say these services are still inadequate and much concentrated in Kigali...
I would say these allegations are not true. As I said earlier, we are duty bound to offer free legal services to all Rwandans who cannot afford the charges. Of course we do not have the funds to facilitate a lawyer to move from Kigali to go and appear in a court in Rusizi but what we are doing is, trying to ensure that our lawyers are spread across the country. Actually it does not make business sense when we are all concentrated in Kigali.
So with presence of our members in all corners of the country, we are trying to encourage them to take on pro bono cases that come up in their areas of operation and they are already doing that.
There may be some deficiencies especially in areas where we do not have many lawyers but I can say that about 60 per cent of the country is covered and we have not had any case reported to us that a lawyer on pro bono did not give good service.
Of course we take cases that come to us and not us going to people asking for people who need representation, but then even those that come to us, they have to have proof that they are indigent, through a letter issued by their respective sector authorities. To ease the burden on people seeking our services, we have opened a hotline which people can call and get orientation.
The Minister of Justice a few weeks ago accused lawyers of evading taxes...what do you have to say about it?
This is an issue we have raised with the Minister himself and our take is that he was not given the right information. We do not know of any scenario where the tax administration has come up to our offices claiming that Lawyer X has not met his or her tax obligations. We have not even had a formal or informal meeting where they raised any such issue.
We have actually engaged the Commissioner General of Rwanda Revenue Authority and he wanted to know the number of our lawyers so he can tell us who has evaded taxes. But even with this, I still think lawyers should be looked at as other taxpayers.
We have not had any formal complaint from the tax administration against any other profession, be it for architects, accountants, medical practitioners or even the ordinary businessmen, where such complaint is made collectively.
This was not something we are happy with, and taxpayers should be looked at as individuals because a tax identification number is given to individuals not professions. The accusation was just damaging our reputation for no reason.
As we conclude, what would you want to add that was not covered in the interview?
I want to talk about the discipline of the lawyers. We are committed to uphold the integrity of the profession, much our primary objective is to safeguard the practitioners’ rights, they should not get away with any kind of professional misconduct be it with their clients or any other players in the judiciary, be it prosecutors or the police.
Some people may not know that lawyers can actually be taken to court but this can be done. We encourage people to bring to our attention any kind of misconduct by a lawyer.