THE American Bar Association Centre for Human rights has asked the United Nations Special Rapporteur on the independence of Judges to urgently intervene the decision by the Zambian Judiciary to bar constitutional lawyer John Sangwa, State Counsel, from appearing before any court in the country.
In a letter, Centre director Michael Pates requested the United Nations to further urge the Zambian government to ensure lawyers are free from intimidation and retaliation, including arbitrary suspension and disciplinary measures.
“Dear Mr. Diego García-Sayán ,the Center is gravely concerned that the decision taken by the Zambian judiciary to bar Mr. Sangwa from appearing before all courts pending the resolution of the complaint of professional misconduct submitted to the Law Association of Zambia, is tantamount to a suspension without affording Mr. Sangwa his due process rights. The Center is further concerned that Mr. Sangwa’s suspension is in relation to his public criticism of the Constitution of Zambia (Amendment ) Bill [No. 10] 2019…where he raises several concerns including that the Bill gives the President unfettered powers. Under international law and in compliance with international standards governing the independence of the legal profession, lawyers may not be arbitrarily suspended from the practice of law nor experience retaliation for fulfilling their professional obligations or expressing their opinions without affording him the fundamental right to be heard, as recognized under regional and international standards,” Pates stated in his letter.
“The United Nations Basic Principles on the Role of Lawyers specifically states that ‘[n]o court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.’ The U.N Basic Principles further state that ‘charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice’. The ABA in its Model Rules for Lawyer Disciplinary Enforcement (ABA Model Rules) has similarly echoed international standards affording a lawyer who is subject to discipline for breaches of professional misconduct, the right to due process which includes fair notice of the charges, right to counsel, right to cross-examine witnesses, right to present arguments to the adjudicators, right of appeal; and right to subpoena and discovery.”
He stated that immediate suspension of lawyers should only be in exceptional cases.
“Immediate suspensions of lawyers from the bar should only be in exceptional cases, and, even then, the disciplinary body should make a reasonable attempt to provide the lawyer with notice. The Code of Professional Conduct for Counsel before the International Criminal Court has stated that, in exceptional cases, where the alleged misconduct is of such a nature as to seriously prejudice the interests of justice, the Commissioner may lodge an urgent motion with the Chamber before which the counsel is appearing, so that it may, as appropriate, declare a temporary suspension of such counsel,” Pates stated. “Likewise, the ABA’s Model Rules provide that only where alleged misconduct poses an immediate threat to the public or the administration of justice, may a lawyer be immediately suspended from the practice of law, pending a final determination of the ultimate discipline to be imposed. The Model Rules also provide that interim suspension may be appropriate when the lawyer’s continuing conduct is causing or is likely to cause serious injury to a client or the public. For example, where a lawyer abandons the practice of law or is engaged in an ongoing conversion of trust funds. Where immediate interim suspension is granted, the ABA Model Rules provides that on [two] days’ notice, a lawyer suspended in terms of an interim suspension, may appear and move for dissolution or modification of the order of suspension and the matter shall be heard and determined as expeditious as the ends of justice shall require.”
He stated that the barring of Sangwa, without notice or process was seemingly in retaliation for his public engagement in matters of grave public interest.
“Several civil society organisations in and outside Zambia have expressed concern over the arbitrary suspension of Mr. Sangwa in what is viewed as an effort to silence critical voices. Mr. Sangwa is on public record criticizing the appointment of constitutional court judges and the unsuitability of some members of the bench. In recent months, Mr. Sangwa has been a vocal critic of Bill 10 and has reportedly accused the Constitutional Court judges of ‘failing the nation by refusing to allow a petition to challenge Constitutional Amendment Bill 10’. The barring of Mr. Sangwa, without notice or process, is seemingly in retaliation for his public engagement in matters of grave public interest [and] has a deeply chilling effect not only on lawyers in Zambia but the citizens at large,” Pates stated. “It is generally recognized that public officials, by virtue of the positions they occupy, should have a higher degree of tolerance to criticism and even offensive language. Furthermore, the UN Basic Principles clearly state that lawyers, like other citizens, are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights…”
He stated that if LAZ proceeded to hear Sangwa, that should be done quickly.
“In light of the above, we request that you urgently intervene in the case of the barring of Mr. Sangwa, requesting that the bar be immediately lifted and urging the government of Zambia to ensure the rights of lawyers to be free from intimidation and retaliation, including arbitrary suspension and disciplinary measures. Should the Law Association of Zambia proceed to hear the complaint against Mr. Sangwa, this should be undertaken expeditiously, and he should be afforded his full due process rights including the determination of the matter before an impartial disciplinary body as recognized under international law standards,” stated Pates.