Posted 4 years ago in August
The position adopted by the Ministry of Justice (MoJ) regarding private legal practice by foreigners of Ethiopian origin goes against law, government policy and international practice. Enough has been written and said regarding the wrong interpretation and application of the law by one Ethiopian - American. We will not pick that issue again.
One remarkable truth is that MoJ has not given any satisfactory reply to the wrong interpretation and application of the law it has stuck to. For some time now, the only way the little justice bureaucrats show power and control is by saying “no". They have refused private legal practice to govern itself. They give exams to lawyers seeking private practice, register and license them. They can also take disciplinary action on them including revoking a license. Not only this. They are active polarizing figures in the legal profession and accusers of lawyers in private practice. One major thing they did is spit private lawyers in to associations without a chance of reconciliation and merger. In cooperation with the Charities and Societies Agency, they have blocked the creation of a genuine bar association in the country. Furthermore, they grossly exaggerate the number of complaints lodged against private lawyers by clients and release it to the media before investigating and knowing the truth. Over all, they are obstacle to the advancement of the legal profession and private practice in the country.
This is simply to add our voice by invoking globalization of law and private practice. Ethiopia cannot be an island from globalization of law that has engulfed the world enabling private lawyers and law firms to work across countries and continents. That was the case for the Asia-Pacific region during the past two decades and its Africa’s turn now. We can’t tell investors that their capital is welcome and not their lawyers.
A short note which succinctly summarize the global trend says the following:
“Law has traditionally been the province of the nation state, whose courts and police enforce legal rules. .. But globalization is changing the contours of law and creating new global legal institutions and norms. .. Business law is globalizing fastest of all, as nations agree to standard regulations, rules and legal practices. Diplomats and jurists are creating international rules for bankruptcy, intellectual property, banking procedures and many other areas of corporate law. In response to this internationalization, and in order to serve giant, transnational companies, law firms are globalizing their practice. The biggest firms are merging across borders, creating mega practices with several thousand professionals in dozens of countries.
In response to the globalization of business law and in order to serve giant, transnational companies, law firms are globalizing their practice. The biggest firms are merging across borders, creating mega practices with several thousand professionals in dozens of countries.”
The Ethiopian economy is still one of the smallest and the weakest in the world. It is dominated by the public sector backed by state protection. Certain sectors are still closed for foreign investors. But Ethiopia is opening up. We have seen international companies massively investing on land and other sectors send their own (foreign) lawyers for negotiations, drafting and even signing the contracts. We have also seen managers of international companies come with their lawyers or take drafts to their lawyers to look at them. No international investor throws money in a deal that lacks legality and enforcement in courts. International investment, big or small, involves lawyers. As investment grows and comes to involve billions of dollars, the country cannot close its doors to foreign lawyers who want to represent international interests in the country. Sooner or later, it will have to issue licenses to foreigners to practice law in the country. Allowing foreign lawyers of Ethiopian origin might be the first step in that direction.
Opening private legal practice to foreigner does not mean it will be easily accessible. Applicants will face problems in relation to legal education they have and competence in language. To begin with, domestic law is domestic. Foreigners who do not get legal education in the country are not, in principle, expected to apply for a license. Even if they apply, they will have to pass admission exam to join the practice with good grades before getting the license. However, foreign legal education should not, on its own, pose a problem to get a license. Then there is a problem of language. Federal courts use Amharic, recognized as official language of the country by the Constitution, whereas regional courts, depending on the region, use local languages. It is least likely that a foreigner of foreign origin will practice law in regional courts. It is less likely that federal courts will allow a foreign language used in their courts unless a special instruction is issued to this effect. Though bad, we all claim to speak some kind of English . If courts are issued an instruction, English will be the language for foreigners of foreign origin to use.
Given the barriers mentioned above, it is most likely that foreigners of Ethiopian origin with legal education in the country itself and speaking at least the official language that will apply and qualify to get the license. Allowing a handful of such lawyers is not opening the flood gates of foreign lawyers who do not know the law of the country and speak in a language incomprehensible to the Ethiopian legal mind. In fact, allowing foreign lawyers of Ethiopian origin brings enormous return to the country. It brings foreigners and their families to the country who would not otherwise have come.The foreigners will most likely come with foreign advanced legal education and experience that will enrich legal education, research, consultancy and practice in the country. Some lawyers work in firms abroad acquiring knowledge on establishing and managing firms. Legal firms as known in other countries (say firms with limited liability) do not exist in the country right now. There are law offices in which lawyers share space and services and, in some cases, share their income. What dominates are solo practice.
It’s no secret that the legal market in Ethiopia is growing even if it is not among the fastest growing. In some African countries, the legal press is continually thrown into overdrive reporting on the birth of new law firms, en masse partner moves, alliances, mergers and joint ventures. Despite growth of the legal market in Ethiopia, the legal sector in general and private practice in particular is still viewed as the most underdeveloped, isolated and least capable of dealing with the increasingly complex demands of multi-national clients. Expansion, premised on infusing foreign legal knowledge, experience and practice is needed- something that has worked well for some African countries. Domestic law offices and solo practices are not likely to meet the demands of huge international and domestic investors. .
Ask most lawyers in private practice in Ethiopia about the benefits of foreign lawyers of Ethiopian origin practicing in the country and there is a good chance they will tell you it’s all about money grab. They might argue that there are no benefit that opening up the legal market to foreigners would bring. Some would even go as far to call it “invasion", “subversion” or “broad day light robbery". These lawyers can’t see the gateway it is between the country and foreign investors, a means by which knowledge, know-how and business development skills can be transferred between our developing local market and foreign markets. There is much more to allowing foreign lawyers practice in the country than just this. Looking for shared resources, foreign lawyers will make local lawyers wealthy as they will have to work jointly with them. Costs would normally be prohibitively high for foreign lawyers to practice without the help of local lawyers. In countries where foreign lawyers practice, local lawyers, while all the time maintaining their independence, have reported that their association with foreign lawyers and firms have been pivotal to practice development, allowing them to learn from the business development strategies employed by foreign lawyers and firms. There is no time like the future to the legal profession and private practice in which foreign and local practice work together.
The growing importance of globalization of law and private practice needs something more than attitudinal change. Traditional limitations on the geographic scope of legal practice are falling away. The consolidation mirrors those that have swept other service industries, including banking and accounting. MoJ and its justice bureaucrats represent archaic protectionist position which needs a serious shake up. They need to have a basic grasp of the economic change the world and country is going through. They should not be allowed to stand on the way of economic development and growth of the country.
As far as policy is concerned, the Ministry of Foreign Affairs has expressed support for foreigners of Ethiopian origin to practice law in the country. That stance is good for the government as it is courting the Diaspora for greater involvement in the economic life of the country. Justice bureaucrats do not realize that blocking the opportunity of a handful of foreigners of Ethiopian origin from practicing law in the country has far reaching repercussions. The individuals concerned will not simply walk away. They will speak about it wherever they go and to whoever listens. One additional example for the Diaspora to shy away from participating in the development of the country.
On both law and policy grounds, the MoJ is way off the mark. The effect is, the ministry is seen both nationally and internationally committed to show power and control rather than facilitate enforcement of rights. Rights of foreign lawyers of Ethiopian origin to practice their profession in the country. Rights of international and domestic businesses and individuals to choose their lawyers and bear the consequences of their choice.