PROTECTION OF LEGAL SERVICE CONSUMERS IN TANZANIA: AN EXAMINATION OF THE LAW

Main Article Content

Eventius Mugyabuso

Abstract

In protection of both consumers of goods and services, quality forms a key aspect. This paper discusses quality of legal services offered by advocates to their clients. It is revealed in this paper that save for precedents there is no legislation in Tanzania which imposes duty on advocates to offer quality legal services. It is also revealed that quality of legal services offered to clients depend on ability of the client to afford the services, ability of the client to clearly state his needs and; the ability of the advocates     to make use of his skills and knowledge to offer a requisite solution to the client’s needs. It is further revealed that institutions responsible with monitoring the quality of legal services are characterized by deficiencies. This paper recommends for both constitutional and legal reforms that will take on board the needs of the consumers of legal services.

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How to Cite
MUGYABUSO, Eventius. PROTECTION OF LEGAL SERVICE CONSUMERS IN TANZANIA: AN EXAMINATION OF THE LAW. THE LAW SCHOOL OF TANZANIA, [S.l.], v. 2, n. 1, june 2018. Available at: <http://journal.lst.ac.tz/index.php/lst/article/view/16>. Date accessed: 19 aug. 2018.
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References

1 LL.B, LL.M (UDSM), PhD student (University of Dar es Salaam-School of Law), Advocate of the High Court of
Tanzania, Counsel - Luguwa & Co. Advocates, Assistant Lecturer- Institute of Social Work. This paper has been
extracted from chapter three of my Ph.D thesis titled “Protection of Consumers of Legal Services in Tanzania: an
Analysis of Law and Practice. The said thesis is on the stages of examination at the University of Dar es Salaam
School of Law.
For a detailed discussion on the origin, development and regulation of the legal profession, see Jonathan R.
‘Medieval Attitude towards the Legal Profession: The Past as Prologue’, 28 Stretson Law Review 1, (1999); Brundage
J. ‘Vultures, Whores and Hypocrites: image of Lawyers in Medieval Literatures, 1 Journal of Roman Legal Tradition,
(2002), p. 62; Uelmen A., ‘A View of a Legal Profession from a mid 12th Century Monastery’, 71 Fordham Law
Review, (2003), pp.1537-1538 and; Buhai S. ‘Lawyers as Fiuciaries’ 53 Saint Louis University Law Journal, (2009),
p.559.

2 See United Nations Principles on the Role of Lawyers; Adopted by the Eight United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September, 1990; Mutual
Recognition Agreement for Advocates in the East African Community, Draft number 1 October 30th, 2014.
See also the East African Community Cross Border Legal Practice Bill, 2014.

3 A client may seek the services of an advocate on a myriad of issues which range from contentious business to noncontentious business. Save for Legal Services Act, 2007 (UK), legislation of most jurisdictions do not provide the
scope of services reserved for the professional lawyer.

4 Mkono and Company Advocates (a firm) v. JW Ladwa (1977) High Court of Tanzania Commercial Division at DSM, Civil
case No. 3 of 2000 reported in (2000) TLR 376.

5 Most consumers are not skilled in assessing the quality of services and products they consume. They simply rely
on the information supplied by the suppliers which is not always correct. The information supplied to consumers
by the suppliers is most of the time technical and full of misrepresentation. That information is also sometime too
much for the consumer to analyse and synthesize.

6 Such authorities include Consumer Protection Authorities and Competition Authorities.

7 Procedures monitoring protection of consumers relate to various processes. These processes include obtaining
licence for establishing the business, registering the business, procedures relating to production of the goods or
services, parkaging the goods in accordance to appropriate weights and volumes, lebelling, safely distribution
of the goods in the market and safely consumption of the product. These processes are mostly regulated so that
the consumer is not harmed by the product supplied to him. See Donoghue v. Stevenson (1932) AC 562; See also
Henderson J., “Judicial Review of Manufacturers’ Conscious Design Choices: the Limits of Adjudication” in
Columbia Law Review, volume 73, Issue No.8, 1973, p.1531, at p.1546, 1555 available at http://scholarship.law.
cornell.edu/facpub/964 (accessed on 12th August, 2015).

8 In consumer protection, law denotes the state willingness to monitor the economic activities of, among others,
the private enterprises which are likely to cause injury to the public, i.e., the consumers. Therefore the interest of
the state is to make sure that there is a levelled ground upon which the consumer and the supplier may negotiate
on equal terms. On the other hand practices emerge in two ways. On one hand practices emerge as an attempt of
seeking a best way of implementing and enforcing the law; on the other hand practices emerge as an attempt to
fill in the lacunae in the existing law.

9 In consumer protection, there are two types of consumer needs: substitutable and non substitutable needs. A
consumer who drinks a cetrain brand of beer may substitute the same with the other brand in case his preference
is not satisfied or he may opt not to drink until his brand is available in the market. The consumer of legal
service has no substitute. For instance certain documents are supposed to be executed before the lawyer. Also
there are other services which can only be supplied by the advocate. The services of an Advocate therefore are
mandatory; they cannot be substituted with the other process. For example representation in suits and attestation
of signatures is done by advocates (save for few exceptional cases).

10 See Hutchinson A., Legal Ethics and Professional Responsibility, Essentials of Canadian Law, (Canada: Irwin Law,
1999) see., Appendix A: Canadian Bar Association: Code of Professional Conduct.

11 For a detailed discussion on legal ethics generally and quality of legal services in particular, see Hutchinson A.,
ibid, fn 10.

12 The institutional framework will concentrate mainly on the Council for Legal Education and Continuing Legal
Education Committee. Other institutions such as the Remuneration Committee and Advocates Committee are
not discussed in this paper.

13 In legal research “empirical evidence” denote data or evidence obtained from the field research on how the
problem under study exists in a particular society, the manner it is perceived and the methods which are used
to get rid of it. See Baldwin J., and G. Davis, ‘Empirical Research in Law,’ in the Oxford Handbook for Legal Studies,
Cane P., and M. Tushnet, (eds.) (Oxford University Press, 2003), p. 881. See also Chui W., and M. McConville,
(eds.), Research Methods for Law, (Edinburg University Press, 2010), p.6.

14 Data were collected from five regions. These are Arusha, Mwanza, Kilimanjaro, Dar es Salaam and Mbeya. The
criterion for selection of the said regions was based on the available number of advocates and consumers.

15 Corporates which were involved were CRDB Bank, National Microfinance Bank (NMB), National Bank of
Commerce (NBC), Tanzania Investment Bank (TIB), Tanzania Women Bank, Tanzania Postal Bank (TIB),
Vodacom Tanzania Ltd, National Social Security Fund, LAPF and TANESCO.

16 There are very few exceptional cases relating to poor legal services being offered to corporate. See the case of
Calico Textile Industries Ltd v. Pyalaliesmail Premji [1983] TLR 28.

17 In the case of litigation, quality legal services does not denote winning a case but it is either settling it or
defending to the level that an ordinary professional advocate could do.

18 Tendering is one of the processes of selecting a supplier of services/goods from a number of interested applicants.
It is a method leading to procurement of goods and services. The essence of bidding is to enable consumers
enjoy the best services/goods at a reasonable price i.e., value for money.

19 For purposes of delivering quality services, the advantage of having a pool of professionals is dependent on other
factors such as transparency in managing the affairs of the firm, commitment of the members of the firm and
the various knowledge resources available in the firm. See Rwechungura C., ‘Developing Viable Partnerships in
the Legal Profession,’ in 60 Years of Advancing Justice and Rule of Law From 1955-2015, (eds). C. Binamungu & A.
Makulilo, (Dar es Salaam: TLS, 2015), 109 at 114.

20 Some of these lawyers have masters degrees in various areas, more specifically law and human resources
management. Many of these lawyers happened to practice as private advocates before being employed, Others
are still practising while performing their employers duties,

21 Rwechungura C., Op cit., fn 19 at p. 110.

22 Finnegan D., ‘Judicial Reform and Commercial Justice: The Experience of Tanzania’s Commercial Court,’
Background Paper Prepared for the World Development Report, 2005. See also Jayawickrama N., ‘The Bangalore
Principles of Judicial Conduct’ in Law and Justice in Tanzania: Quarter of a Century of the Court of Appeal, Peter
M and K. Hellen (eds.), (Mkuki na Nyota Publishers, DSM, 2007), p. 265; Caldeira J. ‘The Rule of Law and
Independence of the Mozambican Judiciary’, 1 journal of Tanganyika Law Society .3, (2007), p.93 and; Mkapa W.
‘The Legal System Should be More Accessible to More Tanzanians’ in Law and Justice in Tanzania: Quarter of a
Century of the Court of Appeal, Peter M., and K. Hellen (eds.) (Mkuki na Nyota Publishers, DSM, 2007), p. 33.

23 Jayawickrama N., ibid, fn. 22 p. 265 and; Mkapa W. ibid, fn 22, p. 33.

24 Voluntary legal aid schemes are run by the Tanganyika Law Society, the Non Governmental Organisations and
the University of Dar es Salaam School of Law. Also some of the firms and private advocates undertake legal aid
services as part of their social responsibility. Mandatory Legal Aid is in respect of dock briefs assigned by the
Chief Justice to advocates. For a detail discussion on the legal aid schemes see Omari A. ‘The Current Situation of
Legal Aid Provision in Tanzania’, pp.1-3; Mkumbukwa N., ‘Thoughts on the Mandatory Legal Aid in Criminal
Proceedings in Tanzania’ in Wakili Bulletin, November, 2014. p.11.

25 The key reason which has been given as leading to abandonment or frequent application for adjournment is that
once the clients have paid the first instalment of the fees, they either refuse or fail to pay the next instalments.
For cases involving legal aid, consumers are abundoned or advocates do not appear frequently when the cases
are scheduled for hearing because they do not have a financial incentive for appearance. Advocates consider the
fee for a dock brief,which is current Tshs 100,000/= per case as a joke leave alone and a little per diem rate of
Tshs. 80,000/- per day for cases requiring an advocate to travel outside his work station. See Mkumbukwa N.,
ibid., fn 24, pp.11-12.

26 For the cases of the manufactured goods, the view that, because manufacturers are in a more advantaged position,
they have a duty to take special care to ensure that consumers interests are not harmed by the product that they
offer them. In order to protect the consumers from injuries which may result from manufacturing defects, design
defects, warning defects, instruction defects, development risks defects, state of art defects, post marketing
defects and system damage defect, the law (or the consumer protection authorities) provide for guidelines on
the standard of quality of the goods to be manufactured. See A and others v. National Blood Authority [2001]3 All
ER 289; Donoghue v. Stevenson [1932] AC 562.

27 Harmer v. Cornelius (1858)5 CBNS 236 at 246.

28 Twaib maintains that the standard applicable to advocates for the cases involving incompetence, negligence and
breach of duty in the professional capacity is the same as that standard applicable to other professions like the
medical profession. He refers to the case of Theodelina Alphaxad, Minor s/t Next Friend v. the Medical Officer Incharge,
Nkenge Region, Civil Case No.14 of 1991 HCT at Tabora where Katiti J, cited with approval the case of Sidaway v.
Board of Governors of Bethlem Royal Hospital and Mudsley Hospital (1985) A.C 871; (1985)1 All ER. 643 (H.L) where
it was held that it was settled English Law that when a doctor decided what he ought, or ought not, to tell his
patient about the risk of the proposed procedure, the lawfulness of what he does will be principally judged by
tests found on the evidence of appropriate contemporary standards of professional care. For a detailed discussion
on the professional skills and care see Twaib F. the Legal Profession in Tanzania: the Law and Practice, (Dar es Salaam
University Press, Dar es Salaam, 1997), p.275.

29 (1960) E.A 993 cited from Kinemo R and A Nyamwangi ‘the Tort of Negligence on Advocates in Tanzania, p.11
& 12 (Unpublished paper).

30 Kinemo R and A Nyamwangi Ibid., fn 29, pp.11 & 12.

31 (1962) E.A 22 cited from Kinemo R and A Nyamwangi ibid., pp.12 & 13.

32 For the detailed discussion on the two cases from the East African Court of Appeal see Kinemo R and A
Nyamwangi, Op cit., p.12 & 13.

33 Lugaziya J., ‘Professional Ethics for Lawyers: Are They Damocles’ Sword Over Law Practitioners?’ 1 Tanzania
Lawyers Journal 1 (2015), p.63 at p. 90.

34 See Kinemo R and A Nyamwangi, Op cit., fn.29, p. 11.

35 Miller D., “Competition and Consumer Protection: The Relationship in Practice in Jamaica” 5th IDRC PRE-INC
Forum on Competition and Development, cited by Teseme E. Op cit., p.20.

36 Advocates Act, Cap. 341, section 5B.

37 Section 5A of the Act reads as follows “ the functions of the Council shall be to exercise the functions conferred
upon it by or under this or any other law and to exercise general supervision and control over legal education in
Tanzania for the purposes of this Act and to advise the government in relation thereto.”

38 This role is like that of the authorities (e.g. TBS) which determine the quality of the goods by testing and
experimentation before granting licence for supplying the same in the market.

39 The right to practice is only available to a person who is qualified by his learning and his moral character. See
the case of Baird v. State Bar of Arizona, 401 U.S. 1 (1971) cited from Brian D. ‘Admission to Legal Practice, the
Un-authorised Legal Practice of Law and, Legal Specialisation in Uganda’ available at http://ssrn.com/abstract
(accessed on 19th September, 2016). See also Slabbert M., ‘The Requirement of Being a Fit and Proper Person
for the Legal Profession’ 14 PER/PELJ, Volume 4, (2011), p.209 at p.210. This article is available at http://dx.doi.
org/10.4314/pelj.v14i4.7 (accessed on 25 December, 2016).

40 As part of administrative challenges, the Council does not have either secretariate or personels who are occupied
with the performing administrative functions of the Council. The administrative functions of the Council such as
compilation of the records for purposes of the meeting of the Council are performed by persons who are not by
virtue of their employment charged to do such activities. See also Twaib F., Op cit., fn 28, p.178.

41 In this period the number of applicants for admission as advocate was too small. This was because many graduates
of the then Faculty of Law University of Dar es Salaam were few (and some belonged to other East African
Countries). The remaining small number of Tanzanians were absorbed in the public sector. For a comprehensive
discussion on admission into the University, advocates admission and qualifying process see Twaib F., Op cit.,
fn 28, Chapter Five at p.218; Rwelamira M. ‘The Tanzania Legal Internship Programme: the New Horizon in
Legal Education’ Africa Law Studies, (1977), p.29 at p.32.

42 Rwelamira maintains that some of the aspects of legal education which were either ignored or not appreciated
was the internship programme. See Rwelamira M. Op cit., fn 41, p.29.

43 As of 2013 there were five universities offering Bachelor of Law programs. For more details see Mandopi, K.,
‘The role of Advocates in the Dispensation of Justice’ 1 Journal of Tanganyika Law Society 1, (2013), p.24 note 58.

44 On the other side, the liberalisation of legal education which resulted into the establishment of many institutions
offering Bachelor of Law programmes contributed to the expansion of the waiting list of petitioners for admission
on the roll of advocates. This was also associated with the Council’s practice of conducting interviews only twice
or sometimes once in a year.

45 Other achievement include the consolidation of the three volumes of the Roll of Advocates into one volume. The
first volume started with the name of Mahadeo Parashuram Chitale admitted on 14th January,1921, the second
volume started with the name of PR Dastur who was admitted on 20th April 1931 and the third volume started
with the name of Mahadh Juma Maalim admitted on 10th August, 2011. All these rolls have been consolidated
to one roll of April, 2014.

46 This theory is to the effect that in order for producers to survive they are to sell their goods to consumers.
They will only be able to sell to consumers what consumers want to buy. Consumers preference will dictate
what is made available. Producers compete and Consumers choose. The invisible hand of producers behaving
in response to consumers preference organises the market. The survival instinct among producers which is
instilled by the mechanism of competition will ensure an efficient allocation of resources. Given the stimuli
of competition, resources will not be wasted. Production will stand in equillibrium with consumption. For
a critical analysis of the rule of competition and perfect market See Howell G., and E Weatherill, Consumer
Protection Law, 2nd edition, (Ashgate Publishing Ltd, Ashgate, 2005), p.2.

47 The improvement of the quality of services sometimes goes with the reduction of prices. The economic theory
of competition is therefore to the effect that the competition scenario is an automatic process resulting from the
scarcity of consumers. Suppliers therefore have to employ every possible tactic and trick- positive or negative
to win the consumers attention. See Tenga W., ‘Consumer Protection in Tanzania: Challenges and Prospects for
the National Consumer Advocacy Council (NCAC).’ (Unpublished paper).

48 These numbers of firms are a result of the research done by Tanganyika Law Society for purposes of establishing
a directory of Law Firms for Dar es Salaam Chapter. Generally there are many law firms in Dar es Salaam
although their status in terms of number of partners, their resources and structure remains un-researched. See a
report released by the TLS on 15th November, 2015 on the existing Law Firms in Dar es salaam.

49 Looking on the advertisement made by these firms on their website or other means as painting staff cars, many
firms seem to have specialised in law relating to Commerce, Real Estate, Mining, Oil and Gas, Arbitration,
Taxation, Conveyance, Banking, International Trade and Finance, Mergers and Acquisition. Other laws
especially Criminal Law, Child Law, International Law, Islamic Law and others seem to have been not preferred
by many firms.

50 This posits a rule on advertisement. It is a means of informing the consumers of the services offered by the
respective firms.

51 For a detailed definition of the term “legal education” and its levels see Ojwang, J., and D. Salter ‘The Legal
Profession in Kenya’ 34 Journal of African Law, 1, (1990), p.9 available at http://www.jstor.orga/discover
(accessed on 11/7/2015). See also Juma I., ‘Discussion Paper on Drafting Instructions for the Proposed Council
of Legal Education Act’ a paper submitted to the Annual General Meeting of the Tanganyika Law Society held
at the Institute of Rural Development and Planning, Dodoma, 23rd February, 2013.

52 Juma I., Ibid, fn 51, p.3.

53 Report of the CLE to the annual General meeting of the Tanganyika Law Society held at AICC- Arusha on
22/2/2014; p.2.

54 Report of the CLE to the Half General meeting of the Tanganyika Law Society held at AICC- Arusha on 18/8/2014.
The reason given for the failure to visit the universities is financial constraints.

55 Explaining the process of professional training in Tanzania Mapunda maintains that arrangement to get placement
for practical training is left to individual students. They have to knock on the doors of practising advocates and
plead to be taken as pupils. The lucky ones get placement. and many do not. See Mapunda, A., ‘Standardising
the Criteria for Admission to Practice Law in East Africa,, Tanzanians’ in Law and Justice in Tanzania: Quarter of
a Century of the Court of Appeal, Peter M., and K. Hellen (eds.) (Mkuki na Nyota Publishers, DSM, 2007), p.277
and p.284.

56 Juma I., Ibid., fn 51, p.3.

57 This problem of supervision seems to have been too old. In 1977 Rwelamira indicated that the interns who were
attached to the Attorney General’s Chamber were not under any supervision. Some interns complained of having
no work to do; others complained that the work was repetitive, further more, advocates may be away upcountry,
if this happens to whom does the intern go? Had he been attached to an individual advocate at the litigation
department, that advocate could arrange to take him along on his travel. See Rwelamira M., Op cit., fn. 41, p.37.

58 Rocha discusses the requirement for an effective pupilage. He says that an effective pupilage requires a well
organized chamber, well equipped with tolerably good library and senior advocates who are willing to undertake
the guidance of new lawyers. See Rocha B., ‘The Future of Professional Legal Education in Ghana’ 1 Ghana
School of Law Journal, (2002), cited from Manteaw S., ‘Legal Education in Africa: What Type of Lawyer Does Africa
Need?’ 39 McGeorge Law Review, (2008), p.903, at p.934.

59 Mapunda, A., Op.cit., fn 55, pp.282-284.

60 For the cases of India, USA and England see Chandra K., ‘Legal Education and Legal Practice in India’ 36
International journal of Legal Information 2, (2008); Sandra K., ‘Legal Education in the United States and England, a
comparative analysis’, Loyola of Los Angeles, International & Comparative Law Review, (1991), p. 601, at pp 617-625.
Onolaja M., ‘Problems of Legal Education in Nigeria’, a paper presented at the Nigeria Bar Association meeting,
2008.

61 Salman R., and O. Oluduro ‘Towards Practice Oriented Vocational Legal Education in Nigeria’ 2 Ilorin Bar journal,
volume 2, (2001), p.6.

62 Onolaja M., Op cit., fn 60.

63 Samatta B., “Striking a Reasonable Balance Between Freedom of Individual and the Security of the State” in Law
and Justice in Tanzania: Quarter of a Century of the Court of Appeal, Peter M and K. Hellen (eds.) (Mkuki na Nyota
Publishers, DSM, 2007), p. 27.

64 For a detailed discussion on the relationship between quality of legal services and legal education see Tahir M.,
“A Review of the framework of legal Education in Nigerian Universities”, Op cit., p 8.

65 Juma I., Op cit., fn 51, p.4.

66 Ibid., pp.20-22.

67 Ibid., pp.20-22.

68 Initial inspection involves inspection of the institution offering bachelor of law degree before accrediting the
institution as a provider of legal education. Regular inspection is conducted after a grant of the accreditation and
thereafter at least once in every five years to enable the Council to satisfy itself that the institutions maintains the
initial standards that were approved.

69 Among the committees which may be considered include private legal practice Committee and the specialist
Legal Education Committee. The pivate legal practice committee intends to ideally be charged with the task of
reviewing rules relating to private legal practice, registration of law firms, registration of firms providing legal
aid and legal assistance to indigent. This committee should also set periodic standards of quality of private
practice in Tanzania. The specialist legal education Committee should be made responsible for identifying
emerging/frontier areas of legal education and advise the government on the allocation of human and financial
resources towards attainment of any such emerging theme of legal education. The committee should in addition
organise or design approppriate continuing legal education beffiting the new frontiers of legal education. The
committee in that respect may cause to be prepared any postgraduate qualifications for inclusion in the list of
approved specialist legal qualifications.

70 Juma I., Op cit., fn 51, pp.20-22.

71 Ibid., pp.20-22.

72 Cap. 307, R.E 2002.

73 Under section 17 of the Act, the Council has power to delegate to any committee all or any of the powers of the
Council.

74 See the report of the Governing Council of the Tanganyika Law Society to the Half Annual General Meeting of
the Tanganyika Law Society held in Arusha on 16th August, 2014, p.24.

75 These seminars are organized by the Committee itself or, with the approval of the committee, by any other
persons/ institution. Members can attend other relevant professional training provided by other institutions
but they must write to the CLE Committee for accreditation. See Minutes of the Annual General Meeting of the
Tanganyika Law Society held on February 22nd, 2014 at the Arusha International Conference Centre (AICC),
Arusha, p.23-24.

76 The members can also obtain the continuing legal education points through other processes such as participating in
legal aid services supplied on the legal aid day, acting as a resource person in continuing legal education seminar
and, in participating in other activity which has been accredited by the committee. That notwithstanding, there
are some advocates who have, with genuine reasons, failed to attend these seminars or any other accredited
activity. Therefore applications are normally made for the exemption. Due to the existing lacunae in the rules,
each case is treated on its own merits. See Minutes of the Annual General Meeting of the Tanganyika Law
Society held on February 22nd, 2014 at the Arusha International Conference Centre (AICC), Arusha, p.23-24.

77 In the year 2015 alone four seminars were postponed for lack of enough number of attendants. There were other
seminars which were postponed for various reasons such as lack of resource persons.

78 At the level of the chapter, there also exists a committee called the Continuing Legal Education Committee.

79 The seminar was conducted in Dodoma. It was titled “Criminal Law: Prosecution and Defending White Collar
Crimes”. See the Annual Report of the Governing Council to the 2015 Annual General Meeting of the Tanganyika
Law Society, pp.27, 59 - 61.

80 It is to be noted that continuing legal education points may also be acquired through participating in other
activities which have been accredited by the Continuing Legal Education Committee.

81 For the seminars conducted during the Annual and Half Annual meeting registration is done by filling in the
special form that is collected at the end of the seminar. This mechanism is designed to ensure that advocates
attend the seminars.

82 See the summary of CLE points issued by the TLS in March, 2015.