President's diary: Cape Town, day 5

Day began with early morning attendance at the CTICC for the LSEW young lawyers' do. Lucy Scott-Moncrieff spoke, but only for 10 minutes to welcome everyone, including a large number of local young attorneys and trainees who were coming together for a session before most of them went off to work in Cape Town.

The bulk of the time was spent table-hopping and networking. Mark Stephens introduced me to a group of lawyers from a law centre to talk about media training and communication. We did some mock interviews and it was great fun to see how easy or difficult it is to face a camera or microphone when explaining complex legal issues in audience-friendly language and confident style.

We then went to the main chamber, which seats probably a couple of thousand sitters. Our programme began with a large choir of 10 to 14-year-old multi-racial children singing (and dancing and playing instruments) for us in wonderful harmonic style, dressed in bright colourful costumes. We were then introduced to various VIPs on the podium, all of whom spoke in turn on a variety of subjects.

Among them (many were the usual pleasantries, welcomes, acknowledgments of the work done in preparations for the conference) was Krish Govinder, co-chair of LSSA, who gave us a short history of the legal profession in South Africa particularly from and since the days of apartheid, the provincial law societies, and the development of the LSSA. Sadly the traditional societies had a relationship with racial segregation and the authorities that was not, or is not now, one of which to be proud. Indeed many lawyers who were aligned with the struggle for racial equality left or were put out of those societies, and ended up forming two organisations, the National Association of Democratic Lawyers and the Black Lawyers Association.

To skip right forward, they then set up the Law Society of South Africa, and under parliamentary legislative procedure it is assuming the provincial societies and being granted full regulatory power. The aim and purpose of these changes is to bring about consensus, to unite the profession and go forward to try to promote a fair society. It puts our debates in Scotland about regulation and representation in context.

Boma Ozobia, Commonwealth Law Association President, read out a message from Her Majesty the Queen wishing the conference and the Association well.

The keynote speech was by the Chief Justice of South Africa, Mogoeng Mogoeng, and this was a nakedly political speech – and a combative one – which we felt was for the local audience and indeed media and population rather than for the Commonwealth audience. I had discussed the previous evening with colleagues that there is a perception or suggestion that the appointment of judges in South Africa is now on racial and political lines rather than merit. The Chief Justice gave a longish speech which sought to argue that this was not so; however, after spending some time describing what his Judicial Services Commission is, the fairness and balance of its membership (it includes members of the opposition, court practitioners and non-lawyers as well as judges), what it does and has done, he tried to demonstrate that the Commission is not bent on selecting judges in order to right a racial or sexual balance on the bench.

He then to some considerable extent contradicted that by diagnosing the problems of imbalance in the legal profession in South Africa. The reality is that the white population hold the commanding heights of the economy, and choose white lawyers, white barristers, white firms predominantly, so it is crucial to help the black and female legal profession to grow, and to engineer a fairer and more representative profession, to provide in turn a larger pool of talent for judicial appointment. The Chief Justice started and finished with a clear statement that the independence of the judiciary is fundamental to saving and nurturing a fair society, and that South Africa does not want to risk falling back into the near-disaster of the apartheid era.

It clearly is a hot potato in South Africa. He described how campaigns for appointment of candidates to senior judicial appointments are more like those for political office or election to the National Assembly.

Coming right down to the fundamentals, he said it is also necessary to encourage more black and female students to go to university to study law, and build substantial and suitable from there.

After another keynote speech on human rights – though this was a rather dry and theoretical analysis of human rights and their interaction with the rule of law – we broke up into streams. I attended the Lawyers on the Frontline session, where we had a very interesting set of talks from lawyers who had seen oppression and unconstitutional activity in, variously, Papua New Guinea, where a judge was arrested and arraigned on trumped-up charges on two occasions, Uganda, where the speaker was held and interrogated for three days before being deported to Kenya, and Malaysia, where our speaker led a lawyers’ rally and subsequent demonstrations against electoral fraud and they were beaten and gassed. These stories were dramatic, instructive and frankly humbling. Lawyers and legal organisations are on the frontline across the world.

And I don’t know whether it was ironic or sadly appropriate that this session on this subject was itself directly affected by oppressive behaviour by governments. The chair of the session should have been Beatrice Mtetwa of Zimbabwe, but she could not attend as she had been arrested by police when she challenged those police to produce a warrant when they started to search the Prime Minister’s house. You literally could not make it up.

Next session was also a set of case studies, though more about the way civil law interacts with local situations and both customary and constitutional law or tradition around the Commonwealth. Within the five speeches, three really stood out.

In Malaysia, Sharia law is a real and constitutionally embedded system of law and courts. The case of Lena Joy was narrated. She sought to convert from Islam to Christianity, but in order then to get a licence to get married she had to get not only civil certification of her status and new name (she took a Christian name on conversion), but was forced by the national register office to seek a Sharia court dispensation from membership of Islam. She opposed this on the basis that she was no longer a Muslim, and (a) the Sharia court had no jurisdiction, and (b) she then ran a real risk of both being refused, and even being jailed for apostasy.

She took the matter to the High Court, the Supreme Court and the Federal Court in Malaysia and lost every time – on majority with the Muslim judges finding against her, and non-Muslim judges in the dissenting minority. She then tried again on constitutional grounds and lost for the second time. On all occasions the courts said she had to get a certificate from the Sharia court, even though it was and is clear to her that that court has no jurisdiction. The Malaysian civil constitution guarantees religious freedom, but the mismatch with Sharia law has created a huge fault line in personal rights. She has been left in limbo as she cannot marry her Christian fiance without running the risk of further legal action.

The speaker, barrister Stephen Thiru, went on to describe other catch-22 issues of the twin-law setup. If a couple separate, the presumption for maternal custody is overcome, indeed reversed, if the husband/father converts to Islam. If he converts covertly, then on his death a non-Muslim wife or family may not bury him or inherit his assets. There was supposed to be a question and answer session after this, but a Muslim lawyer in the audience took great umbrage at the talk and the legal analysis, and a rather uproarious exchange developed, which went to prove Mr Thiru’s point in a way.

Another case was not really a single case as such, though the speaker, a Tanzanian judge, referred to LAWU (Law and Advocacy for Women in Uganda) v Attorney General for Uganda. Once mentioned, we heard no more of the case, but a great deal about its subject matter – female genital mutilation. It is a subject I had been, as we all are, aware of, but Justice Sophia Wambura proceeded to take us clinically, as it were, through the horror that is FGM (that’s the acronym it is now universally given) in East Africa, though we also got the astounding statistic that it is suffered by 140m women and girls across the world.

In spite of the efforts of lawyers and lawmakers in countries like Tanzania and Uganda, customary habits and completely entrenched traditional norms mean it is a desperately uphill struggle to get any traction on improvement. As with other topics, I don’t have the space here to do this full justice, but here are a couple of facts: if, as is always a likelihood given the rusty razors and cow dung used for cutting the private parts and staunching the wounds, a 14-year-old girl were to die of blood loss or infection on her long walk home from being butchered, she is regarded as cursed, and also potentially a cause of official investigation, so she is not buried, but thrown in a river or forest. Any woman refusing (if able physically to refuse) FGM is immediately cast out and shunned, and will either never marry nor inherit the gifts, cows and good name given to those who submit.

Lost of things are being tried. A change in the law to allow doctors to examine children thoroughly, which does not exist at the moment, is proposed. Young women themselves, even if they know the act is a crime, are entirely unlikely to inform on their own family, not least as they are usually financially dependent on them, to say nothing of the shame in the community. Refuges and secure advice centres are being opened; medical and health education are being improved; men are being targeted to change attitudes to cut women; role models are being sought to put out a strong anti-mutilation message. The 10 February 2013 was the 10th International Day of Zero Tolerance for FGM. But fundamentally, Her Honour said that the law is one thing, but not remotely everything, and is of itself pretty powerless to solve this awful worldwide disgrace and tragedy. She is realistic, yet there is still hope. In turn I hope she is right.

The third case was closer to home in South Africa. You may have heard of the Scorpions – the anti-corruption force who had got some success in exposing and breaking up scams and frauds, in a country riven and spoiled by major financial irregularity and payoffs. In fact two local attorneys I was talking to at lunch said that not only is it so frustrating for them that so much of their tax goes to waste through being lost, but then more goes on the legal costs incurred in prosecuting or suing those suspected of corruption.

Anyway, the Scorpions were too successful. When they started hammering on the doors of some senior ANC people, it was too much. The ANC resolved at their next conference to disassemble the Scorpions (who were run by and under the protection of the prosecution service and thus independent of Government) and create a new team – the Hawks – who would be part of the police force, and thus, apparently, more likely to be controllable directly by the Government, indeed the draft bill to go before Parliament put their instruction directly under the hand of the Cabinet. Appointment (and review) of its leaders would be by politicians; members would not have protected employment rights; and the whole thing reeked of a fix.

Enter a Mr Glenister, who took the President of the Republic and others to court to challenge the actions as being in breach of the constitution. He failed at the first attempt at the Constitutional Court as he was regarded as being premature, as nothing bad had yet happened, but once the Act was passed he took the case back to the court and eventually won – a 5-4 decision – and got the parts of the statute struck out as unconstitutional. That was on the basis that there was and is no doubt that there is substantial corruption in the country, and that the Government has a duty to put in place reasonable arrangements to counter that, in the socio-economic interest of all South Africans whose rights are protected by that constitution. Thus it was unreasonable to establish a squad not sufficiently independent to carry out those functions adequately.

Evening was a reception held by the LSSA at the castle, meeting greeting and swopping business cards. As ever, most people are either distantly related to a Scot, claim to be or want to be.