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State Counsel (SC)

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Speaker of the National Assembly, Nelly Mutti

By Dickson Jere

President Hakainde Hichilema yesterday conferred the “rank and dignity” of State Counsel (SC) on the Speaker of the National Assembly Nellie Mutti, Home Affairs Minister Jack Mwiimbu, Electoral Commission of Zambia (ECZ) chairperson Mwangala Zaloumis and lawyer Ashad Dudhia. They, therefore, took Oath of Office at a swearing-in ceremony at State House. This is just a second step in becoming State Counsel – they will now await for a Call-Day to be admitted to the Inner Bar by the Chief Justice to complete the process.

Congratulations are in order for taking what we call “Silk” in legal parlance. They will henceforth be required to wear silk gowns and long ceremonial wigs! Their legal fees, when they goes back in private practice, will be higher than the rest!

The President does not just wake up and appoint State Counsel. It is the process that begins with the Law Association of Zambia (LAZ) hereby those intending to be State Counsel makes an application in writing supported by recommendations from a State Counsel.

The law – Legal Practitioners Act – permits the President of Zambia to appoint ideally not more than three State Counsel every year. Those intending to be State Counsel apply and there is a process of vetting which includes the LAZ Council and the judiciary. Ideally, a candidate must be someone who has distinguished himself in the practice of law.

However, the law also provides that certain office holders should be conferred with the rank and dignity of State Counsel by virtue of their office. These are; Attorney-General, Solicitor-General and Director of Public Prosecutions. Before the law changed, holders of these offices were never entitled by right to be SC – that is why one George Chilupe who served as Attorney-General under the Frederick Chiluba government was never SC. Debate abound whether this should be continued or not but suffice to note that Attorney General is leader of the Bar and therefore makes sense for the office holder to be SC.

By convention and practice in Zambia, only litigation lawyers have ended up being conferred with the the SC title. This has triggered debate as to whether an accomplished legal scholar – without Courtroom experience – should also be entitled to be admitted as State Counsel. We have renowned lawyers such as Prof Muna Ndulo who has taught so many lawyers and his books are a must read for every law student at undergraduate. Should such be entitled to be State Counsel?
What about those who have practiced law in-house as corporate lawyers or indeed company secretaries and have contributed to the growth of law and jurisprudence in Zambia?

You see, State Counsel is senior most position within the legal fraternity. It takes precedence over the other lawyers and one is accorded the highest respect – and State Counsel cannot appear in Court alone but with junior counsel as part of mentorship.

So what happens when a State Counsel is appointed Puisne Judge?
Should they carry the title? Judiciary hierarchy of precedence is different from lawyers. Whilst lawyers follow State Counsel and number of years at the Bar, the judiciary follow seniority of the Court. Simply, a Judge State Counsel in the High Court is junior to a Judge non-State Counsel in the Supreme Court.

It also appears that precedence has been created by convention that a lawyer Minister of Justice should also be State Counsel. This was started in the PF administration when Justice Minsters Wynter Kabimba, SC and Dr. Ngosa Simbyakuka, SC were conferred the title of SC. And now the current Justice Minister Mulambo Haimbe is equally State Counsel. It makes sense from the point of view that Minister is “first among equals” in the ministry and therefore cannot be boss of two State Counsel when he is also senior lawyer and qualify! He must be SC too!

Congratulations to the newest Silk in town!

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