An interview with Barnabas R. Tumusingize, one of the top lawyers

Tell us about Sebalu and Lule Advocates?

The firm was started in 1980 by two partners, Mr. Paul Sebalu who had just retired as the Principal Legal Counsel for the East African Community and Mr.  Godfrey Lule who was a former Attorney General for the Government of Uganda.  Today, the firm has 18 lawyers, is still growing and is located at the East African Development Bank building, the same location since its inception. Our main areas of practice are mainly banking and finance, corporate commercial, litigation and dispute resolution, employment and pensions, capital markets, project and infrastructure finance, tax, real estate and conveyancing and, of late mining,  energy,  and oil and gas.

Chambers Global and IFLR1000 have consistently ranked your law firm as one of the best in Uganda. What makes S&L unique?

CG and IFRL1000 are top global directories used as a point of reference for anyone looking for top lawyers in any country. These directories do research in every country.  They have got researchers who will call you for about 30 minutes to ask you some questions about lawyers and firms in your country and how you rate their performance. For example, they will call me to ask about other lawyers in the country — how I rank them, cases or assignments they have handled and their professional acumen.  They will equally call other lawyers and ask them about you and to assess you as well. They will also request for contacts of your clients for interviews. That’s how they do their research. S&L being ranked in the top tier 1 is an indication of both fellow practitioners’ endorsement and the clientele that we serve.

There are several reasons for our uniqueness. Top on the list is providing a high quality of service. You have to offer consistent quality service in terms of turnaround time and quality results (how fast your team handles client work and delivers quality results). If you are going to take ten days and another one takes two days, certainly the client will choose the latter. What we know for sure is that a quick turnaround time is due to streamlined processes, automation and good governance at both practice and individual assignment level. These are areas we first focused on as a firm as a foundation for our long-term success.

The other point issue is quality. What is the qualitative aspect of the kind of work you do? If you get a case, how much time do you put in to ensure that you give the client the best results possible? This is not about winning the case at all costs. It is about investing the firm’s resources and team skills it requires to get results for your client.

We also hire the best lawyers. To be honest with you, while there are many lawyers graduating every year from the law schools in Uganda, it is hard to get good-quality lawyers. Here at S&L were look out for the best skilled lawyers who are at a premium in the field.  Forget about those thousands that go through law school every year. Getting a good lawyer is still a big problem in Uganda. Because we handpick each and every person on our team, our lawyers are passionate about the areas of their specialisation. Each one brings something unique to the team. And that is the uniqueness you find at S&L.

Transparency and honesty  are critical. If you handle a case where you will receive  US $1m on behalf of your client passing through your bank account, will the client be confident  and have a good night’s sleep in the comfort that all his money is safe? Or you will come up with excuses that some US $100,000 was charged off your account on account of expenses that were never agreed with the client in the first place? So, the question of transparency and honesty is very critical.

Many issues that would have been handled by arbitration are being taken to court. This is attributed to the proliferation of many lawyers leaving law school. As a result, there is backlog of cases in court. Why is this so?

Whether a case goes for arbitration or not depends on the facts at hand. If we agreed the matter should go for arbitration, the matter will ordinarily go for arbitration.

We now have a small claims procedure. These small claims cannot go to court. Currently, in the Commercial Court, it is mandatory that before a case goes for full trial, you first go for mediation sessions.  If mediation fails, that is when the case will go for trial. There are mechanisms that ensure cases go for mediation before going for full trial.

Even if there are many lawyers leaving law school, they have to practise the law within the set parameters and procedures that are well-established and known. Regarding the issue of backlog, it is a combination of work ethics and a dearth of judges in certain courts. I will, for example, tell you that since the recent filling up of vacancies in the Court of Appeal we have started seeing a very positive shift towards very efficient and fast disposal of cases.

Looking at the top 100 law firms globally, you notice there is a shift from litigation to legal advisory. How is Uganda prepared towards this kind of shift?

We are heading there. For example, the Commercial Court is heading towards more of mediation; this is already acting as a precursor.  However, the most important thing is that the system  itself must be able to adopt certain mechanisms that promote less litigation and more dialogue.

Besides, we work in a legal framework and if the framework calls for litigation, then we follow that.  Before the Commercial Court introduced mediation, everybody had to go for litigation. Therefore, it all depends on what is there at the time.

With arbitration and mediation, the system must be fair, transparent and have the right calibre of arbitrators that inspire global confidence. For example, if you have a multi-million dollar agreement, and there is an arbitration clause, you are unlikely to have a clause providing for the arbitration in Kampala. It will either be London, New York or Paris.We have not yet developed our systems of arbitration to the level multinational companies and investors can trust and be confident of using them to settle disputes in Uganda. Until we develop strong arbitration frameworks that can be trusted by both local and international parties, all arbitrations will have to be done in London or New York or Paris.

Many cases going to court now involve some form of electronic discovery. Is Uganda ready?

Courts have already made big strides and there are some cases where electronic mails (e-mails) have been accepted as evidence. However, as of now, I am not aware of cases where short messaging services (SMS) have been used as evidence.  However, I do know that print-outs logs of calls have been used as evidence and therefore we are on the move into that direction. The court is of course concerned a lot about authenticity.

Is the message authentic? How can you prove that? For example, the provider would have to support the evidence that this SMS is from say John and not any other [person]. They should be in position to provide proof of that. Any evidence with room for manipulation becomes contentious. You have seen cases where messages are received on your phone purporting to be coming from your friend, when in reality they are not. That is how bulk messaging is abusing the integrity of the platform. I believe that with the current registration of SIM cards, this will go a long way in bolstering the authenticity of the source of the calls or messages.

There has been proliferation of cases in Uganda against service providers. Is this trend healthy?

True, there has been an upsurge of cases. There is a case we are handling where several banks were sued for charging service fees for services offered. For example, withdrawal fees or service charges for utility bills payments. Some lawyers sued eight banks over these charges.  There has been an increase of cases of that nature. However, it’s very difficult for me to comment on whether it is legal or not in respect of those cases which I am not handling since I do not have an idea on the evidence available because the case would have to turn to what the law says.

For example, one would have to consider the basis of such charges – are they established by law, is it by contract between the parties? These are the issues that would have to be taken into consideration in case of bank service charges, we acted for the banks and our contention was banks provide service and thus when you go to banks for a service; automatically there should be charge for this service.

You mentioned about turnaround time. However, in your office here, I see a lot of paperwork. How far are you with automating the practice?

The problem is that you cannot easily get away with paperwork, at least in the short term. For example, several instructions from our clients come on paper and we must respond using paperwork.  A plaint   for a case filed in court is on paper and the response is on paper. But that does not mean we are not automated.

We are automated. The whole firm is networked. We get a lot of business through email. We also respond via email.  The biggest problem is that we can’t get fully get automated, unless the institutions we work with are fully automated.  If I cannot file my proceedings in court via a computerised system, I will have to do so using paperwork. However, if the court system is automated, then we shall have to follow suit. I look forward to a time when I can file court papers from the comfort of my office or can conduct a search at the land office or the companies registry by the click of a button.

Take the case of company registration. We get instructions from clients directing us to do searches about companies.  I have to put the instructions on paper for my clerk to go to the companies registry to do the search manually. After that, I can send the search results to my client electronically. I was in Hong Kong a few years ago and established that you only have to subscribe to the Registrar of Companies via their online database and can then obtain the information on your PC. If you want to do a company search, you do so electronically.  If our lands office were to live up to their  promise and open up their database  in future, title searches would be done electronically and they would be making a lot of money in the process . Our lawyers and clerks go to land offices every day several times, but you can imagine how this would be  easy work if it was to be done in the comfort of our offices. I would not mind paying a reasonable annual fee to subscribe to their automated system.

Our automation in offices will be complete depending on how other institutions we work with get automated — the courts, land office, the registrar and you, our clients.

Let’s talk about the future: what should firms do to be competitive?

Proper positioning is critical especially in emerging trends; for example, oil and gas. One of our lawyers has just graduated with a master’s degree in oil and gas from the UK. One has to see what the trends are and position the firm to meet the emerging trends and needs of the market.

It is also how best you position yourself regionally and globally because some of the work we actually get as lawyers is not only local. Our firm is associated with firms in Tanzania, Kenya, Burundi, Rwanda, South Africa, New York and the United Kingdom. These firms refer work and clients to us.

For example, just yesterday, our correspondent firm in Kenya sent us a client who was coming to Uganda in addition to lots of work and clients they have  referred to us and us to them. A few weeks ago, we were handling work for a client sent to us by our correspondent firm in South Africa. The issue is how you are positioned to get the kind of work not only within the country, but regionally and globally.

The East African Law Society has for some time now been discussing the issue of cross-border legal practice. In Kenya, for example, the law that required legal practice in Kenya to be Kenyan citizen only has been scrapped. With the coming into force of the Common Market Protocol, there is free movement of goods and services within the region. Right now, I am handling a case in the in High Court of Tanzania under licence from the Chief Justice of Tanzania. I believe these are trends to watch out for and leverage on.

What is your advice to an upcoming lawyer?

You need passion and determination and hard work to make it through the law school. Once there, work hard to be the best of your ability.  You must channel your passion into legal internship and put in your all. Learning is an ongoing process for lawyers. If you have sustained focus, determination and passion, you will make it.

Copyright. Mustapha B Mugisa, 2013 All rights reserved.