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Issa Shivji, on the occasion of his retirement as Professor of Law from the University of Dar Es Salaam, tackles the role of lawyers in propping up the neo-liberal system. This is an extract from the full version of his paper presented on the subject, which can be read by clicking on the link provided at the end of the article.

Neoliberalism generates a transnational legal intelligentsia to serve and oil it. Globalization globalizes corporate capital. The neoliberal elite globalizes the so-called ‘rule of law’. This is not the ‘rule of law’ embedded in liberal political values of the Enlightenment period. This is the ‘rule of law’, firmly rooted in the exigencies of the ‘rule of capital’ in the service of a corporatocracy. As Cutler says the ‘law that is being globalized is essentially American or Anglo-American in origin, promoting the values of neoliberal regulatory orders.’ Central to these values is the expansion and protection of property relations and private appropriation of surplus value.[1]

Thus the legal elite is involved as consultants to draft legislation on privatization; setting up enabling institutional frameworks in which corporate capital can function without let or hindrance. It is involved in drafting contracts to enable corporate capital to exploit underground minerals and overground bio-resources. It is involved in facilitating commodification of education and health; water and energy; customary land and traditional medicinal plants. It is involved in drafting intellectual property laws to protect modified seed plasma and herbal medicines, the knowledge of which is looted from peasants and pastoralists of the Fourth World.

Laptop consultants fly from capital city to capital city; conduct a week or two of ‘rapid rural appraisals’, churn out policy papers, make power-point presentations to stakeholder workshops, where state policies are made and endorsed.

The transnational legal intelligentsia is also divided between the First and the Fourth Worlds. The legal elite is based in the First World; the legal ‘masses’ or ‘messengers’ are based in the Fourth World. The international consultant is paid five times more than a local consultant and 10 times more than a local civil servant. Research and local analysis is done by the ‘legal messenger’; the international consultant does the power-point presentation and expounds on the norms of ‘international best practice’. A local lawyer tells me that if he wants to get a tender he has to associate with a Northern law firm. A number of local law firms are thus associated.

Consultancy gobbles up billions of dollars annually. Action Aid says almost one-fifth of total aid goes to pay consultants and so-called technical experts. Donors employ 100,000 technical experts in Africa. Tanzania pays US$500 million annually to foreign consultants more than three times what it received annually in direct foreign investment between 1994 and 1999. [2]

Consultancy is touted as one of the main functions of our University in the new Draft Charter. In the 1970s, the mission of the Faculty of Law was to produce society-conscious lawyers using the historical and socio-economic method. We did Legal Aid to assist workers, peasants, women and children. Now we are chasing the phantom of producing corporate lawyers. In terms of the Draft Charter, the University shall advance its objects ‘in close association with industry and commerce.’

Corporatisation of the university is part of the neoliberal ideological attack on critical thinking, on intellectuals who would ‘Speak Truth to Power’, to use the words of Edward Said. [3] It undermines the university as a critical site of knowledge, as a mirror of society. No doubt, temptations are great and none of us is immune.

As I approach the end of my oration, allow me to be a little nostalgic, to do a little soul-searching. At 60, I guess, you will also permit me to be a little immodest. In 1968, we in USARF, launched a cyclostyled journal called Cheche, named after Nkrumah’s The Spark and Lenin’s Iskra. Its first editors were three fine young persons, Zakia Meghji, Henry Mapolu and Karim Hirji.

The first issue carried my The Educated Barbarians. Reading it today, one feels a little embarrassed. In twelve pages it has some 20 footnotes, carrying half a page text in them with numerous quotes from Baran, Nkrumah, Fanon, De Castro and so on. No “respectable” publisher would accept it but then, at that time, we did not care. We did not write for publishing. We wrote as a part of ideological struggles. Clumsy and crude in style and somewhat mechanistic in thinking, it surely is. But The Educated Barbarians unmistakably exuberates anger, passion and commitment. We were in the period of radical nationalism called ‘socialism.’ Young people were angry at the world as it was, and intellectually committed to understand it better, and passionate to change it for the better. We discussed Fanon while we worked in cashew nut farms around the University, taught literacy classes in Mlalakuwa based on Paulo Freire’s Pedagogy of the Oppressed, built our own shelters, called houses, through self-help. Comrade Joe’s (Professor Kanywanyi) stands testimony to it.

Today, perhaps, my writings may be more scholarly, more intellectually refined. I can’t say. I am not supposed to say. Only my peers are allowed to evaluate. You need to be an Ali Mazrui to self-evaluate! But whatever be the intellectual verdict on them, I can say one thing about them, and no one can prevent me from saying it, these writings are not passionate like the ‘educated barbarians’. Maybe I am more educated now, but less moved by injustice, and therefore, perhaps, more barbaric! Once, reading a draft of my article recently, my daughter quipped, ‘papa, you are not angry enough’. And it is not a matter of age; one doesn’t grow out of commitment, passion and devotion because of age! We have to look for explanation, not justification; and explanation lies elsewhere.

Neo-liberalism has taken its toll and the language of consultancy has displaced and replaced the language of conscience and commitment. As individuals, we can only agonize and gradually forget even to diagnose the ills of our society. ‘Organise, don’t agonise’, my friend Chachage says, and goes back to his desk to write Makuadi wa Soko Huria. That, too, we need to do. It is better than flying off to Johannesburg to attend another conference on how to implement the imperialist-driven NEPAD.

I don’t know if our world is better than it was thirty years ago. But I do know that neither our country nor our continent is. Structural Adjustment Programmes of the 1980s destroyed the little achievements in education, health, life-expectancy, and literacy that we had made during the nationalist period. Neo-liberal policies of the last ten years have destroyed the small industrial sector - textiles, oil, leather, steel, farm implements, cashew nut factories – which had been built during the period of import-substitution. Most important of all, we have lost the respect, dignity and humanity and the right to think for ourselves that independence represented. The large majority of our people, workers and peasants, as the Arusha Declaration dignified them, have been transformed into ‘the nameless poor.’

Workers and peasants who were supposed to be the makers of history and motors of development have become the subject-matter of PRSPs – poverty reduction strategy papers. Private sector is the engine of growth, we are chastised day in day out, and history has ended, we are lectured. ‘Carbon’ copies of PRSPs are produced in country after country by laptop consultants. The poverty reduction strategies are a condition precedent for getting debt reduction. Meanwhile, debt rises; it used to be around US$8 billion, now it is over US$9 billion. Paying debts is like chasing a mirage! The goal-post keeps shifting.

Meanwhile, funded by millions of dollars of further aid, we hire a De Soto to tell us that we are too stupid to recognise ‘the mystery of capital’ and understand ‘why capitalism triumphs in the West and fails everywhere else’. We are sitting on trillions of dollars of ‘dead capital’. We have to breath legal life into these ‘dead’ assets and lo! behold, we’ll all be as capitalist as the West. The question is who would have the trillions of dollars at the end of the process, and who would be dead. History teaches us that the trillions accumulate in capitalist Centre leaving behind the dead, the mutilated, the malnourished, the divided and the conflict ridden, in the Periphery.

In the 1980s, financed by Mahatir Mohammed of Malaysia, Mwalimu Nyerere chaired the South Commission to look into how the capitalist West rides roughshod over the Rest, (my words, their message). Among other things, it found that the world was skewed and lop-sided and divided and suffered from unequal power relations. And it found that this was the result both of the history of colonialism and the contemporary unequal world order.

In its restrained language it said: ‘The widening disparities between South and North are attributable not merely to differences in economic progress, but also to an enlargement of the North’s power vis-à-vis the rest of the world.’ [4] The South Commission found that there was a reverse process of flow of resources from the poor South to the rich North. ‘… [I]n recent years’, it said, ‘developing countries have had to make net debt-related transfers of nearly $40 billion per year to developed countries, and there is little prospect of a reversal of this perverse flow of capital from poor to rich.’ [5]

In the year 2000s, President Mkapa was appointed a member of Tony Blair’s Africa Commission on poverty. In two sentences the Commission dismissed Africa’s 50-year history thus:

Africa’s history over the last fifty years has been blighted by two areas of weakness. These have been capacity – the ability to design and deliver policies; and accountability – how well a state answers to its people. (p. 14 ) [6]

So, Africans don’t have the capacity to think and African states don’t have the capacity to design policies. They are ‘blighted’ by lack of accountability which is a code word for legendry ‘corruption’ and the so-called “bad governance”.

In the 1960s, the West Germans were asked to pack and go and take with them all their aid baggage because they were using aid to pressurize Tanzania not to accord any diplomatic status to the East Germans. Today “good governance” demands that we pass anti-terrorism laws, even at the risk of dividing our people, because that is the foreign policy of some bushy bully of the world.

Yes, indeed, the world has changed. Yes, indeed, times have changed. Yes, indeed, we have a new form of imperialism called globalisation. Yes, indeed we must change. The question is change in what direction, for whose benefit and in whose interest. Edward Said says the basic question for the intellectual is: ‘how does one speak the truth? What truth? For whom and where?’ [7] The basic question today is whether this neoliberal, Thatcherite counter-revolution is for the benefit of the masses or the narrow neo-liberal elites? No social, economic and political change can be described, let alone analysed and understood, except from the standpoint of a particular class, a particular people, a particular nation and, universally, from the standpoint of humanity. And, certainly, the present cannot be understood and changed for the better without understanding better the past. No intellectual worth her name can condone bestiality, which is what imperialism is.

For us the lawyers, the least we can do is to ask, in the paraphrased words of Edward Said: How do we lawyers address authority/power: as professional supplicants, or as its unrewarded, amateurish conscience?

* This is an extract from a paper entitled ‘Lawyers in Neoliberalism’, presented by Issa G. Shivji, Professor of Law, University of Dar es Salaam, Tanzania on the occasion of his formal retirement. For the full paper, please click on the link below.

* Please send comments to

Notes:

[1] A. Claire Cutler, 'Historical Materialism, globalization, and law: competiting conceptions of property', in Mark Rupert and Hazel Smith eds. (2002) Historical Materialism and Globalization, London: Routledge.
[2] Action Aid International (2005), Real Aid: An Agenda for Making Aid Work, p. 22.
[3] Dr. Ali Mohamed Shein, Vice President, The Guardian, 10/06/2006.
[4] Tanzania Investment Centre, Tanzania Investor,

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