Legal education is crying for reforms

Friday October 6 2017

By LUIS FRANCESCHI
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Legal education reforms are urgent and necessary. Traditionally, studying law meant joining an exclusive club, an elite.

It brought in a radical change, for law changed a person’s status for ever, and in a short while the pupil became a learned friend. Law, with medicine, engineering and a few other selected careers, had an aura of sacredness, exclusivity.

As a lawyer, whatever you said and did made a deep impact on friends and society. To be a lawyer meant a change of lifestyle; becoming a lawyer enlarged your pockets.

So seriously sacred was career choice that Gina Yashere, a brilliant British comedian of Nigerian descent, says that in African families a child has four career choices: doctor, lawyer, engineer or disgrace to the family.

In a jest, Gina concludes that she joined the fourth choice when she decided to become a comedian.

Law was for the chosen few, who happened to be mostly men. The late Janet Reno, US Attorney General from 1993 till 2001, explained that “In 1960, when I graduated from college, people told me a woman couldn't go to law school. And when I graduated from law school, people told me, 'Law firms won't hire you.” Janet proved them wrong… She was truly the exception that confirmed the rule.

Times have changed; reality has changed, but our minds and rules remain in the past. We want to produce modern lawyers with an outdated system, modern professionals with dead tools.

YOUNG LAWYERS

The Kenya School of Law (KSL) has just launched an endowment foundation. This wonderful event marks the end of PLO Lumumba’s tenure as its director. PLO (as we usually call him) did a wonderful job.

He and his team streamlined the School's accounts, institutionalised the first graduation ceremonies and started a much-needed endowment fund. Many young lawyers fall out of the system because they cannot afford the high fees charged by the School.

The Kenya School of Law, or KSL as we usually call it, was established in 1963 on Valley Road, as a department of the Attorney General’s office. By chance, or fate, this new school was born in what had been Nairobi Hospital’s maternity wing. Those premises, which were designed to bring babies into the world, were now bringing advocates into the country.

In 1963, 11 students were admitted to KSL. These were the babies of a new legal era.

Today, KSL admits annually almost 2,500 students from all law schools in the country and beyond. It is the country's only bar school and is expected to do the impossible.

Its classes are unmanageably large for practice training, which has turned KSL into a largely irrelevant as a school of legal practice.

The numbers are so large that students cannot do individual assignments. Homework is always done in groups of 10 to 13 people.

ANCESTORS FROM CAMEROON

Diligent students bear the burden of joyriders and the just pay for the sinners. KSL’s absurdly bulged numbers make it impossible to teach practice as it must be taught, and so it has become a school where an extra year of theory is taught.

Its 2000-plus students are packed like sardines in huge classrooms. They learn by rumours. “What did he say…what did he say… what did he say,” and so goes the message, until the end of the class. They are truly daily rallies.

In 2016, the Council of Legal Education tightened the screws of the bar exam. This meant that for the first time, the exam was set by the Council while the teaching was done by KSL. The result was a 91 per cent failure rate.

The Council was blamed and the School was blamed. In turn, the School blamed universities, and universities blamed 8-4-4 and 8-4-4 blamed parents. If this keeps going, we will soon be blaming our ancestors from Cameroon.

I am morally certain that the Council of Legal Education has taken utmost care in administering and marking the bar exams with fairness.

I am also aware of the painful efforts KSL has made in upgrading its facilities and teaching methods. They have great lecturers with an overwhelming number of students.

The Council of Legal Education has been branded as an impossible and unfair filter. The Kenya School of Law is blamed as a trap, financially and academically.

The truth is that the Council’s exams are carefully set and fairly marked, but KSL has been given an impossible mission. To teach legal practice to such a huge, heterogeneous crowd is impossible.

To remedy the situation, KSL introduced a quick fix to manage the tsunami of new law graduates; a pre-bar exam.

TALENTED AND BRILLIANT

In the short term, the pre-bar may resolve the avalanche of arrivals at KSL, but in the long run this creates a most unfair situation for law graduates who may see themselves irremediably left out from law practice.

This is like training medics who will never be doctors.

Additionally, KSL realised that before teaching practice, they had to teach the theory that many students never got at university level. This marked the ultimate demise of ‘practice’ teaching.

If the late Tudor Jackson resurrected today and transposed himself to Karen’s KSL Campus he would die again of a heart attack, after a few seconds.

Anyway, the blame game goes on while the students keep failing miserably.  There are so many talented and brilliant staff members at KSL, but they have been given an impossible mission.

Times have changed, but we have not. Bar schools were founded to train advocates in practice. The art of advocacy, oral skills, cross examination, legal drafting. Bar schools were there to transform lawyers into advocates.

Numbers have swollen, our population, our economy and our access to education have grown in leaps and bounds. But our institutions have remained the same.

A 91 per cent failure rate is not a problem for the Council or KSL or university education or 8-4-4. It is a problem of them all, it is a problem of the system, but we are reluctant to accept it.

Legal education needs an overhaul. We need to rethink it and redesign it. It must be fair, structured and competitive.

How could we entrust such an unjust system with manufacturing the paladins of justice?

PARALEGAL TRAINING SCHOOL

The time has come to rethink the Kenya School of Law as a practice school. Perhaps, it should become a university or a technical paralegal training school. Let the Council set the bar exam and shift the subjects taught at KSL to each university law school.

Students would do pupillage at established law firms and corporations immediately after finishing university. Once pupillage is over, they qualify to sit the bar exam, administered by the Council in collaboration with the Law Society, which is the ultimate club bringing together all practitioners.

It would also be the work of the Council to ensure that law schools teach properly. For example, university schools with a bar failure rate above 40 per cent would risk losing their teaching license.

Norm Sherman is “multi-talented master of all things weird and wonderful. In addition to founding, hosting, and producing the Drabblecast, hosting and co-editing Escape Pod, and creating his own original music, he also runs a non-profit organisation.” He graduated as a lawyer.

Sherman always said that, "Good law schools teach you to think like lawyers. But top law schools teach young people to think; just to think. And that makes a potentially great lawyer."

To make great lawyers is the work of all legal stakeholders. Universities, the Law Society of Kenya, law firms and the Council should join hands in a bid to build a fairer, more comprehensive and thorough legal educational system.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi