If you wish to study and practise law in Kenya, the chances of failing the Bar examination are frighteningly high.
You are unlikely to earn a practising licence even after spending 18 months in the Advocate Training Programme (ATP). The examination will also set you back Sh47,000 in fees.
The picture comes into perspective when you consider that 80 per cent of those who sat the tests in November 2018 failed.
When the Council of Legal Education (CLE) released the results last month, uproar greeted the “falling” standards of education. Some 1,572 candidates sat the examination but 308, or just 19.59 per cent, passed.
Elizabeth Bulo – not her real name – hopes she will be lucky when she makes a third stab at the examination.
It has been two and half years of trying to get admitted to the Bar. Of the nine courses offered, she has passed five so far.
“It is frustrating, considering all my effort, time and resources,” she said.
Ms Bulo still depends on her parents for subsistence.
Some students have taken longer and spent more money attempting to be advocates. This has prompted players to raise questions.
Kenya School of Law chief executive Henry Mutai said more students pass the examination compared to previous years.
“Focusing only on those who pass the nine units at a go is misleading. Students have five years to pass the units by the time they petition to be admitted to the Bar. Those who do not have to register afresh,” he said.
Candidates sit the tests after going through 12 months of professional training and another six undertaking pupillage at a law firm under supervision
Mass failure registered in the last eight years has prompted investigations by the Senate Committee on Justice, Legal Affairs and Human Rights, the Law Society of Kenya and the Ethics and Anti-Corruption Commission.
Dr Mutai said he has been never been questioned by anyone on the issue. “We are open and transparent,” he told the Nation.
According to sources within the legal circles, rivalry between the school and CLE is to blame for the way the tests are conducted.
The sources say mass failures started with the separation of the two.
CLE became operational in 2012 but officially separated from KSL in January 2014 following recommendations of a ministerial committee.
Dr Mutai said the school and the council “are as close as can be for we are joined at the hip.”
He adds that KSL prepares a course outline at the beginning of the year and shares it with CLE. The council then gives the course outline to its examiners.
Five public universities presented 1,010 candidates but only 229, or 23 per cent, qualified for the award of the licence.
Six private universities had 501 candidates but only 72, or 14 per cent, passed.
Foreign institutions entered 61 candidates but only seven (11 per cent) graduated. Some 27 foreign universities were represented.
Kenya has more than 15,000 advocates, according to the LSK. For one to be an advocate, he or she must be an LSK member with a valid practising permit.
“Law is supposed to be passed, not failed,” LSK President Allen Gichuhi said during the ceremony to admit 62 advocates to the Bar at the Supreme Court on July 3.
Dr Mutai said a deeper analysis of the results is necessary.
“Someone who passes eight units is not in the same position with one who fails in seven. We have always had resits. Resitting does not mean one if a failure,” he said.
The units used to be six but were increased to nine in 2009.
Dr Mutai said the school has asked the Kenya Institute for Public Policy Research and Analysis to scrutinise the results over time.
The report is expected out by mid-next month.
He added that an internal analysis has shown a correlation between KCSE test results, the bachelor’s degree and performance in the Bar examination. Dr Mutai cited five candidates failed the nine units at ago, saying they scored C+ at KCSE tests.
In the November Bar examination, only 57 students had an A score at KCSE. Of these, the worst performer had four passes.
“It does not mean that someone with a C+ is not capable of getting nine passes. Some 11 with C+ passed every single paper,” he said.
Performance, he added, changed with the lowering of the admission requirements and the emergence of many universities teaching law.
“When there were few law faculties and smaller classes, only the very top were admitted,” he said.
The public universities represented in the examination were Nairobi, Moi, Kenyatta, Kisii and Jomo Kenyatta University of Agriculture and Technology.
Students who wish to be advocates after their undergraduate studies are required to do the ATP.
The Bar examination comprises an oral test weighted at 20 per cent, project work (20 per cent) and a written examination (60 per cent).
The courses are: Civil Litigation, Criminal Litigation, Probate and Administration, Legal Writing and Drafting, Trial Advocacy, Professional Ethics and Practice, Legal Practice Management, Conveyancing and Commercial Transactions.
One must score at least 50 per cent on the aggregate of the project work, oral and written examination. He or she should also satisfactorily undertake a supervised pupillage.
Bar examinations are difficult the world over. In 2016, a lecturer at a local university failed three units sat.
“The examination is not an indication of intelligence. It may be more of a test on the practical tenets of law and the individual’s ability to recall these,” Mr Sekou Owino, the head of legal department at Nation Media Group said.
Failing the tests is costly. To resit a unit, one parts with Sh10,000. Remarking is Sh15,000 a unit.
A don said the weak link is the lack of a uniform curriculum.
“Teaching is done by KSL while CLE sets the tests. Questions are often set from areas not taught,” the professor, who declined to be named, said.
“Law is very wide and you cannot set...the exams without consultation. There is need for a proper curriculum. Teachers need introspection when 80 per cent of their students fail,” he said, adding that CLE, at times, hires consultants not conversant with courses.
This view was supported by a number of students.
“The exam and the results betrayed the learning process. Most top students at university did not get the nine passes,” Mr Topua Lesinko, who passed all the courses at first attempt, said.
Mr Alex Waweru said the examination “should not be a monster as the lawyers have already gone through university and KSL”. He passed the test after two attempts.
“The council needs to go beyond what is taught at KSL. It should also train the markers,” he said.
Dr Mutai decried the general lack preparedness.
“Issues of communication skills are a concern. There are students who cannot write a simple letter and the time we have with them is short,” he said, adding that it might be a problem stretching back to the undergraduate studies and even high school.
Lecturers contacted, however, felt they have done enough to present students for the examination.
“You cannot keep blaming the universities. We don’t classify students according to their previous schools. It is our duty to train them,” one said.
When CLE chief executive Jacob Gakeri appeared before the National Assembly Public Investment Committee earlier, he said the council has no capacity to set and mark exams but relies on the goodwill of professionals from different disciplines.
The monopoly of KSL in training advocates may come to an end if Parliament passes a bill that seeks decentralise this function.
Mr Gichuhi says the idea will go down well with devolution.
“KSL has about 2,000 students and the ratio of lecturers to learners is appalling. It is difficult to impart knowledge that way,” he said.
“All we can do is to ensure we have proper standards and sufficient personnel.”
The LSK boss attributed some problems students face on the scope of the course material.
“Some say the time to cover the content is inadequate. You could be asked questions on a topic you never trained on,” he said.
A case in point is Commercial Transactions, one of the subjects that is poorly performed at the Bar examination. It has evolved because of the new Companies Act.
Dr Mutai said the bill was not properly drafted as it seeks to remove the element of training from KSL.
“We are ready to deliver on our mandate but if as a matter of policy. We can decentralise ourselves and open campuses elsewhere,” he said.