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Revising our outdated justice system (Part III)

Tuesday January 8 2019

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Gina Yashere says in jest that in African families a child has four career choices: doctor, lawyer, engineer or disgrace to the family. When Yashere decided to become a comedian, she immediately slipped abysmally into category four, and thus became a ''disgrace to the family''.

Some professional colleagues often tell me that recent graduates (all of them, including lawyers, doctors and engineers) are a ''disgrace to their family''.

I disagree! I have found among millennials, amazing young men and women of character, deeply informed, excellent writers, sharp like never before. Men and women who will rock the world; young souls who have already made a deep impact in their fields.

Truth be told, I have also met young graduates who are disgustingly superficial. They cannot read and think coherently. They are lazy, uninterested, uninformed and unfocused. Their highest dream is to become wise by osmosis and billionaires thorough GoFundMe. Their horizons and professional ambitions are attached to the tip of their noses. They want an Easter Sunday without a Good Friday.

We (parents, educators and government) have let this happen through our apathy and lack of drive for change. Legal education is crying out for reform in four key areas. The change is possible and doable; there is no rocket science.

Legal education is crying out for decent facilities

First, there are law schools with many students but no libraries, absent lecturers and administrators, rundown lecture halls…when it rains classes are cancelled. How could these graduates become honest lawyers? How can they be wise men and women ready to fight for the common good?

We have sacrificed quality on the altar of quantity, and worshiped profit maximisation. Lecturers are poorly paid and need to make a living out there, in practice. This has deprived many law schools of dedicated lecturers.

The consequence is disastrous; teaching is reduced to passing on pragmatic essentials such as the technicalities of a spiritless law, how to manipulate the system, how to delay justice, adjournment tactics and how to confuse the judge. After all, the best lawyer is not the fairest one, but the one who wins more cases…at any cost.

We have forgotten ethics and those soft skills that will make or break our future graduates. Thus, young lawyers easily become learned hitmen, who have detached the ideal of justice from both education and the legal process. They are smooth operators who can swiftly abuse an archaic system for profit-making, not justice. They rush like hyenas for their prey- any unsuspecting client.

Today, we have around 4,000 lawyers in Kenya whose core business is ambulance- chasing. They make a living by extorting unsuspecting victims, often in collusion with corrupt police officers.

Full-time lecturers fooling themselves

Second, ''full-time'' lecturers who hold more than one ''full-time'' job are fooling themselves. A full-time lecturer who is grass-hopping between different campuses or trying to combine teaching with practice does not have time to prepare lectures, to innovate, to mentor, to create a school of thought, to seek grants or to dedicate any time or energy to such a demanding activity as serious research.

Academic grasshoppers will sooner or later become mediocre and suffer from intellectual stagnation. They will never publish, but simply perish, in a traffic jam.

Legal education desperately needs a dedicated body of scholars who are really fulltime; lecturers who dedicate time and brains to training students on the theory and practice of law, and assess each student’s developmental stage with respect to the core competencies.

Do not get me wrong, law schools do need people who are both teachers and practitioners, for they enrich the class experience with real-time cases…but these people are called ''part-timers'' with ''part-time salaries'' and they dedicate some hours per week to lecturing. They do this very well and competently.

A new approach to the curriculum

Third, we need to revise our class approach, teaching techniques and curriculum. Legal education is undergoing an exciting worldwide transformation. Four years ago, I recommended reading Neil Hamilton and Sarah Schaefer’s paper, ''What Legal Education Can Learn From Medical Education About Competency-Based Learning Outcomes Including Those Related to Professional Formation and Professionalism.''

There is still a clear worldwide shift in legal education towards apprenticeship. Hamilton and Schaefer advised that we had to move away from a structure and process-based curriculum, defined only by the expert judgment of faculty, toward empirical research on the actual needs of clients and lawyers in the legal system, and a competency-based curriculum and assessment of each student’s developmental stage (including moral problem approaches) with respect to the core competencies.

Computers will soon outshine lawyers’ unskilled and perfunctory tasks. Therefore, education needs to shift towards problem solving models. Students in small groups analyse their surroundings and choose a legal challenge related to the subject in question. They carry out empirical studies, conduct surveys and collect data. Then analyse their results vis-à-vis historical or cultural factors, and propose workable solutions.

For example, students of administrative law may come up with proposed amendments to the county by-laws to resolve health related challenges. Students of constitutional law may draft a constitutional amendment bill which is well researched, etc.

The result will be a lawyer with the passion and commitment of a good doctor, not just for the sake of money, but for the sake of justice and the common good; the genuine and sincere good of his client.

Perhaps KSL’s time has come to pass

Fourth, when the teaching of theory is merged with the training of practice at university level, our Kenya School of Law (KSL) will become redundant as a bar training college; and the Council of Legal education (CLE) would administer the bar examination to any LL.B. graduate from a recognised university.

KSL would cease to exist as a bar school. After all, it is asphyxiating itself trying to train 3,000 graduates per year in practical skills and lawyering. With such numbers, this ''practice'' training is an impossible task. No wonder we have an 80 percent national failure rate.

It is also deeply saddening that there are a high number of LL.B. graduates whose professional dreams are ruined because they can’t afford the high fees charged by KSL.

The change is possible

Universities will need to redesign their curricula to teach legal theory and practice. This won’t happen unless they improve quality and adhere to strict admission criteria. Thus, anyone with an LL.B. should be allowed to sit the bar exam which would then be administered by the CLE to any holder of an LL.B. from a recognised university.

What should be done with the bar school’s fantastic and huge facilities? There are several possibilities: First, host the Nairobi Centre for International Arbitration, which is currently looking for a venue and for which the Law Society of Kenya (LSK) fought so much. Second, train para-legals and host LSK executive education courses, which are in high demand. Third, why not, relocate the Judiciary Training Institute (JTI) from Coffee Garden Drive, thus saving tax payers millions in rent.

To be continued next week. We will look at the court process!

Dr Luis Franceschi, Dean – Strathmore Law School, [email protected]