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Reprieve as Cabinet approves Bills to ease legal training

EDUCATION
By Augustine Oduor | May 13th 2021
Former Chief Justice Willy Mutunga poses for a photo with newly admitted lawyers to the bar at the Supreme Court [Tabitha Otwori, Standard]

Thousands of law students now have a new lease of life following a Cabinet approval of two Bills that introduce new players to offer post-graduate training.  

Further, the new Bills seek to review the admission requirements for future lawyers and law practitioners.

This cures the cyclic wars which have pitted Kenya School of Law and students seeking to admission for post-graduate training known as the Advocates Training Programme (ATP).

MPs now hold the handkerchief that will wipe out tears of thousands of students barred from practicing law after graduating from various universities.

The Standard has established that the Cabinet has approved proposed amendments to the laws that have locked out many students from getting admission to the postgraduate training for law graduates.

The ATP trains and prepares law graduates for the written Bar Examinations which are set, administered and marked by the Council of Legal Education (CLE).

Currently any individual seeking to join the legal profession in Kenya must sit and pass the Bar exam.

Presently, only Kenya School of Law (KSL) conducts the postgraduate training for law graduates, based on admissions criteria set out in the Act, and this has locked out many students.

This means that the post-graduate training, which since independence has been an exclusive mandate of the KSL, is mandatory for all lawyers, who wish to be admitted to the bar.

The good news, however, is that the Cabinet on Tuesday passed the amendments to the Kenya School of Law Act (2012) and the Legal Education Act (2012) which seeks review the admission requirements of students to all legal training programmes.

The proposed changes are contained in government sponsored Bills – The Legal Education (Amendment) Bill, 2020 and Kenya School of Law (amendment) Bill, 2020.

The Bills also seek to open a window for the CLE to vet and approve additional institutions to offer the ATP and also mandate them to set the minimum entry requirements for all law training courses.

There has been concern that only KSL is mandated to conduct the postgraduate training for law graduates.

The proposed changes to the laws now seek to also expand provision of ATP training in addition to the KSL.

The Cabinet want Section 8 of Legal Education Act be amended to expand the mandate of the CLE to include accreditation of legal education for the purpose of licensing of the Advocated Training Programme (ATP).

If approved by Parliament, the CLE will establish guidelines to accredit more institutions to offer the ATP, in addition to KSL.

This means that some of the public and private universities that meet the set CLE requirements may be accredited to offer the crucial ATP.

The decision by the Cabinet was advised by the firm recommendations made by a task force on Legal Sector Reforms set up by the Attorney General in 2017.

The team consisted of representatives from Law Society of Kenya, the Judiciary, the Office of the Director of Public Prosecutions, the Advocates Complaints Commission, the Kenya Law Reform Commission, the CLE, the KSL and the Office of the Attorney General and Department of Justice.

Chief Executive Dr Jacob Gakeri of CLE and Henry Mutai presented a joint memorandum that supported the new changes to the law to streamline training.

In their report of the taskforce on legal sector reforms, the team recommended that: “The conduct and structure of the ATP examination should be provided for under the Legal Education Act and not any other law to ensure that the liberalisation and devolution of the programme can be managed centrally from one legislative framework.”

This suggested that the KSL would no longer have the exclusive mandate of offering the ATP.

The changes got concurrence of the treasury CS and Attorney General as they have financial implications.

The task force also recommended that: “With a view to long term expansion and in order to decongest administration of the ATP examinations, CLE should look into expanding its capacity by establishing regional examination centres for administering Bar Examination consistent with international best practice.”

What will however come as a major relief to the law students is the Cabinet’s decision to approve amendment to the entry qualifications to law training.

Section 16 of the Kenya School of Law Act will be amended to read: “a person shall not qualify for admission to a course of study at the School unless the person has met the admission requirements prescribed by the CLE.”

Presently, admissions to the School is done based on KSL Act which gives emphasis to C+ qualification.

The new Bill now seeks to delete all the sections that mandate KSL to determine admission criteria and places the role on CLE.

The Cabinet also approved amendments that will make CLE the sole determinant of qualifications to all law training programmes.

Section 8(3a) will now read: “The Council; shall make Regulations in respect of requirements for the admission of persons seeking to enrol in all legal education programmes.”

This means that the CLE will prescribe admission requirements to all law programmes including ATP.

In their recommendation, the taskforce proposed that the minimum admission criteria to the Bachelor of Laws (LL. B) Degree Programme be a mean grade of C+ (Plus) in the Kenya Certificate of Secondary Education (KCSE) examination with a minimum grade of B Plain in English or Kiswahili or equivalent as determined by a competent authority.

Credit pass in a diploma in law examination from an accredited institution will also be accepted or at least three principal passes at an advanced level beyond ‘O’ Levels or an equivalent qualification, one of which must be in the English or Kiswahili language.

A degree from a recognised university will also be considered.

Over the years, many students have been locked out of law practice after the KSL rejected their admission on grounds that they did not meet the minimum university entry requirement of C+.

KSL admits about 1,800 students every year to undertake the ATP which costs Sh145,000. This includes the cost for nine units, library fees and pupillage supervision fees.

However, it is emerging that students who did bridging courses to upgrade their qualifications or those who undertook diploma courses and advanced to degrees are never given chance to undertake postgraduate training for law graduates.

Failure to be admitted to these programmes has led to lots of pain among law graduates and court cases, most of which have been won by students who pitched strong cases against their rejected admissions to the programme based on their qualifications.

Overall, there is a new plan to review legal training with various proposals made to streamline the process.

The ATP examination as currently constituted are administered under a structure where orals and projects constitute 40 per cent, a sit-in examination of 60 per cent and pupillage of six months.

The taskforce recommended that orals and project examination components as modes of assessment should be abolished and be integrated into the training methodologies for the ATP at the Kenya School of Law.

“The administration of orals and projects is undertaken as a training/technical component and has been a challenge due to the number of students involved,” reads the report.

Team also proposes that the structure of the Bar examination be modified to require candidates to first attend class sessions, then pupillage, then sit the Bar Examination.

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