Shock as new graduates barred from Law school
By Augustine Oduor | May 17th 2021
Hundreds of new law graduates from Kenyan and foreign universities have been denied admission to the Kenya School of Law for the mandatory Advocates Training Programme (ATP) after the institution determined they did not meet minimum requirements despite acquiring a Bachelor of Laws (LLB) degree.
Some of the affected students appealed their rejection to the Council for Legal Education (CLE) which approves, and accredits all law degree training schools and programmes in Kenya for remedy.
However, the Council dashed their hopes by admitting that under the current legal regime, the Kenya School of Law has the exclusive mandate to determine criteria for admission to the ATP.
“While the Council fully appreciates the predicament occasioned by this conflict in the law, your recourse lies with the Kenya School of Law...,” says Dr JK Gakeri the CLE Secretary/CEO in a letter to the five LLB holders that sought the Council’s intervention after rejection by KSL.
CLE cites its own founding law, Legal Education Act 2012, to determine that although it is mandated to determine the criterion for joining the ATP, the Kenya School of Law Act 2012 and its regulations are superior statutes when determining admission to the school.
In a letter washing its hands off the matter, CLE alleges that there is a conflict of laws between the two Acts as far as admission to the ATP is concerned but also admits that courts have, consistently ruled that, as the law stands the school can only admit students on the basis of its founding law.
CLE also cites various court rulings that have upheld KSL’s supremacy in this matter.
Many of these graduates entered the LLB programme through a circuitous route after obtaining either a diploma in law or related fields which they used for admission to the LLB programme in Kenya’s public or private universities offering law degrees.
But, traditionally, admission to the ATP is denied to law graduates who do not either possess a grade C+ and a grade B in English or Kiswahili obtained at the Kenya Certificate of Secondary Education examination.
This means that some law graduates joined the LLB programme, although they had not scored these grades but on the strength of remedial certificate and diplomats that enabled them study the LLB.
Significantly, this path of progression is allowed under the Legal Education Act 2012 and its regulations of 2016. It is now apparent that some public and private universities launched their law programmes without regard to these court rulings or the apparent conflict of laws.
Some universities appear to have read the law selectively, when launching their law programmes, solely on the Legal Education Act 2012 and its 2016 regulations that, among other things, allowed admission to LLB for candidates who had not scored grade C+ or above in the KCSE exam.
But still, courts have also ruled that failure to meet the strict criterion of admission to the KSL under the KSL Act 2012 does not invalidate LLB degrees obtained that do not meet the criterion for admission to the school.
Courts have also held that the LLB programme need not always lead to one practicising law in courts or as an advocate of the High Court of Kenya, which can only be achieved through ATP training.
CLE’s admission and inability to help these graduates attests to the age-old contest between the Council and the School over control of advocates training in Kenya.
Two years ago the National Assembly attempted to cure this contest by amending the two Acts through the abortive Statute Law (Miscellaneous Amendment) Bill 2019.
The proposed amendment sought to end the school’s monopoly of the training in Kenya by amending Section 4 of the KSL Act to allow other institutions to offer the programme.
The amendment also sought to transfer determination of admittance to the training exclusively to the Council.
If the amendment was passed the Council would also be the sole administrator for pre-bar examinations offered to LLB graduates from foreign university, a function, currently exclusively enjoyed by KSL.
The amendments lapsed for unknown reasons. According to former Leader of Majority in the National Assembly Aden Duale “the lawyers within Parliament ganged up to defeat the amendments.”
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 to 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 new Bill now seeks to delete all the sections that mandate KSL to determine admission criteria and places the role on CLE.
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.
What will also 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.”
However, it is still not clear if students already barred from KSL will immediately benefit from the amendments if they are passed by Parliament and become law.
Until this conflict of statutes is solved through the Legislature this situation is bound to persist.
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