OPINION: The desperate path a young Kenyan lawyer treads
By Omondi Were
At the beginning of February, the Council of Legal Education released results for the 2018 cohort of students who had done the bar examinations. In that group of students, only 18% managed to qualify for admission to the bar once they undertake the mandatory pupillage programme.
There was great hue and cry from several quarters as has been a yearly occurrence whenever the bar examination results are pronounced. One of the major newspapers with national circulation even had a screaming headline that pointed to there being a crisis of immense proportion in the area of legal instruction in the country.
Legal education in this country is clearly on the edge of a precipice, and this latest realization of mass failure should be a moment of introspection for all the parties involved. Every year, as if on cue, mass failure is realized in the outcome of bar examinations and the institutions responsible immediately go on a defensive overdrive.
The Council of Legal Education, predictably, go on to release a press statement to the effect that they are only an examining body and that instruction is left to the Kenya School of Law and the respective Universities.
The school of law then passes the buck back to Universities that they are producing hordes of half-baked graduates, and the Universities – in turn – retort that the teaching of advocacy is not their role; that that they are mandated to teach the theory of law.
At the center of this needless blame game is normally a young hopeful law student whose only lifelong wish has been to be an Advocate of the High Court of Kenya and to make something out of their lives in the legal profession: a dream that was sold to them from high school.
What they never know from the beginning is that the totem pole is designed to frustrate them for the rest of their legal career.
At the level of choosing careers, the main influence is to always make a career choice based on the top four career list that law always seems to feature in as a glorified career. As a bright student, you are forced to choose law or medicine or engineering because if you do not then it is impressed upon you that your life will no longer be characterized as successful.
Right from an undergraduate level, pursuing a career in law seems designed to be an extreme sport. At most of the public universities, despite law being a course that requires lots of reading, there are very few meaningful books with any jurisprudential value and the quality of legal education at that level is already hampered.
You walk into the University of Nairobi law library today for example and you are met with a plentiful of law review books that existed when only white lawyers were practicing law in Kenya and very few books that have any value on the current legal regime in the country and continent.
The delivery systems at that level are also quite pitiable because legal tutors are chosen based on nepotism rather than merit, on corruption rather than value, on any metric but not what’s important.
At my undergraduate level, I remember so many tutors who would walk into a class and rant that their work was to point the student to where the law was and it was the duty of the student to find the law and read it, then they would read a list of the books they wanted the student to read. If it’s not that then its missing marks or lost examination booklets or certain lecturers just frustrating students intentionally by soliciting for sex for marks, especially to the female students.
At the end of the four year course wrought with cramming old English case laws and mundane legislative instruments, you graduate an already frustrated student and that is if you are lucky enough.
When you transition to the Kenya School of Law, the shock is always on you.
At the onset, I remember my greatest shock was the fact that the tuition fees required at the school for only eight months of study was higher than the tuition fees I required at the University of Nairobi for the entire four year training and yet both institutions are public parastatals. Just on the issue of fees alone, most students find they are already locked out and have to crowd fund desperately from the public or do a horde of odd jobs to raise tuition fees.
At the end of the one year stint at the school, there is very little value for money because the school is faced with more of the same frustrations and blockades experienced at the university: be it very poor delivery of content, few coursework books to marinate yourself with, instructors intentionally frustrating students over mundane matters and a completely flawed examination regime that does not factor in a fair playing ground.
The CLE bar examination regime is divided into three parts: Project Work (20%), Oral Examination (20%) and a sit in examination (60%). At the end of the first term, you are lumped into a group of around fifteen students and given nine project coursework topics to undertake in a very short period of time together and with very strict deadlines and this is set by different instructors on their whim and assessed by them with their preconceptions and without any room for appeal.
The oral examination is even worse because it is discretionary on the different examiners to ask you what they woke up feeling like asking.
I remember being asked a question above my level on the intricacies of the Chinese tax regime while my friend was asked what she felt about lawyers always being required to be in official clothing and if it was necessary. We were all assessed in the same way. I kid you not, I was as mad as you are now because that erodes the very idea of a fair playing ground for all students.
By the time you reach the bar examinations proper, you are frustrated already but are still met with incoherent problem questions, questions outside the set syllabus guide (and this a favorite habit) and invigilators sent to create a bothersome examination environment.
By the time you are done, you are sure you have done the very best under the given circumstances but it never escapes you that CLE may fail you and ask you to pay a figure same as the entire tuition fees for a remark.
I remember asking Dr. Jakob Gakeri the CLE CEO how that made sense to the institution he runs and his answer was curt: “The money doesn’t go to my pocket. It goes to your government.” That he felt that was any sufficient an answer for an institution head made me stop on my tracks.
To change the crisis in legal education in this country, the flawed examination regime must first be addressed and a regime that encourages fair play be introduced. Similarly, unless they are willing to work in synergy, the redundancy of the Council of Legal Education and the Kenya School of Law should be addressed once and for all and if possible the two institutions be merged. Taskforce after taskforce have asked for this, and for CLE to develop a standard Advocates Training Programme syllabus and yet they have never taken that to book as they sit pretty.
In the examinations administered at the end of last year, a mandatory question in the exams was out of the set school law coursework syllabus and when several legitimate complaints were directed to Dr. Gakeri, he downplayed the issue that it was the duty of the student to read everything and made it look like it did not matter suggesting he was merely a titular head at the institution, characteristic of the man who derived so much joy failing students even at his stint at the University of Nairobi and who a majority of students have no kind words for to the very moment.
In a 2017 Senior Counsel Fred Ojiambo-led taskforce, the latest of the many taskforces, it was revealed that there are over eight thousand students who had failed the bar exams at the first attempt over the last seven years and who were still attempting the exams; a staggering 63% of the candidates who had passed through the system during that period.
And yet even with this realization, the taskforce still put the blame on the student by suggesting that there should be a limit on the number of attempts the student should be allowed to take, essentially saying gate-keeping was necessary to block out certain students who clearly did not deserve to be advocates.
To muddy the waters even further, a student who has passed their bar exams at the first attempt is still not out of the gate-keeping cage.
A pupillage programme is a mandatory requirement before one can be admitted. Finding pupillage placement by itself should be included in the 1000 ways to die because it is another extreme sport by itself. When you find one, you are constantly harassed, mistreated and subject to the worst working conditions by your senior pupil masters.
The largest chunks of pupils, especially in Nairobi, are paid lower than the minimum wage and yet they are made to do the heavy lifting for the law firms they are training at by working longer hours and sometimes under time sheets and CCTV monitoring. If not, they are constantly sexually harassed by the seniors in the profession and are treated with contempt by sometimes being made to act as a messenger.
The pay also doesn’t come when the month runs out, you are paid depending on the capricious whim of the pupil master: most are not paid at all and are told they can leave if they feels like. They stay because they are long on desperation but it is very clear to them from the onset that there is little prospect of ever making anything of themselves in the profession: and yet it is on their very shoulder that the profession rests as they do all the working.
In the designed system, the interest of the young lawyer should be taken care of by the Law Society of Kenya, a body incorporated by an Act of Parliament to look into the very interest of lawyers and regulate practice in the country.
Over the preceding years, the cries of young lawyers and advocates have fallen on deaf ears in so far as the society is concerned. Today, the society is choking under a cartel capture and seems to have become an appendage of the deep state. The society has a young lawyers forum that is headed by a team that spends its time organizing, attending and taking part in fancy seminars in star rated hotels than actually sitting down to listen to the plight of able young advocates in the country.
It is a sad state. The society must begin to address the issue of terms and conditions for young lawyers in this country.
A few days ago, I saw an embellished advert from this big corporate looking for a young advocate with two years’ experience and I was struck by their offer to pay Kshs. 35000 as gross salary per month. That after six years of schooling and two years of experience, you are still worth a dollar and a penny, the equivalence of money an Uber car owner makes in a fortnight.
How late am I to make a career change? What do you guys think of farming?
The writer, Omondi Were, is a Nairobi-based lawyer interested in Public Governance and Youth Affairs.