Opinions Sat, 15 Jul 2017

Parliament must step in to reform legal education

My attention has been drawn to a statement to be issued by the Honourable Dominic Ayine, MP for Bolgatanga East, presumably aimed at asserting Parliament’s oversight authority over the General Legal Council (GLC).

I must also acknowledge his speech, at the Bar meeting in Kumasi two years ago, drawing attention to the illegality inherent in the Council’s admission processes. The Supreme Court has subsequently declared the admission processes and exclusion of qualified students as unconstitutional.

Unfortunately, and in a devastating blow to the rule of law, the illegality persists even though the Court’s declarations were made a month ago.

It goes without saying that no branch of government can order anyone to violate the Constitution. This creed must be etched in our collective conscience. Alas, students who are qualified under the law for automatic admission to the School of Law are being compelled to take an unconstitutional examination, surrounded by an army of armed policemen, to decide who qualifies for admission.

It is almost as if the Supreme Court’s words fell on deaf ears, contrary to the constitutional command that every action pronounced as unconstitutional is automatically void!

Parliament should seize Dr. Ayine’s initiative and step in immediately to supervise the Council's modalities for the orderly admission of all the qualified students.

The plan should include the deployment of virtual schools, the existing faculties, private schools, etc. and should provide timelines for giving qualified students the opportunity to complete their legal education.

We have to be creative and understand that unusual times call for innovation. We cannot start solving this problem if we accept the current obsolete model as a binding constraint.

It must be kept in mind that Makola, the current model, is a 1958 solution to a problem of educating a handful of law students. In today's world of assorted Law Faculties and electronic learning platforms, it is entirely unnecessary for students to converge at Makola or any central locations to be taught evidence, procedure, taxation, conveyancing, etc.

The Constitution is clear that administrative bodies’ actions that are deemed unconstitutional by the Supreme Court must stop immediately. This is why the GH¢ 300 million district election was cancelled in 2015 on account of a defective constitutional instrument. Neither the public interest nor the Supreme Court can save an unconstitutional act.

Prospective overruling applies to laws or activities that were legal at the time that they were done. For instance, the effect of the declaration that night soil removal violates human dignity and is therefore unconstitutional can only be prospectively (not retroactively) applied.

The Court cannot order the declaration to look backward because the activity was legal until it was declared otherwise. Further, practical considerations alone will require some time to build the needed replacement toilets. As such, the declaration’s effect can only look forward (prospectively).

The prospective overruling doctrine does not and cannot operate to sanction administrative bodies’ illegal actions, especially when the illegalities are the source of pending disputes.

The law school entrance examination, unlike the toilet, was never legal and remains so at all times. So too is the Independent Examination Board, the illegal body set up to write and administer the illegal entrance examination!

Sadly, that illegal examination was administered again, amidst heavy police security, and will, unless Parliament intervenes, be used to rob more people of their fundamental human right.

An administrative illegality can never be blessed to continue into the future as is happening here. That students are conscripted to engage in unconstitutionality and denied their substantive interest in their professional education is an outrageous attack on the Constitution that should surely interest Parliament.

There is no room for such an outcome in a country that values the rule of law!

I, therefore, applaud Dr. Ayine for his forthcoming statement. But it must come soon! Time is of the essence and nothing is more urgent than arresting the admission crisis at the school of law, brought about by the GLC’s strategic blindness and tactical inertia.

The nation is obliged to figure out an orderly and quick way of making whole the 2,000 or so students who have been constitutionally wronged by the GLC!

In my opinion, the GLC has failed miserably. It can't do the job.

It has shown no strategic ability to grow the School of Law to accommodate qualified applicants, notwithstanding that the growth was entirely predictable. The Council cannot even follow its own regulations.

Its record on growing the School is abysmal when compared to that of its peers in Kenya, Nigeria and South Africa. It has failed its statutory mission and the country should no longer countenance its nonperformance?

Therefore, part of the conversation should be about restructuring the Council. Parliament needs to amend Act 32. The GLC is dysfunctional and must be replaced with a Council for Legal Education (CLE) that is responsible for administering a Bar examination, which will be opened to anyone with an LLB+, a degree or degrees that incorporate(s) the current year spent at Makola.

In effect, students should take all courses at their Faculties, after which they become automatically eligible to apply to take the CLE administered Bar examination.

Inter alia, the CLE should be in charge of licensing and accrediting the Law Faculties, including defining core courses, degree requirements, and emplacing and enforcing quality assurance systems.

The Deans of all the Faculties should be on the CLE together with nominees from the Judiciary, Attorney General, the Ghana Bar Association and the Ministry of Tertiary Education.

It is in this vein that I also urge Parliament to be on the lookout for and annul any hurriedly drafted legislative instrument aimed at legalizing the much maligned and universally condemned entrance examination and interviews.

The ill-considered and gravely flawed socio-economic phenomenon of creating terminal unemployable LLB degree holders must never be legalized in this polity.

We must give anyone who has an LLB degree the opportunity to take the Bar examination, which, if successful, qualifies them to practice law in this country. There is no sound policy ground for denying anyone this opportunity!

Once again, I hope parliamentary actions come soon enough to halt the impending unconstitutional interviews and emplace an orderly system to accommodate the backlog created by the GLC's illegal and unconstitutional activities! I have no faith in the GLC and, in my opinion, its members have lost the moral grounds for remaining in office.

Columnist: S. Kwaku Asare