On 9th December, 1993, the Attorney General Amos Wako appointed a task force to deliberate and give recommendations on the status and management of the Kenya School of Law. The task force, led by the Justice A.M Akiwumi, had ten most distinguished lawyers as members submitted its report in August, 1994.
The seventy-page report was a comprehensive look at Kenya’s only school of law and included recommendations on the future working of the school and a draft bill, The Council of Legal Education Bill. This bill is intended to be the legal basis for the establishment of the Kenya School of Law and the appointment of the Council of Legal Education.
The Council of Legal education Bill, it is expected, will solve the numerous management problems that have always been faced by the Kenya School of Law. Since its establishment in 1963, the Kenya School of Law has been afflicted by inadequate facilities, under staffing, under funding and a poor curriculum. These problems have become acute over time and presently the school reels on the verge of closure.
Originally, the school premises were designed as a maternity hospital. It was modified to accommodate a law school with a capacity of seventy-eight students. Today it has over three hundred law students in every one year.
Immediately after its establishment the school became the centre of a heated argument between the Law Society of Kenya and the Colonial Government in Kenya. The government wished to establish a school in which Africans could obtain local qualifications to join the legal profession. The purpose was to promote African scholarship in law and to prepare the Africans to take law practise in Kenya upon independence.
The law society was then under the control of English barristers and solicitors and they were not particularly enthused by the idea of the creation of a local system for entry into the Bar. When the government insisted on establishing the law school, the society argued to have the school under its control. The government instead placed the school under the Attorney-General’s Office.
The result of the haggle and tussle was to create a school of law that has no legal identity and no definite charge. In respect to administration, the school is controlled by the Attorney-General’s Office while in respect to academics, it is controlled by the Council of Legal Education.
The report of the task force observed that “Unlike many similar institutions in the Commonwealth, the school does not enjoy autonomy from the government or have corporate status enabling it to hold property, enter into contractual relations or sue and be sued in its own name.”
The resulting problem as observed by the task force is that the Council of Legal Education, in the exercise of its regulatory functions and in supervising academic programmes at the school of law, is subject to heavy influence from the Civil Servants in the Office of the Attorney-General. As a section within the office of the Attorney-General, the school is subject to the usual civil service mode of operation.
Through The Council of Legal Education Bill, it was intended to secure for the school of law “as much academic freedom as is practically possible”, independent and adequate funding, more participation from the legal fraternity in the country and a more effective management system. The Bill, however, is so ambitious that it largely fails to deliver any of its objectives.
The overambitious nature of the Bill runs from one of the first sections, S.3, which establishes the Council of Legal Education. The Bill provides that the council shall consist of the Chief Justice or a judge appointed by the Chief Justice, another judge appointed by the Chief Justice, the Attorney-General or his representative, four advocates nominated by the Law Society of Kenya, the head of the faculty of Law of any university offering a law degree course, the head of any training institution established by the council, a senior counsel appointed by the Attorney-General, the Permanent Secretary of the Ministry of Education or his representative, and the Secretary of the Commission of Higher Education.
Apart from this membership being superfluous and largely unnecessary, it puts the Council even more under the control of the government than it was previously. Particularly, so does S.17 which deals with the funding for the school. It provides that the Council shall prepare annual estimates which “shall be submitted to the Attorney-General for approval”. As the saying goes, the one who pays the piper calls the tune. This is the most strategic positions the Attorney-General can occupy in respect to control of the Council.
Under S.15 the bill provides that the Council may with the approval of the Chief Justice, make regulations, for the purpose of giving effect to the provisions of the Act. On the one hand, the Chief Justice is already the Chairman of the Council. On the other, the Council comes yet again under the control of another public officer. And again under S.12, the Attorney-General is the one that appoints the Secretary of the Council, who must be another public officer.
In some respects, the Bill also appears confused. Under S.9, it says that the Attorney-General ma by order published in the Gazette transfer to the council any property belonging to the Government which appears to him to be necessary for the Council’s function. Needless to say, the only person who has powers to dispose government land is the President of Kenya. Yet the Bill insists that the “property shall vest in the Council by virtue of the order without further assurance”.
While the object of establishing the Council I 1961 was so that it can exercise general supervision and control over legal education in Kenya for the purpose of law practice, the Bill has turned it into a body to promote legal education and awareness generally. It is now supposed to establish, manage and control training institutions for legislative drafting, magistracy, government officers and officers of the armed forces and other personnel in the courts.
The council is also supposed to hold seminars and conferences on legal matters and problems and grant unspecified academic awards, certificates, fellowships and bursaries. The very best that this does to the council is to turn it into a miscellaneous non-governmental organisation.
Then there are other annoying provisions like that the Council can “make different provisions for different circumstances” or that it can “prescribe anything which may be prescribed” under the Bill. It is hard to guess what that was meant to mean.
Putting the Bill aside, the School of Law seats on four acres of land along Valley Road, in the city. To any estate agent, this rings millions and millions of shillings. With so much government land still unallocated in the outskirts of the city centre, the sale of that property in the private market would avail enough to build another school, with all facilities on a new government allocated property.
And there still would be much more left to form the richest education fund in Kenya today. If this was done, all the problems facing the Kenya School of Law today would come to an end. But of course, there would still be the war on who controls the trust fund.
