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Legal Education in Kenya

Published online by Cambridge University Press:  28 July 2009

J. B. Ojwang  and
D. R. Salter
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Extract

Legal education in Africa has attracted and will continue to attract the attention of scholars. An important reason is that African countries have enjoyed sovereign statehood for only a comparably short time, during which period transition, experiment, change, and even turmoil, have been the hallmark of society: all factors which must have a profound impact on received law (and, of course, on the primeval law), if this law is to serve effectively as a regulatory and stabilising device. This law, in its received cast, is thrown into a dilemma of turbulence; will it serve in wonted fashion, to give regularity, predictability, and a measure of reason? Or will it readily respond to inevitable change, so as to uphold new institutional positions? As President Kenneth Kaunda of Zambia has observed:

“We live in a changing world, and one in which the pace of change is becoming even greater. Neither the character nor the needs of any given society can remain static, and if the law is to fulfil its proper function it must keep pace with the changes. This is not to say that the law must be a straw in the wind; if law is to be an effective instrument of social order it must be a stabilising influence, but it must be flexible and it must be progressive, else it will hinder society in its progress and development. …”

Type
Articles
Information
Journal of African Law , Volume 33 , Issue 1 , Spring 1989 , pp. 78 - 90
Copyright
Copyright © School of Oriental and African Studies 1989

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References

1 See, e.g., Ross, S. D., “A Comparative Study of the Legal Profession in East Africa”, [1973] J.A.L. 279–299Google Scholar; Bentsi-Enchill, K., “The Lawyer's Calling in Africa”, (1971 & 1972) 3 & 4 Zambia L.J. 5–15Google Scholar; Thomas, P. A., “Legal Education in Africa: with Special Reference to Zambia”, (1971) 22 N.I.L.Q. 3–37Google Scholar; Gower, L. C. B., Independent Africa: The Challenge to the Legal Profession (Camb. Mass: Harv. V.P., 1967)Google Scholar.

2 Kaunda, K. D., “The Functions of a Lawyer in Zambia Today”, (1971 & 1972) 3 & 4 Zambia L.J. 1Google Scholar.

3 Allott, A. N. (ed.), The Future of Law in Africa, London, 1960, 51Google Scholar.

4 International Legal Centre, Legal Education in a Changing World (Report of the Committee on Legal Education in the Developing Countries), New York, 1975, para. 18Google Scholar.

5 The primordial “lawyers” of the African Society had acquired competence through experience, and they “practised” not as a trade or profession, but as a public service as the needs of the society dictated: see Randa, H., Problems of Interaction between the English Imposed System of Law and Luo Customary Law in Kenya, Juris Dok. dissertation, the Royal University of Und, Sweden, 1987, 77–82Google Scholar.

6 Twining, W., “Legal Education within East Africa”, BIICL, East African Law Today (London, 1966), p. 116Google Scholar.

7 Ibid.

8 Ibid. For further observations about the attitude of the colonial authorities towards lawyers, see Ghai, Y., “Law and Lawyers in Kenya and Tanzania: Some Political Economy Considerations” in Dias, C.J., Luckham, R., Lynch, D. O. and Paul, J. C. N. (eds.), Lawyers in the Third World: Comparative and Developmental Perspectives Uppsala, 1981, 148–149Google Scholar.

9 No. 8 of 1901, published in (1897–1905) E.A. Prot. L.R. 121–125Google Scholar.

10 Ghai, Y. P. and McAuslan, J. P. W. B., Public Law and Political Change in Kenya, Nairobi, 1970, 130–131Google Scholar.

11 While this initiative had a major local agency (Gower, , op. cit., 125–126)Google Scholar, at that particular time, and with regard to Kenya, it would have been set for the vindication of the sensitive interests minutely entrenched in the independence constitution (1963), rather than conceived in the light of the essential role of the lawyer in processing, ordering and legitimising the numerous societal changes that would inevitably characterise the post-independence period.

12 Report of the Committee on Legal Education for Students from Africa, Cmnd. 1255 (1961).

13 Gower, , op. cit., 126–127Google Scholar.

14 Ibid.

15 Cap. 16.

16 S. 12(a).

17 S. 12(b).

18 S. 12(d).

19 S. 13(a).

20 S. 13(b).

21 S. 13(c).

22 Report of the Committee on Legal Education, Cmnd. 4595, (1971).

23 Wilson, G. P., “Reflections on the Ormrod Committee Report”, (1971) 34 M.L.R. 635Google Scholar.

24 See Twining, op. cit., 120–121Google Scholar.

25 For a perspective on this kind of professional lawyers' politics, see Parker, G., “The Politics of Legal Education”, (1976) 12 East African L.J. 157–175Google Scholar. (The Canadian parallels drawn by Professor Parker would render plausible the contention that the Kenyan advocates would have preferred a law faculty that was within easy reach and amenable to their control, as to course content, and manner of giving instruction).

26 Ross, S. D., “A Comparative Study of the Legal Profession in East Africa”, [1973] J.A.L. 279Google Scholar.

27 Op. cit., 122.

28 The Faculty of Law at the University of Nairobi was established in 07, 1970Google Scholar.

29 Kamau, G. K., “Current Problems of Legal Education in Kenya”. Unpublished paper, Faculty of Law, University of Nairobi, 1976, 9Google Scholar.

30 Minutes of the Meeting of the Council of the Law Society, held on 14 09, 1987Google Scholar.

31 The same minutes show that there are 36 pending applications for admission to the roll of advocates. A much larger number than that will be seeking admission every year, as the University of Nairobi, which between 1974 and 1976 completely took over from the university training scheme at Dar-es-Salaam, currently produces more than 100 graduates each year, and these largely gain admission to the post-university programme at the Kenya School of Law.

32 Geoffrey Ndungu Theuri v The Law Society of Kenya, Nairobi H.C.C.C. No. 4242 of 1983Google Scholar. (See footnote 37, below.)

33 Statute XVII.

34 Under University Regulation L7, “Coursework assessment shall be carried out throughout each year of study, and shall constitute twenty per cent of the total marks for all papers taken for the end-year examinations during each year of study”. (This provision does not, however, apply in respect of the third year dissertation.)Google Scholar

35 Op. cit., footnote 32.

36 Gower, L. C. B., “English Legal Training”, (1950) 13 M.L.R. 137Google Scholar.

37 Paraphrased by Gower, ibid., 161.

38 Under the governing regulations, the following categories of applicants are eligible for admission to the LL.M. programme: (a) a holder of a Bachelor of Laws degree with at least an upper second class honours, of the University of Nairobi; (b) a graduate of any recognized University whose degree has been accepted by the Senate to be equivalent to a Bachelor of Laws with upper second class honours (at least) of the University of Nairobi; (c) a holder of a Bachelor of Laws degree of the University of Nairobi or its accepted equivalent who, although not having achieved the upper second class honours, has satisfied the Senate, on the basis of research and publications, that he possesses equivalent academic qualifications.

Since the establishment of the Faculty in 1970 it has trained and graduated just over a dozen LL.M. candidates.

39 See footnote 30, op. cit. In the Theuri case, the plaintiff who had met the basic requirements of articled clerkship sued the Law Society of Kenya seeking approval of his application for admission to the Kenya School of Law. He won the case, and this shows that the avenue for qualification through articled clerkship is not yet permanently closed.

40 Set up under s. 3 of the Advocates Act (Cap. 16) its functions being “to exercise general supervision and control over legal education … and to advise the Government in relation to all aspects thereof” (s. 5).

41 The Advocates (Admission) Regulations, r. 14(1).

42 Hiller, J. A., “Reconstructing Law Teaching Programmes in Developing African Countries”, (1975) 11 East African L.J. 69, at 71Google Scholar.

43 Johnstone, and Hopson, in their work, Lawyers and their Work: An Analysis of the Legal Profession in the United States and England (1967), p. 580Google Scholar (quoted in Thomas, P. A., “Legal Education in Africa: with special Reference to Zambia”, (1971) 22 N.I.L.Q. 3, at 19nGoogle Scholar.), say: “In comparing English and American lawyers, it is apparent that lawyers in the United States are relatively more important than those in England. American lawyers have a great impact on the society; they are influential in a much wider spectrum of affairs, and, especially in business and government, are far more relied on as advisers, advocates and top policy makers”.

44 Op. tit., (fn 40), 71n.