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Legal education in Ghana and the ‘250:1000’ problem: clearing the debris, by Justice Srem-Sai

BY: Justice Srem-Sai
Justice Srem-Sai

This is my third article on this topic. In this article, I wish to clear the debris left behind by my friend, Professor Stephen Kwaku Asare, in his rejoinder to my substantive two-part article published by GraphicOnline on Monday, August 17, 2015. I will take the disputed points one-by-one and address them accordingly.

Alleged Arbitrariness of the GLC

Professor Kwaku Asare mounts his rejoinder, substantially on the claim that the decision by the GLC (General Legal Council) to cap the enrolment of lawyers at 250 is arbitrary. Beyond the persistent complaints and expression of personal dislike for the GLC’s decision, he is yet to demonstrate a clear basis for his allegation. This lack of clarity leaves one to doubt what exactly he means by ‘arbitrary.’ Let me explain further:

Alleged arbitrariness in this context may be hinged on two mutually exclusive grounds:

That the GLC does not have the power to determine the number of persons to call to the bar every year; or

That the GLC has the power to determine the numbers but that the present 250 cap is unreasonable.

This clarification is important because the ground one chooses will, necessarily, determine how one analyses the problem and offers a solution to it.

My reading of the rejoinder discloses that Prof. Asare, most likely, hinges his allegation of arbitrariness on the first grounds. So, he crosses swords with me:

“Justice Sai seems so sure that the GLC and its Ghana School of Law (GSL) “retains the mandate to determine the number of persons who are enrolled as lawyers in Ghana.” His problem is that he does not and cannot cite any authority to support this assertion …”

Then, he declares:

“What the GLC cannot do is to arbitrary (sic) cap the number of students who can be given an opportunity to obtain a qualifying certificate in law. Not only will such an action lack statutory foundation, it will also probably offend Article 296(b) of the Constitution.”

This declaration seems to have some face value. But a closer scrutiny will show that it does not in any way help us going forward. This is because he has again qualified the power (the existence or otherwise of which power is the issue at stake) with “arbitrary”. In other words, he sets out to show that the GLC does not have the power to cap the numbers; you ask him why; and he simply says the GLC cannot cap the numbers arbitrarily. That, clearly, is a fallacy of circular reasoning – he alleges one thing and uses that same thing to prove that which he alleges. So as it stands, his claim remains a farce.

It is true that sometimes we tend to focus too much on winning the argument (than on helping the discussion) that we tend to make outrageous denials. How could one deny that the number of persons who are admitted to a professional body has no nexus whatsoever with the standards of that professional conduct? Even in high school, house captains know very well that the number of persons in their dorms affects the standard of discipline. Let me not spend much time on this.

Inability or Unwillingness

Prof. Asare insists, contrary to my suggestion, that the 250:1000 problem is as a result of inadequate facilities at the disposal of the GLC. To substantiate this, he goes back to yank out a 2010 (5 years ago) speech by Her Ladyship the Chief Justice, Mrs. G. Wood when she inaugurated the Kumasi Campus of the Ghana Law School. At the ceremony, Her Ladyship lamented over lack of facilities, but indicated the steps that the GLC intended to take to solve the problem. One of such steps was to create other campuses of the Ghana School of Law.

Permit me to say, respectfully, that Prof. Asare’s use of Her Ladyship’s 2010 speech as evidence to support his claim in 2015 is very dishonest. This is because the good Professor of Accounting knows or ought to have known that the GLC has already opened another satellite campus at GIMPA in addition to the Makola and Kumasi campuses since the day of the speech (in 2010), thus solving the facility problem.

As a matter of fact, the Makola campus of the Ghana School of Law used to accommodate 200 students for each year group as at 2011. The current number of students on that campus has now reduced to about 100 for each class, making the Makola campus almost half-empty.

This turn of even has caused a senior lecturer at the Ghana School of Law, (one of my favourites, actually), Mr. Maxwell Opoku-Agyemang, to lament over the under-utilization of the Makola campus in the light of the teeming lawyer-aspirants warming up behind the School’s gates hoping to be admitted. He was reported as saying:

“How can an institution with one campus admit over two hundred but admit same number after opening two more campuses. You have only 31 students at a campus that can accommodate almost 100 students and yet there is a backlog of applicants.”

This report makes it clear that willingness (rather than ability) is the solution. Yet, in the teeth of all this evidence, even from an insider, Prof. Asare, still insists, stubbornly, that inadequate facilities is the reason for the 250:1000 problem.

Demand-Supply-Price Analogy

The last, and perhaps the lowest point in Prof. Asare’s rejoinder is that which applies the demand-supply-price model or the ‘invisible hand’ analytic of Economics to the situation here. Economists say that, all things being equal, price falls when supply exceeds demand.

Extrapolating this to the present situation of the number of lawyers, their geographical distribution, and the question of affordability, Professor Asare says that producing more lawyers will cause the price of legal services to fall, making it possible for many more people to afford legal services.

This reasoning, as it were, is supposed to be a counter to my argument that a country’s need for lawyers should not be determined, as he and his disciples have persisted and still persist to do, by simply dividing the population by the number of lawyers in the country; and that the calculation should also include a variable indicating the ability of the population to afford legal services.

It is also supposed to counter my argument that even if we produce 1 million lawyers today, all of them will be practicing in the 3 big cities of Accra, Kumasi and Sekondi-Takoradi, leaving the larger part of the country still unlawyered.

Now, let us see how helpless this crude application of the demand-supply-price analytic is in this discussion: An increase in the production of lawyers only speaks to the supply side of the analysis. We all know, however, that demand has two components – willingness and ability. We also know that there is a point below which price cannot fall. That point is reached when the cost of producing the goods or services does not fall below the price at which it is sold. That point I certainly not zero price. Therefore  legal services cannot be free.

At this point we can say that Prof. Azar’s reference to our mutual friend who runs HelpLaw, a pro bono law office, is either disingenuous or naïve. Such practices are not at zero cost. What actually happens is that someone other than the litigant or the lawyer is paying for the services. So that example does not in anyway advance Prof. Asare’s course in any way.

Going forward: what is the lowest price at which a lawyer will offer his services? Could the fisherman in my village, Aveme, or in the thousands of towns and villages outside Accra, Kumasi and Sekondi-Takoradi, living on less than a dollar a day, afford that lowest price? That is the real question to be answered. Not a simple division of the country’s population by the number of lawyers. It is therefore extremely simplistic to just scream in infinity the cliché – when supply increases price falls – and apply it in such a rudimentary manner to a very sophisticated matter as this.

In other words, producing more lawyers is completely myopic a solution when it comes to the distribution of income aspect of the discussion; and the distribution of income directly relates to demand (the ability to afford legal services), which, in turn, directly affects the ability of people outside the 3 big cities to afford the assumed ‘affordable’ legal services; which, then, directly affects the distribution of lawyers in the entire country, which distribution of lawyers is the original problem that Prof. Asare and his ardent disciples seek to solve by calling for literally an unlimited production of lawyers.

Therefore, by simply increasing the number of lawyers without a corresponding success at evening out the distribution of money throughout the country, I insist, one cannot expect lawyers to be evenly distributed. After all (and as I have already mentioned) lawyers are not moved by justice, they are moved by money.

Conclusion

I have noticed that Prof. Asare has interpreted my reflections as confusing and, in some instances, tacitly as an opposition the cry for admitting more lawyers to the bar. That interpretation cannot be honest, as it cannot be traced to my article.

In a sophisticated society, it should be possible for us subject a proposed process for the attainment of a goal to scrutiny even if we all believe in the same goal. What I have spent my time doing on this, therefore, is to show that the diagnosis of the problem and the proposals being put across are bereft of critical scrutiny and are purely based on emotions.

For example, how could a person say that there is no legitimate basis for a society to control the number of people who join a particular profession or trade? Or that outsourcing the professional training of lawyers to the universities will automatically result in an increase in the number of lawyers when the GLC still controls the tap?

The writer is a Law Lecturer at GIMPA

Related: 
1) Legal education in Ghana and the ‘250:1000’ problem: a closer scrutiny (1) by Justice Srem-Sai
2)  Legal Education in Ghana and the ‘250:1000’ Problem: Setting the Records Straight, by Prof. S. Kwaku Asare