Legal Education in Ghana and the ‘250:1000’ Problem: Setting the Records Straight, by Prof. S. Kwaku Asare
It is hard to get the gravamen of Justice Srem-Sai’s 2-part article, on the above subject matter.
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In part 1, Justice Sai defends the use of an annual arbitrary ceiling on the number of lawyers admitted to the Bar. In part 2, Justice Sai insists that “all efforts must be made to get as many as desire to be lawyers to be lawyers.” Thus, it is not clear whether Justice Sai favors or is against the ceiling! Nor are his intermediate arguments any more coherent.
Justice Sai correctly notes that the General Legal Council (GLC) is “responsible for upholding standards of lawyers’ professional conduct.” Mysteriously, he concludes that “by this, the body has a mandate to determine the number of persons who are enrolled at the Ghana Bar.”
In fact, there is no nexus between upholding standards of lawyers’ professional conduct and determining the number of persons who are enrolled at the Ghana Bar. Rather, the GLC, by this mandate, is simply required to “prescribe standards of professional etiquette and professional conduct for lawyers, and may by rules made for this purpose direct that any specified breach of rules shall constitute grave misconduct in a professional respect” (see section 23 of ACT 32).
Justice Sai contends that “the GLC, its Board of Legal Education and its Ghana School of Law do not have any power over how the Universities administer their academic law programs.” This contention is both wrong and naive. It is trite knowledge that only graduates from universities approved by the GLC can qualify for enrollment at the Bar (see Section 4 of ACT 32).
Thus, the GLC has significant input and oversight responsibility over the curriculum of law schools. In fact, this is why GIMPA and other Law Faculties take steps to assure potential LLB students that their “programmes are structured to meet the criteria required by the GLC for admission to the Ghana Bar” (see, e.g., http://www.new2.gimpa.edu.gh/index.php?id=39).
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, save the need to uphold standards of lawyers’ professional conduct discussed supra. The GLC is statutorily charged to establish a system of legal education, to select the subjects in which those seeking to qualify as lawyers are to be examined, to establish courses of instruction for students, to regulate the admission of students and to hold examinations, including the final qualifying examinations (see section 13 of ACT 32).
The GLC can carry out these functions either through the GSL or through any educational institution, as it does when it outsources the LLB component of legal education to Law faculties. What the GLC cannot do is to arbitrary 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.
Justice Sai claims, once again, without any evidence that a cap on the number of students is not driven by the lack of facilities. His belief in the theory that there are adequate facilities to train enough lawyers rests on the existence of 3 campuses of the GSL (two in Accra and one in Kumasi). Thus, he argues that, if there are now 3 campuses then it follows that there are enough facilities to train all qualified lawyers. The facts, however, are to the contrary!
Indeed, the facilities problem is one that is universally acknowledged. For instance, while inaugrating the Kumasi Branch of the GSL in 2010, Chief Justice Woode said, “recently, 450 LLB qualified lawyers applied to the Ghana School of Law but only 200 could be admitted.”
Her ladyship also guaranteed that new facilities will be built in the private and public universities to cater for the increasing number of law students (see, https://www.knust.edu.gh/news/news-items/chief-justice-inaugurates-kumasi-campus-of-the-ghana-school-of-law). In effect, her ladyship is keenly aware that facilities constraints are preventing many qualified students from getting the opportunity to obtain the qualifying license and she is working to remediate this problem.
Thus, contrary to Justice Sai’s unsupported assertion, the lack of facilities continues to be the primary hurdle in the way of the many qualified students who are being denied the opportunity to obtain the qualifying certificate in law. Moreover, the addition of the 2 facilities has not assuaged the problem. In fact, the ‘250:1000’ problem of 2015 is worse compared to the 200:450 problem of 2010. Unfortunately, the problem will not abate unless we change our mindsets and the way we define and think about it.
Why is Justice Sai so reluctant to acknowledge the facilities problem? Apparently, because he believes his “supply side” analysis is not just the better explanatory variable but also that it fully explains the problem. According to this supply side analysis, the GLC is simply interested in “regulating the number of persons who are allowed to practice the profession. This is because number, as it were, has a direct effect on how the standards fare. … Suffice it to say, however, that the 250:1000 problem has more to do with the unwillingness (rather than inability) of the General Legal Council to increase the population of lawyers in the country.”
Of course, once again, Justice Sai does not support this declaration with any evidence form the GLC, GSL or even the Law Faculties. He thinks it is a supply problem; therefore, the GLC must be capping the admission of students at 250 because it is unwilling to increase the population of lawyers in the country. Why 250 rather than 100 or 400 to control the supply? Justice Sai does not tell us.
His stance is naively that 250 is the number and thus it must be accepted as the equilibrium supply level. One of the problems of op-eds is that the editors do not require authors to support their factual declarations. Perhaps, authors should consider supporting such declarations, especially where the declarations are offered as the positions of others, here the GLC.
Justice Sai takes the wrong position that ceding of professional training programs by the GLC to Law Faculties would lead to the dissolution of the Board of the Legal Education and the closure of the GSL, “since the GLC would have no legal education function.” Once again, I respectfully disagree, largely because Justice Sai and I hold fundamental different views on what constitutes legal education.
In fact, as far back as 1960, it had been recognized that the GLC may carry out its legal education function “either through a school of law set up by the GLC or through any other educational institution” (see section 13 of ACT 32). In effect, the statute is saying, and correctly so, that the GLC does not abdicate its legal education function merely by outsourcing instructions of students to other educational institutions.
Pursuant to Justice Sai’s supply side analysis, he asserts that “all lawyers go in for the pecuniary reward – money. Therefore, any serious analysis of a country’s need for lawyers must include the ability of the population to afford (in pecuniary terms) lawyers and the services they provide.” This argument contains a series of baffling propositions. First, it may surprise Justice Sai but the reality is that not all lawyers go in for the pecuniary reward.
There are many lawyers, including many of our prosecutors, who are not well paid but who serve because of their convictions and the desire to carry out justice. In fact, I know one lawyer who relocated from the United States to Ghana to set up HelpLaw, a practice that is primarily aimed at defending indigents. Second, ACT 32 established the GLC to concern itself with the organization of legal education and the upholding of standards of professional conduct. GLC was not set up to decide and is in no position to determine the number of lawyers needed by the country.
However, Justice Sai’s point may represent a failure in legal education. If so, the GLC should recommend a mandatory course in professional responsibility, which will educate lawyers not to think of lawyering as only a vehicle for obtaining pecuniary reward but rather as the leveler between the powerful and the less so. Third, increasing, rather than limiting, supply is the proper economic solution to the “affordablity” problem.
Elementary economics will teach us that limiting supply will only create rent for suppliers and price even more consumers out of the market for legal services.
The ability to afford professional services, as the basis of admitting people to professional schools, if carried to its logical conclusion will operate to impose caps on the number of doctors, accountants, pharmacists, etc. It is an absurd view of professional education.
Justice Sai says, “the more Ghanaians we have enrolling as lawyers, the fewer of them we have left to become engineers, medical doctors, architects, planners, farmers etc.” Moreover, he continues, “for the records, lawyers do not produce tangibles. Lawyers consume; they import and consume exotic goods. By nature of their work, lawyers only feed off the pliers of other professions and trade.”
Is Justice Sai saying the cap of 250 is justified because the 750 who are otherwise qualified but denied admission to obtain the qualifying certificate should go into engineering, medicine, architecture, etc.? Why can’t Justice Sai trust people to make their own career choices?
As for whether lawyers are importers and consumers of exotic goods (whatever that means), let me just say I have a fundamental disagreement with my learned friend, assuming I understand what he is saying. The notion that one must produce something tangible to add value is too ancient to be taken seriously and must be dismissed with utter contempt.
In sum, Justice Sai’s 2-part article provides an interesting distraction from what is an important problem that has an obvious solution. The Law Faculties advertise their LLB programmes as structured to meet the criteria required by the GLC for admission to the Ghana Bar.
The students pay thousands of dollars to enrol in these programmes. They buy expensive books, endure unexciting lectures, take time away from their jobs and families, study hard and pass all the LLB courses approved by the GLC. It is “bait and switch” for them to find out at the exit point of the LLB, that the LLB only gives them a 25% chance of admission to the Ghana Bar. The Law Faculties and their faculty members should stand up for the students, whose fees support them, not propose fanciful supply side analysis to justify the irrational exclusion of the students from the Ghana Bar.
Let me reiterate that it is statutory permissible for the GLC to outsource curriculum delivery and the fourth year of legal education to the Law Faculties, freeing the GLC to concentrate on curriculum standards, administering Bar examinations that can identify those who are competent to serve their clients, and upholding the standards of professsional conduct. In today’s technologically sophsiticated world of education delivery, it is unacceptable for so many qualified students to be denied the opportunity to obtain the qualifying certificate on grounds of unavailaibility of facilities.
In conclusion, I agree with Justice Sai on one point − “all efforts must be made to get as many as desire to be lawyers to be lawyers.”
Related:
1) Legal education in Ghana and the ‘250:1000’ problem: a closer scrutiny (1) by Justice Srem-Sai
