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Opinions of Friday, 30 June 2017

Columnist: Graphic.com.gh

Fix the law school admission crisis now

On June 22, 2017, the Supreme Court of Ghana delivered a landmark decision on admission to the Ghana School of Law. In one broad sweep, the apex court declared unconstitutional the requirement of entrance examinations and interviews prescribed by the General Legal Council (GLC) for LLB holders who seek to enter the school. The court also declared unconstitutional the Independent Examinations Board set up by the GLC to administer the entrance examinations.

The primary conclusion reached by the apex court is that by the provisions of the Legal Profession Act 1961 (Act 32) and Professional Law Course Regulation, 1984 (LI 1296), LLB holders who meet specified statutory requirements have an automatic right to enter the Ghana School of Law.

What is striking about the decision is not the declaration of unconstitutionality of the entrance examinations and interviews; it is rather the principle of law upon which the decision was based. It appears to be such a banal but fundamental principle of law that one wonders how the GLC with membership comprising eminent judges and members of the Ghana Bar, could have missed it, especially when all along LLB holders had enjoyed an automatic right of admission to the Ghana School of Law.

It will be a mistake to regard the illegal conduct of the respected GLC as a momentary lapse in judgment and inattention to the dictates of the law that regulates legal education in Ghana. On the contrary, it is the reflection of a certain culture of regulatory and administrative opaqueness that has characterised the work of the GLC in recent times. This is evidenced by the fact that in the recent years of the administration of the entrance examinations, students were denied the opportunity to know the pass mark, to see or to request the re-marking of their examination scripts. Until recently, students had no prior knowledge of the detailed rules for the conduct of the examinations.

Legal audit

The invalidation of entrance examinations and interviews for law school admissions should provide sufficient reasons for the GLC to conduct a legal audit of its functions and processes. In conducting this audit, one area it needs to tackle is the composition of the GLC. While it made perfect sense in the 1960s due to the shortage of qualified personnel to have the Chief Justice as the chairperson and other justices of the Supreme Court as members of the GLC, I am no longer persuaded of any sound logical and policy reasons that would support such composition.

In many jurisdictions, including the United States of America and the United Kingdom, regulatory bodies for legal education are not chaired by judges nor are judges members of these bodies. Our superior court judges are already overburdened by the adjudicatory functions they perform. Thus, adding the regulation of legal education to their overburdened judiciary functions is to make a bad situation worse.

In any event, the aesthetics of having senior judges as members GLC has clear negative effects. As the GLC is an administrative body, its decisions are subject to review through certiorari applications before the High Court or appealable to the Court of Appeal in some cases.To place High Court or Court of Appeal judges in the uncomfortable situation where they have to review or reconsider decisions taken by the GLC, headed by the Chief Justice, their boss, is to put needless and perhaps unintended pressure on these judges. After all, law on the statute books as to what a judge ought to do or has the power to do, in some cases, is different from law in practice as to what a judge would do in fact.

Radical solution

As the GLC retraces its steps to fashion a solution to fix the law school admission crisis that it has created through its own actions or inactions, it must bear in mind that this crisis needs a radical solution. There are over 2000 students waiting to enter the Ghana School of Law, which only has capacity to admit about 450 students per year. As the various law faculties produce a total of about 1000 LLB holders every year, the Ghana School of Law cannot reasonably remain the only institution to offer professional legal education.

Any attempt to create a monopoly for the Ghana School of Law in professional legal education is not only unconstitutional, it is unlikely to be in the public interest. The GLC needs to remember that article 25(2) of the 1992 Constitution guarantees the right of every person “at his own expense, to establish and maintain a private school or schools at all levels and of such categories and in accordance with such conditions as may be provided by law.”

If the GLC decides to stick to the model of a professional law school for the provision of professional legal education, it must open up the space for private enterprise. It must also begin to consider the conditions under which the private sector, in particular, can participate in the provision of professional legal education.

Meanwhile, the law school admission crisis and its avoidable, yet excruciatingly painful effects on applicants, remain. It is my hope that the GLC will start broad consultations as a matter of urgency to find a lasting solution to this crisis.