(1) the Regulation seeks to commandeer Parliament to rubber stamp the General Legal Council’s (Council) prior illegal actions;

(2) the Council’s prior illegal actions have resulted in extraordinary injustice and occasioned uncommon hardship to over 3,000 students;

(3) the proposed Regulation does not provide any relief for the victims of the Council’s illegal actions;

(4) the proposed Regulation, if passed, will conflict with the Supreme Court’s order that the mechanism for 2018 admissions to the Ghana School of Law should be in place by December 22, 2017;

(5) the Council has a duty, under the Legal Profession Act, to provide opportunities for LLB degree holders to qualify as lawyers;

(6) the proposed Regulation seeks to put entrance “tariffs,” unrelated to technical competence, on qualified students;

(7) the entrance tariffs are at variance with the Council’s duty to provide opportunities for law students to qualify as lawyers;

(8) the entrance tariffs effectively implement a quota system to ration out space at the Ghana School of Law at a time when there has been a significant growth in the number of Law Faculties and students interested in entering the Law Profession;

(9) the Law Faculties are alternative places of instruction that can accommodate the growth in the number of students qualified to pursue the professional component of the legal education; and,

(10) Parliament should not allow itself to be used as a vessel for legitimizing the ultra vires actions of administrative bodies or otherwise be seen as partaking in any scheme that perpetuates injustice and robs citizens of their substantive legitimate expectations.

LI 1296 regulates the admission of law students to the School of Law. It emplaces a bifurcated legal education system with an entry point at the Law Faculties and an exit point at the School of Law. To enter the School of law, students must pass various courses specified in the Regulation, acquire the LLB, and be of good behavior.

The LI, thus, provides an objective, incorruptible, progressive and automatic admission requirements for students.

2 The bifurcated legal education system did not occur by happenstance. It was a product of considerable research done by the International Advisory Committee to examine legal education in Ghana and the Denning Committee, appointed by the Lord Chancellor of Great Britain, to examine legal education in Africa.

1 In the words of the Denning Committee, “in some parts of the world a university degree in law is considered by itself a qualification to practice. We do not take this view. … After a man has taken his degree at the university, he should have a period of one year’s practical training at a school of law where he can be taught such things as the drawing of pleadings, trust accounts and bookkeeping, practical conveyancing, etiquette and professional conduct.”

Since 2012, the Council has acted ultra vires by imposing its own arbitrary admission rules, culminating in the Supreme Court holding, on June 22, 2017 that the Council’s imposition of entrance examination and interview requirements for admission to the School of Law violates Articles 11(7), 297(d), 23, 296(a), and 296(b) of the 1992 Constitution.

The Court also affirmed that LLB degree holders from the various Faculties automatically qualify for admission to the Ghana School of Law or other alternative places of instructions specified by the Council. Lastly, the Court declared that the Council’s disqualification of persons, who have so qualified, violates the constitutional provisions hereinbefore listed.

Given the acrimony, confusion and ultimately the Supreme Court’s repudiation of these extralegal admission policies, one would have expected the Council to activate a broad consultation process to seek a way forward that is (i) progressive, (ii) curative of the injustice that its illegal actions had produced, and (iii) reflective of the underlying increase in the population of people interested in legal education.

Alas, almost 7 months after the ruling, the Council has not provided any plans for making whole the over 3,000 students that its illegal actions have wronged. Nor has the Council met with or consulted with the victims, relevant stakeholders or plaintiff in the action.

Rather, it has laid the Legal Profession Regulation, 2017 in Parliament, with the primary, if not the sole, purpose of procuring legislative blessing of the same illegal actions that have wrought the extraordinary injustice and done needless violence to the bifurcated legal education system. Parliament 1 The International Advisory Committee comprised of Professors L. C. B. Gower (London School of Economics), Sir Zelman Cowen (University of Melbourne) and Arthur Sutherland (Harvard Law School). 3 must deny this invitation to wrongdoing, in much the same way as the Supreme Court did, and demand justice for the Council’s victims.

Moreover, Parliament must demand an explanation for the sudden change in the legal education model. The Council’s prior unlawful admission policies have resulted in uncommon hardship and exceptional injustice to over 3,000 students. The proper course of action in such an instance is to seek ways to undo the injustice to the victims, not pass a regulation to legitimize the unlawful administrative act.

The power of administrative bodies and public authorities to change policy must be and is constrained by the legal duty to be fair, candid, reasonable and just. If an administrative body has distinctly promised to confer a benefit to a specific person or group who perform certain actions, then that promise creates a substantive expectation, which binds the administrative body to keep its promise. Over 3,000 students have a legitimate substantive expectation that the Council will give them an opportunity to pursue their professional education.

They have incurred significant financial, cognitive and emotional resources, all in reliance of the promise of LI 1296. Parliament must exercise its oversight authority over the Council and order it to provide reasonable relief to the victims of its injustice, not allow it to evade responsibility, thumb its nose at its victims and the rule of law, or otherwise legitimize its unlawful actions.

The Supreme Court has ordered the Council to put in place by December 22, 2017, the law that will govern the admission of students to the School of Law in 2018. As at the deadline, LI 1296 remains the only law on admission to the School of Law. Consistent with LI 1296, the Council must be compelled to provide alternative places of actions for all qualified students to pursue their professional education in 2018.

The Legal Profession Regulations, 2017 seeks to contravene this order and its passage will attempt to vary the order, thereby potentially putting Parliament on a collision course with the Supreme Court and creating further needless and costly litigation.

The proposed entrance examination will not be a test of technical competence. In fact, none of the entrance examinations that the Council has organized since 2012 has tested technical competence. LI 1296 incorporates adequate tests of competence by requiring anyone seeking to be a lawyer to take and pass courses in Contracts, Torts, Criminal Law, Constitutional Law, Property, Equity, etc.

An entrance examination that covers these courses, as a condition precedent to enter the School, does not add any value to legal education and cannot be a better diagnostic tool than passing over 4 10 courses in the Law Faculty. Rather, as we have learnt since 2012, these entrance examinations are just a device to allow the Council to effectuate a quota system to ration space at the Ghana School of Law.

This is why, to date, the Council cannot and does not specify an a priori pass mark. Au contraire, each year, the Council announces an arbitrary number that allows it to choose only about 1/3 of the qualified students. I contend that this quota system is grossly arbitrary and unfair and counter to the enabling Act and the overriding national interest. I further contend that the practice of denying qualified persons who are willing to pay their tuition and eager to further their professional education is a profoundly bad practice that augur ill for the country and should not be allowed to continue in Ghana, where there is an acute shortage of legal professionals.

Parliament must take notice that the Ghana School of Law enrolled a paltry 252 new lawyers in 2017. Other African countries at the same level of development and with smaller or same size population call lawyers in the thousands.

The Legal Profession Act imposes a duty on the Council to establish a system of legal education, which affords qualified students opportunities to read and to obtain practical experience in the law and to qualify as lawyers.

The Council is duty-bound to make arrangements for legal education in such manner as it thinks fit and, in particular, either through a school of law or through any educational institution. The Act does not, however, allow the Council to shirk its responsibility to make such arrangements and use that shirking as a basis for imposing a quota system. The use of the quota system is not inevitable and arises only because the Council continues to hold on to the model of the School of Law, as conceived in 1958, where all LLB degree holders converge to a central location (or locations) to pursue professional courses.

This model is a 1958 solution to offering legal education to 10 law students in a newly emerged independent country, with 1 Law Faculty, that is entirely anachronistic in a matured country with 10 Law Faculties. In today’s world of distance learning and assorted electronic learning platforms, it is entirely unnecessary for students to converge at a centralized location or any central locations to study evidence, procedure, taxation, legal accountancy, interpretation, alternative dispute resolutions, conveyancing, family, company, labor, banking and insurance law.

The Ghana School of Law has no comparative advantage in teaching these courses. Nor are these courses so unique that they cannot be taught at the 10 Law Faculties. In fact, some of the courses are currently taught at the Law Faculties creating needless repetition and redundancy. 5 It is time to collapse the faux and unnecessary distinction between the academic and professional law courses. I propose that law students be required to take all courses at their Law Faculties after which they can apply to take the Bar examination, administered by a Board of Examiners.

The Bar examination should be administered twice a year and opened to anyone showing that they have an LLB and have taken 90 credits of Law Courses. No self-respecting Parliament will allow an administrative body to legalize and normalize its unlawful admission policies that have occasioned uncommon inconvenience, needless hardship and miscarried justice for thousands of qualified citizens. The Sierra Leone Parliament, faced with a similar set of circumstances, sided with justice and their constituents to reject a similarly defective regulation. We expect no less from our Parliament.

For similar reasons, Ghanaian lawyers, trained in other common law jurisdictions, seeking to be admitted to the Ghanaian Bar must be required to take and pass the Bar examination but not be compelled to attend classes for one year. Nor should they be made to pay exorbitant fees unrelated to the cost of administering the examination.

Finally, I call on Parliament to amend the Legal Profession ACT 32 (1960) to dissolve the GLC as currently constituted and to create a 21st century Council for Legal Education that is responsible for accrediting Law Faculties, administering Bar examinations, and setting and enforcing ethical and quality control standards for qualification and practice as a lawyer. For all of the forgoing reasons, I pray that the Legislative Instrument be withdrawn from Parliament immediately.

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Author: Prof. Kwaku Azar

The post Why Parliament should withdraw LI for legal education [Article] appeared first on Citi 97.3 FM - Relevant Radio. Always.

I was bent on making the best of my time at this hallowed institution. I cross-registered at the Harvard Business School to retrofit my intellectual wiring to suit the world of business.

Some of my friends, who like me, were not quantitatively endowed, steered clear of courses such as “Analytical Methods for Lawyers” and “Business Strategy for Lawyers”.

I took the former course in the semester in which Professor Kathryn Spier, an economist with a background in Mathematics, taught it. As she announced on the first day of class, she was not a lawyer so quite predictably everything hinged on my worst fears – quantitative methods. The class was comprised of Juris Doctor (JD) students (considered the equivalent of Ghana’s LLB – Bachelor of Laws degree) and LL.M. candidates.

I had a torrid time in her class. My previous studies had not prepared me for that aspect of legal studies. With the selfless help of Michael Waks (the teaching assistant Professor Spier assigned to me) and my proclivity to punch above my weight, I earned a handshake from the inimitable Professor Spier at the end of the LL.M. programme.

Earlier, as a law student in Ghana, I had studied the law of taxation (I actually made a grade A and was adjudged the best student in the law of taxation) but admittedly, there was no way I could have analyzed or competently discussed the liquidity, solvency, managerial efficiency, profitability, earnings per share or price-earnings ratios of any business, at the end of the course, let alone during it.

Of course I studied the Law of Contract in Ghana but I did not exactly study “Contracting”. By that, I mean that I was guided through many common law principles, statutes and case law.

However, the core guiding principles for entering into a contract in the first place; the need for valuation, complementarities, the allocation of risk, the position of the borrower and the lender, enlarging the contractual pie, incentive issues, uncertainty and risk-bearing, the issues to consider in performance-based contracts, negotiation and such key concepts as the moral hazard problem and adverse selection did not find a place in the curriculum.

Studying Company Law (Corporations) in Ghana, concepts such as the “agency problem” and the stakeholder versus shareholder primacy debate were never presented to us.  Neither did the free-rider problem, the theory of the firm, the time value of money, the efficient market hypothesis, the prisoners’ dilemma, game theory, path dependency, decision analysis, risk and return and diversification ever come up in any identifiable shape or form.

Similarly, there was never the opportunity to study International Commercial Arbitration, International Investment Arbitration, Corporate Governance, Mergers and Acquisitions and Corporate Finance, to name a few.

My legal training in Ghana did not provide me with a framework of analysis with respect to key concepts in economics. Neither did it teach me the fundamentals of statistics nor multivariate statistics with its scatterplots and regression analysis.

In advising businesses in Ghana, quite unlike the report of my colleagues in the West, business executives tend not to expect me to have the foggiest understanding of matters which they consider to be the preserve of economists, accountants and graduates of business school.

The other day, at a meeting with a CEO, he did not bother to ask me whether or not I could interpret a set of financial statements. He proceeded to explain really basic accounting principles to me as I listened in silence. Quite satisfied that he had laid enough of a foundation for our ensuing discussion, he sought my opinion on a thing or two. Shortly, he noticed to his chagrin that I was not the ignoramus that he had imagined me to be.

Some months earlier whilst having lunch with another CEO, he expressed quite a bit of frustration that at the table of complex transactions, he would almost always find himself and his team having to explain basic business concepts to the lawyers present.

When a CEO who graduated from a foreign business school asked me for a likelihood of success analysis of a commercial case on appeal, he was totally surprised and excited to receive an opinion based on decision analysis. It connected with him in a manner that makes him come back for repeat business.

Oh and on radio the other day, whilst I was in the process of making a presentation on the Income Tax Act, 2015 (Act 896), some listeners sent messages around asking that I be told to leave the subject for the “experts” seeing as, to them, I was only a lawyer. Yes, they had a pigeonhole view of who a lawyer is.

Around the world, lawyers are serving in key executive and non-executive business positions including holding the position of CEO and/or board chairman (in Ghana a practising lawyer is not allowed to be a managing director, active partner or executive chairman of any business).

They advise investors on capital market transactions, insurance, banking, real estate, media, sport, aviation etc. They assess the viability of business ventures (including mergers and acquisitions) and advice clients on their tax and financial obligations and decisions. They also apply analytical methods to commercial and non-commercial ligation and arbitration. When they serve on the boards of businesses they tailor-guide critical steps to business success.

My course at the Harvard Business School lasted a full semester of four months. Half of the class was made up of second year MBA students, a quarter of JDs and the final quarter of LL.M. candidates. The idea was to create the well-needed synergy between law and business. I think we should begin to think in that direction as well.

The case studies, textbooks, innumerable articles and seminars were put together by the instructors of the courses who themselves are the leading lights of these areas of academia and practice. The founts of industry are invited to share their experiences during courses. Advisors to presidents and the biggest corporations, leading practitioners and the very best of judges teach relevant courses.

No one whose area of expertise lies in constitutional law for example, will be railroaded to teach financial markets, simply because they have a doctorate degree. The experience is manifestly delightful and palpably eye opening.

In Ghana, the slavish regurgitation of legal provisions and cases geared towards the drafting of agreements and making arguments based on templates and dogma must give way to a policy-based appreciation of the ever-changing nature of business law. If we fail to do so, ours shall continue to be a theatre that only serves to burlesque the ideals for transforming our nation into a business haven.

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By: Robert Nii Arday Clegg

The writer is a corporate lawyer with Nii Arday Clegg & Co.

The post Connecting Ghana’s legal education to the world of business [Article] appeared first on Citi 97.3 FM - Relevant Radio. Always.