LAW STUDENTS DEMONSTRATING SEEKING REFORM OF LEGAL EDUCATION

UNDERSTANDING THE OUTCRY AGAINST THE GHANA GENERAL LEGAL COUNCIL BY LAW STUDENTS CONCERNING LEGAL EDUCATION

On 7th October 2019, law students from the different law schools in Ghana staged a demonstration against alleged injustice with regard to legal education. Their displeasure was directed toward the General Legal Council (GLC) and its chair, Her Ladyship Justice Sophia Abena Boafoa Akuffo the Chief Justice of Ghana. The demonstration was met with brute force by the Ghana Police Service. Greater Accra Regional Police Commander, DCOP Frederick Adu Anim and his officers arrived in full riot gear and without provocation “fired rubber bullets at the students, sprayed the students with water from their water cannons and fired tear gas to disperse the students”.The students have since petitioned the Commission on Human Rights and Administrative Justice (CHRAJ) to investigate what they describe as police brutality.

THE PROBLEM

A person who holds a law degree is qualified to pursue a Professional Law Course in Ghana. However, the General Legal Council instituted an entrance examination which reduces the number of graduates who can enter the professional law programme that is requisite to being called to the bar. As a prerequisite for being allowed to write the qualification exam to enter the Ghana School of Law, the prospective students who had graduated from the various University Law Departments in 2019 across the nation were asked to sign an undertaking, waiving any and all rights they may have to judicially contest the outcome of the entrance examination. This alone should have raised warning signals. 1,820 bachelor of law graduates signed the undertaking and were allowed to write the exam. When the results were released, only 128 had been passed to gain admission to the Ghana School of Law to pursue the professional law course which equips them with the competence needed to be called to the Ghana Bar. The results released showed that 1,672 persons (representing 93%) had allegedly failed a two-hour test which covers 9 subjects. Interestingly, valedictorians (usually the students ranking highest academically in a school graduating class) from various law faculties in Ghana, especially from University of Ghana, GIMPA and University of Cape-Coast did not make the cut. One wonders if these valedictorians and other students who had won academic awards of excellence from these faculties of law had suddenly become underperforming students or that all these law faculties awarded poor performing students with these high awards? The Chief Justice seems to suggest the latter in a speech on the topic ‘Questing for Excellence’ at the 2019 University of Ghana Alumni Lectures.

In the absence of being allowed to seek redress at the courts because of the undertaking, the only other way these law degree holders could make their voices heard was to resort to their fundamental right to peaceably assemble in protest as guaranteed in the 1992 Constitution and other international law instruments.

Article 21 of the 1992 Constitution — General Fundamental Freedoms

(1) All persons shall have the right to —

(a) freedom of speech and expression, which shall include freedom of the press and other media;

(b) freedom of thought, conscience and belief, which shall include academic freedom;

( c) freedom to practise any religion and to manifest such practice;

(d) freedom of assembly including freedom to take part in processions and demonstrations

In addition to the above:

“Sub-Article 21(4) allows derogation from certain of the freedoms guaranteed under Article 21(1), but the sub-Article does not appear to allow abridgment of freedom of association and assembly. There is no other provision under the Constitution that permits derogation from these rights, except the carefully crafted Article 31 which permits derogation from all fundamental rights during a state of emergency”.

What some may not realize is that these freedoms cannot be given or taken away by governments. These are fundamental human rights and belong to people by virtue of them being human. When the law degree holders demonstrated, they were exercising these inalienable rights to movement, free speech as well as freedom to assemble and take part in a demonstration.

LAW STUDENTS DEMONSTRATION

They were marching to the seat of government, Jubilee House, to present a petition to the President of the Republic. The Ghana Police, either not understanding these rights or acting on orders, met these demonstrators with brute force. In a bid to justify the use of brute force, the police started alleging that some of the students became violent. On the contrary, none of the video footage available on social or other media shows evidence of this claim. Sadly, it fell on the Canadian High Commission to protect Ghanaian youths from their own Police Service. This is eerily reminiscent of the way the same Police Service used brute force at the Ayawaso West Wuogon by-election shooting incident not too long ago — where a parliamentary representative of the Ghanaian people was assaulted in the full glare of those charged with protecting the citizenry and maintaining law and order. Civilians were manhandled, some beaten and others shot at by the police. When the Justice Emile Short Commission’s recommendations (which was a little more than a slap on the wrist) were released, government functionaries lashed out at the recommendations. Proverbs 29 states in verse 1 that, “He who is often rebuked and stiffens his neck will be destroyed suddenly, with no remedy”. It is not the citizens only who are not above the law. When government or its agencies fall foul of the law, such as with the handling of the Comprehensive Sexuality Education debacle, it must sometimes simply learn to take responsibility or ownership of fault, apologize and move on. Apologizing for wrong doing and taking ownership of mistakes is not weakness as some may believe. It is rather a sign of growth and progress. There can be no excuses for unloading water cannons, rubber bullets, physical beatings with canes and the like on law graduates exercising their constitutional and human rights for which they had served the police a ten-day notice, which is twice the amount of time required by law. The students did not need permission to exercise this human right. They only needed to inform the police as per Section 1(1) of the Public Order Act of 1994 which prescribes at least a 5-day notice in advance of the event. On the 27th of September, 2019, the National Association of Law Students sent a notice to the police informing them of the planned demonstration on the 7th of October, 2019 to advocate legal education reforms. Persons who want to foment violence do not generally abide by the law as these law degree holders did. What reforms are the students advocating for, for which the Police met them with violence?

ADVOCATING FOR REFORM

The National Association of Law Students want a reform of legal education so that it is fair and just and have sent a petition to the Office of the President. It includes:

3.1. Decentralize Professional Legal Training; Scrap Ghana School of Law Entrance Exam

We firmly believe that there is no reason why professional legal training should be within the purview of only the Ghana School of Law. Allowing all or some of the faculties to provide professional legal training solves the problem of lack of space at the Ghana School of Law. With this decentralized system, there would be little to no need for an entrance exam. Instead, all students, having completed a unified legal education programme would be able to take a professional or bar exam held annually a la WAEC Examinations or bi-annually a la ACCA Professional Examinations. This is done in other jurisdictions. As the evolution of our legal system has been largely experience driven, it is important that we do not repeat the mistakes of the past. A bar exam such as this one would need to have the marking scheme published and a fair opportunity for review of the results.

3.2. Repeal Repeat Policy and Standardize Remarking Fee

In the short term, the repeat policy at the Ghana School of Law must be abolished or at least amended. Currently, at the Ghana School of Law, failure to pass a cumulative three papers out of ten results in the student having to repeat the entire programme. This is unfair. The remarking fee is currently pegged at 3000GHS, which is prohibitive and does not enure to justice. The fee must be standardized to reflect best practice, which stands between 100GHS and 500GHS.

3.3. Conduct a Formal Inquiry Into The Exam and Publish Examiners’ Report

Again, in the short term, a full formal inquiry into the exam must be conducted to understand the reasons for the mass failure. A detailed examiners’ report must also be published, along with the marking scheme to better inform educators and students alike on what was required

JUSTIFICATION FOR MASS FAILURE

As per their own website, “The General Legal Council is the main regulatory body for the conduct and administration of legal education and profession in Ghana”. The General Legal Council supervises the entrance examinations to the Ghana School of Law. Its composition from the Legal Profession Act, 1960 (Act 32) is as follows:

2. (1) Subject to this paragraph, the governing body of the Council consists of the chairman, the deputy chairman and

(a) the two most senior Justices of the Supreme Court after the chairman and the deputy

chairman referred to in sub paragraph (2),

(b) the Attorney-General,

© the Head of the Faculty of Law at the University of Ghana,

(d) three persons nominated by the Minister,

(e) four members of the Bar elected by the Ghana Bar Association.

(2) The Chief Justice is the chairman and the deputy chairman is the most senior of the other Justices of the Supreme Court.

The Chief Justice is the chairperson of this General Legal Council and she lays the blame for the mass failure with the various university faculties of law within Ghana, who she insists are churning out poor quality law students. Speaking at the 2019 University of Ghana Alumni Lectures, she told the gathering: “a good lawyer for each Ghanaian is what we deserve. Not a lot of lawyers … I will stand here again and say we need quality lawyers, not mass-produced lawyers”.

A mass production does not necessarily translate into poor quality. Likewise, fewer numbers does not necessarily improve on quality. Standards determine quality, not numbers.

The Chief Justice added that the GLC was not consulted before the setting up of new faculties of Law in Ghana. And this is what led to the birth of the exams to test those who study the BL because “we cannot any longer guarantee the quality of students from the various faculties without examining them”. Examination is not the only way to guarantee quality but more on that later.

WHO IS ULTIMATELY RESPONSIBLE FOR THE MASS FAILURE?

As well-meaning as the justification by the chief Justice sounds, the head of the judiciary and government she represents are making excuses, shirking responsibility and apportioning blame instead of addressing the challenge at hand. Let us accept for argument sake, that her assertion is correct and that the various law faculties are inept, upon who lies the onus to fix this problem? The answer is the government of Ghana of whom the Chief Justice, Minister of Justice and other members of the GLC are a part.

Universities do not just pop up. They are established by Acts of Parliament and they get to run programs only when the National Accreditation Board has accredited the Universities, programs and courses. How about the curriculum? The General Legal Council via the Legal Profession Act, ACT 32, 1960 have a say in the core courses offered by law faculties because the students taught in the law faculties in due course end up at the Ghana School of Law which is under the purview of the GLC. The Courses to run in these university faculties of law are thus determined by the Legal Profession Act, ACT 32, 1960. In one fell swoop, the Chief Justice’s comments apportion blame for the mass failure on the National Accreditation Board, the University law faculties and their lecturers who teach these courses. Ultimately, she is saying Ghana is a dysfunctional state with a dysfunctional university system overseen by a dysfunctional government. She makes the claim that the GLC was not consulted before the setting up of new faculties of Law and this led to the birth of the exams to test those who study the BL because “we cannot any longer guarantee the quality of students from the various faculties without examining them”. Well, the GLC may not have been consulted however it does determine courses taught in them. In her speech, she navigated away from the fact that there are issues with examinations in general when it comes to the GLC. Even the students taught at the Ghana School of Law suffer high failure rates. Is this also a problem of the law faculties? With regard to the entrance exams, the lecturers who taught the students and who by training are academics are not allowed to set questions for the entrance exams, mark the questions or set the marking scheme. That responsibility is given to lawyers who allegedly are neither academics nor trained legal scholars. No wonder the GLC and its examiners make rubbish of the Bell curve in their marking scheme.

A 93% fail rate cannot be the fault of trainees. The fault may lie with either one or a combination of the following:

  1. the trainers / lecturers (It cannot be that all law lecturers in various faculties are bad lecturers)
  2. curricula or course content discrepancy between what is taught at the university faculties and what is expected by the Ghana School of Law and its GLC
  3. discord between those who teach the students at the faculties, those who set the question and those who mark the questions (who in this case happen to be different individuals)
  4. system of assessment
  5. deliberate plan to reduce the number of lawyers in the country because of an erroneous impression that quantity somehow deludes quality

Defenders of this high failure rate state that other countries on the continent have higher failure rates. Since when did countries with less legal scholarship and experience than ours become the bar for excellence to be aimed at? There is an international standard we can and should aim at. It will never be said that a developed country held an entrance exam for their professional law program and 93% of the participants with bachelor of law degrees from that country’s own universities failed. This is because that incident alone would call for a resignation of the entire government — because it would mean they do not know how to run the country or its education system.

The Chief Justice, Minister of Justice and Attorney General all of whom sit on the General Legal Council are culpable because they could have used the influence of their respective offices and that of the GLC to improve quality of instruction at various law faculties if indeed that is the problem. They have access to Ministry of Education, the National Accreditation Board as well as the various agencies that are responsible for the curricula at these universities. Furthermore, they could have liaised with the Deans of the faculties of law at the University of Ghana and Kwame Nkrumah University of Science and Technology who sit on the GLC to seek the best way forward in reforming the faculties if indeed there was a need for it.

Put differently, this raises the question of whether the Chief Justice’s remarks reflect the official position of the GLC or her own? The former would mean GLC members (including the Deans of UG and KNUST) who supervise the training in their faculties are indicting their own work. In that case, the GLC is complaining about itself. If it is the latter, is the Chief Justice using her position as chairperson to impose her views on the Council?

The answer to poor quality of students from faculties was not to institute an examination that excludes and disenfranchises 93 percent of law degree holders who sit for these exams. A more holistic approach that does not promote elitism is more desirable. University admission requirements into faculties and school fees alone are prohibitive enough and excludes a large segment of the society from such training.

In fact, the GLC has undertaken some very serious crimes against the State. This is not the first-time legal education has been in the news. The entrance examination to the Ghana School of Law was first introduced in 2012 by the General Legal Council and in 2017, it was challenged in court in Asare v Attorney General and Another (J1/1/2016) [2017] GHASC 25 (22 June 2017). The court held that “the council had the authority to do so [to institute new admission requirements, for example, the entrance examination] but it was unconstitutional since the new requirements were implemented without legal backing (regulations).” This means the GLC had illegally held exams for 5 years, used it to disenfranchise those who it claimed failed such exams and got away scot free for doing so. It was after this ruling that the GLC sought and received legal backing for the examinations in the form of Legislative Instrument LI 2355 (2018). How about justice for all those students failed by the unconstitutional illegal entrance examinations? Why was the GLC not sanctioned? Oh wait, the Chairperson is the head of the judiciary and the Minister of Justice is also a member! In other words, the referees in a football match both double as players for one of the teams. This never produces Justicia who is supposed to be blind in her dispense of justice.

CRITICISM OF GLC

Parliamentary Report

An excerpt out of the Report of Parliamentary Committee on Constitutional, Legal and Parliamentary Affairs on the Petition by Professional Law Students seeking a review of results of the 2017/2018 New Professional Course Examinations states that, “To buttress their suspicion, they recounted the case of a student who failed a paper with 23% but a remarking turned that mark to 76%. In that regard, they proposed that the IEC should adopt a residential marking system, under which the IEC would lodge in a facility for about three weeks to mark all the papers”. The gap between 23 to 76 percent is very wide. Why did parliament not investigate and hold someone culpable?

Former Director of the Ghana School of Law

The former Director of the Ghana School of Law, Mr. Kwaku Ansa-Asare had some comments to make concerning the recent debacle where over 90% of students were failed. Referring to the General Legal Council he states, “[i]f the same thing had been done to them would they be lawyers? Would they be judges today?

Question: So, you are saying it is an abuse on the rights of the students?

Yes. The General Legal Council is abusing the trust the nation has reposed in them. They are abusing it and it was time they were told in plain language that they should stop the nonsense because what is going on is nonsensical. I cannot understand. As a former director of the law school, I have got to say it nakedly as it is. What they are doing is unbecoming and it was time they stopped.

Question: Is it in terms of failing a large number of students?

They are supervising the mass failure. Are they any better when they were students? Would they have been any better than the students who went to write the exam? Why should they treat the candidates as though they were lawyers?

Even we lawyers, even we Judges, we do not profess to know everything about the law. We will know as much as we need to know to go about daily in the courtroom. We do not profess to know everything. It is only God who is omnipotent and omniscient, and not human beings. So, the members of the General Legal Council to the extent that they have arrogated to themselves, powers they do not have, they must be told so in plain language, they do not have. What they are trying to do is just perpetrating fraud on unsuspecting students. You come and write the exam, you will pass. Then you write and only 128 [pass].

Injustice in Legal Education

Quite a number of Ghanaians have dreams of becoming lawyers. However, this dream may never materialize with the current way legal education is handled in this country. The current legal education system is not transparent with its examination structure, in the sense that even lecturers cannot examine their own students, neither do students always get access to their raw scores. It is alleged that the legal fraternity has been created to preserve an elitist outlook. Many people have found that securing justice is too expensive with the kind of fees that the few lawyers within Ghana charge. There are not many lawyers to serve over 30 million Ghanaians. We need more lawyers to ensure justice is accessible, affordable, and inclusive. Ghana desperately needs to create functional “legal frameworks and institutions [that] promote inclusion by advancing responses to social and economic issues, empowering citizens to shift imbalanced power relations, and expanding the reach and quality of services including access to justice for marginalized groups. Equity can be achieved when effective judicial and legal institutions support equality of opportunity, promote open and accountable governance and guarantee redistributive justice”. The way the GLC is going will not land us here. At present, many Ghanaians who cannot afford the exorbitant fees charged by the few lawyers are excluded from access to justice. It is simple economics: raising supply will reduce costs of access to justice. Agreed, the increase in supply should not be a mass production of poorly trained lawyers but we still need an increase in the production of adequately trained lawyers proportionate to cater for the expanding population and whatever legal needs they may have. Today, Ghana’s prisons are over populated because many have been sitting in prison on remand for up to 16 years according to one CHRAJ report. The only reason they are still sitting there with expired warrants is because of the difficulty in accessing affordable legal assistance. The state is trampling on these people’s rights. The remandees make up almost a quarter of Ghana’s prison population. The GLC is indirectly responsible for the inadequate number of lawyers within Ghana that leads to low accessibility to justice and the corresponding overcrowding mess within our prisons system as well as any attending challenges that arise due to an inadequate number of lawyers in a country.

Professor Kweku Asare

The U.S based Ghanaian lawyer, Professor Kweku Asare and Director of Mountcrest University College, Kwaku Ansah-Asare have both called for the cancelation of the results and the shutting down of the General Legal Council.

Immanuel Okrah Boateng

“Inasmuch as the GLC does not provide jobs for the law professionals, it has no business in determining how many people should enter the job market. GLC is a corrupt entity and must be disbanded by the appropriate authorities. Members of the GLC must not be allowed to continue with their whimsical style of supervising the entry of legal professional students into the law school. What’s happening is clearly an affront to the equal opportunity principle!”

Poku Adusei, Lawyer and Lecturer at University of Ghana School of Law

“A similar dysfunctional system would have failed 95% of us; I mean it would have failed 95% of all the lawyers and judges in Ghana. Let’s not pretend standards have fallen and the students are dummies; they are not.”

CONCLUSION

The students are simply asking for their case to be heard and justice to be served. In pursuit of justice they have suffered police brutality. Thankfully many influential persons in society have come out to publicly condemn what the police did. Conspicuously the current President has remained silent and his silence is very loud as he himself is reputed to be a human rights lawyer. Former President John Agyekum Kufuor has also remained silent. Former President John Jerry Rawlings has condemned the brutalizing of the law graduates. Likewise, former President John Mahama has expressed his regret at the treatment the law students were subjected to. Both the National Democratic Congress and the New Patriotic Party have condemned the police brutalities. The National Executive Council (NEC) of the Private Universities Students Association of Ghana (PUSAG) has also condemned the attack on the law degree holders. OccupyGhana stated, “We have seen footages and photographs that show several infractions against the rule of law and of humaneness on the part of the Police … this Police high-handedness and brutality against students exercising nothing more than their constitutional right to demonstrate and air out their grievances makes a mockery of the democracy we claim to respect, and we wish to unequivocally announce our disgust with that turn of events and to condemn same in no uncertain terms”. The Information Minister, Kojo Oppong Nkrumah said, the confusion was “an embarrassing spectacle and it is unacceptable…Generally, it is totally unacceptable that an otherwise peaceful demonstration by people who want access to legal education will end up in the scenes that we saw on television and social media.” Mr. Gabby Asare Otchere-Darko, is also said to have condemned the police brutality of law students.

But condemning the brutalities is not enough, the nation needs to resolve the challenge that led to the demonstration in the first place. The GLC also needs to answer for why it coerced students to give up their right to challenge the result of an entrance examination. This is borderline illegal. This is not done anywhere in this world where rights of people are upheld. A person sitting for an exam should always retain their right to query the results or challenge its veracity in a competent court of law.

Finally, the Chief Justice putting the blame on the law faculties is unfair. If there is truly a problem with the caliber of students sitting for the entrants exams, then fix the problem at the root so that we can stop disenfranchising students who have already paid in cash, in study and in examinations for four years for a fair chance at gaining entrance into the Ghana School of Law. True leaders do not shift blame, they solve problems.

In December the current Chief justice will retire and it will be up to the President to nominate a new one. The future of legal education to a large extent will depend on the philosophy of this person and whether or not they buy into the legal reforms being suggested. God grant the President the wisdom to choose well. Personally, I do not believe one office should hold this much sway over legal education but it seems to be the case in Ghana for now.

Public Policy analyst, formerly consulted for organizations like the Kofi Annan chaired Africa Progress Panel in Geneva, Switzerland and the NRGI