Seven Arguments Against CLE’s/KLS Move To Run A Pre-Entry Examination Program First and foremost, I am a top notch legal mind, blue chip in my arguments, and high drawer in my legal logic, and all these, in addition to being trained at both universities of Nairobi and Makerere, authoring 16 books on law, and 33 others in various areas, and being a serial entrepreneur, investor, public speaker, strategist, consultant on collective investment schemes, Inua Kijana Mentor, Rotarian, Red Crosser, speaker and aspiring of over 19 languages, consultant per excellence and board member of various institutions, give me the legitimacy to argue, simply, succinctly, and without verbosity, seven reasons why the ongoing pre-bar examinations in Uganda, and now, the newly introduced pre-bar examinations in Kenya, by my friend, Prof. P.L.O Lumumba, is a nullity in law (if pursued), an illegal act pillared on ultra vires practice, a constitutional infraction on economic and related human rights of families of soon to be lawyers, an affront to the principles of fairness and reasonable, a breach of legitimate expectation, and finally, a shooting in the foot of the CLEs work in regulating and licensing law training institutions. Breathe. But first, let me say what I will not argue against. I will not argue against the failure rate of Kenya school of law, it is merely 33%, whereas the Uganda’s Law Development Center rate is at 52%, and that of Japan is at 78%, and before reforms early this year, the pass rate in Japan was merely 6%, with five trails, after which, you are meant to go back to law school for a new degree. Further, I will not argue for decentralization, or devolution of the same to the various five regions in Kenya (Coastal, Central (Nairobi), Eastern, Rift Valley, and Western (Kisumu), since, whereas the courts can argue, against the dictates of Baron De Montesquieu’s, Spirit of Laws, can issue declaratory judgments leading to creation of new institutions, as can be done during disillusion of monopolies and subsequent fragmentation into new entities to reduce market influence, this will not be my argument. Indeed, whereas the air is thick with the fresh smell of devolution, I am not in the least interested in this axiomatic premise. Maybe later, when we appear before a liberal, activist judge, like the former Chief Justice Mutunga, then, we can argue that. However, I will argue that when my sisters joined law school, they had legitimate expectation that graduating from the university of Nairobi law school means that she can join KSL, and that, graduating from KSL means that she can practice law. So, after graduating with a recognized degree, from an institution licensed and approved by Council for Legal Education, CLE, as well as Law Society of Kenya, and Kenya school of law, why do they not trust my qualifications? Worse still, why do they want me to pay them, a hefty sum of Kshs. 5,000, to approve that I really passed the degree course fair and square. Why not just set a universal exam for all law students, so that we are well ready to join KSL? Let me restate that Dr. Khaminwa, learned Senior Counsel, has stated elsewhere that contending that there is need to find out of my sisters are duly qualified, yet they have a law degree, would be ridiculous, tantamount to the Wednesbury unreasonableness, effectively undermining the principles of proportionality and legitimate expectation. Of course, this belief is based on the logical reasoning that you only go to a new level to learn new things, not to be redundantly throttled with the Paulian old ways. So, we now know that KSL, just over a decade ago, exempted university of Nairobi, and then, for a few years, university of Moi law graduates from attending tis premises because they had extensive clinical education programme ins second year (which lacks in Uganda, so, it is okay for Ugandan graduates to go to law development centre-LDC), and hence, they were allowed to be called to the bar, and practice under pupilage of masters. The world over, there are countries, and legal systems, which allow law students to practice straight using the bachelor’s degree, and a bad examination, administered under the ministry of justice, without attending any further training. This is the case with United States, where, after law school, one can sit bar exams, and practice, and this is the case with several other countries. Further, asking her to sit another examination should be based on the Benthian matrix of the utility of such examination. Now, the purpose of any professional clinical education, as that of LDC, or KSL, is to provide the lacking practical part of the training. This means that the university should test her fluency in legal theory, AFTER teaching her the theory, which they do and award a bachelor’s degree certificate, and then, soon after, the law school, which trains, tests, and awards diploma certificate to show that she is qualified to practice. Now, on the basis of what training is my sisters being tested by the KSL for pre-entry? Do they first organize a one week training, and then, judge her on that basis? They should not judge her on the basis of past training, because, she has been judged, and declared ready. Any such other testing is an affront to her dignity, a strain on her finances, and an exercise in duplicity and redundancy culminating in extreme prejudice to my sisters. In addition, by stating, over and over again, that the university students are half baked, are they not saying that they have failed to delve iron their mandate to regulate the relevance of the curriculum, the pedagogical aptitude of the lecturers, who, for the record, also train at LDC and KSL, and the content of curriculum. Indeed, by saying that the lawyers are half baked, they are saying the universities are masquerading as institutes, are taking my sisterss money for free, and should be asked to refund the money of any student who fails the pre-entry exam based on being half baked. Indeed, if you award me a degree that I am able and ready, and then, another person, wearing the same aprons of government regulatory agency, says I am not ready, am I not to sue the first agency for holding out as a good trainer, and even certifying me? I will come back to this line of arguendo shortly. I would now like to address the matter of my twin sisters joining law school knowing that on graduating, she will be admitted to the KSL or LDC. When you make a regulation, rule amendment, or change in practice, it must not prejudice those who are already in the stream, and who, for want of prior notice, might not have prepared for the new standards. There is a little doctrine in administrative law, which area Prof. PLO has written a book, and is well versed, which argues for protection of interests against breach of legitimate expectation. Indeed, the act to test, and fail, or rather, and pass only 10% of the applicants, is well intended to limit access to higher education. The decision by the KSL and by extension, CLE, is arguably in violation of my sisters’ right to education. The right to education includes the right to access institutions of higher education. Also, KSL might be acting well in excess of its powers. It should allow applicants based on their degrees, and not based on a new test criteria, not in the law. Such act would be then ultra vires, illegal, and in bad taste to principles of natural justice. The content and scope of the instrument conferring the duty or power to train, does not offer power to limit entry based on arbitrary exams, unless provided for in law. Oaky, maybe we need to quote an authority here. [Kasereka vs. Gateway Insurance Company Limited [2003] 2 EA 506.] Further, to bore us again with some citations of theory of legislative enactments, the purpose of clear drafting of content of any law should be do prevent mischief, that is, the mischief rule, and to such extent, the interpretation of provisions must be based on the same idea. The question that my twin sisters will be asking here is, “what is the mischief that KSL seeks to prevent by having this test, whereas we already have degree certificates?”. In essence, the answer will be in another question, “what is the mischief that the KSL is trying to visit upon the Kenyans who have graduated from accredited universities and schools of law?”, and now the answer is clear, to limit access to education. And this is perpendicularly opposed to the letter and spirit of the 2010 constitution, Article 43 of which domesticates the Article 13(2) of the International Covenant on Economic, Social and Cultural Rights and Article 26 of the Universal Declaration of Human Rights, on the right to education extends to institutions of higher educations. Another case law here for the book warms. [Leyla Sahin vs. Turkey European Court of Human Rights Application No. 44774/98 at para 137] All the above areas have been well argued by Republic v Kenya School of Law & another Ex Parte: Ibrahim Maalim Abdullahi [2014] eKLR]. As was lucidly argued, such action as this is illegal and ultra vires as the respondent are trying to come up with ways of locking out qualified applicants from practicing law (Emphasis mine). So, now, let us talk stratagem, or dare I say, politics, after all, Mao was right, nothing works so well, or so bad, without it. First, we learn from the communist manifesto, and I ask my sisters, organize. You are two, in roughly 8,000, in 8 institutions of law training, surely, contributing Kshs. 100 each, will suffice to pay the best team of senior counsel, read Snr. Counsels Muite, Khaminwa, Kibe, etc, to argue the case both ways to the supreme court. Surely, we cannot fail to win, we are many, and the voice of God, is indeed the voice of reason. And if they insist, then, we try the next option. Secondly, we also know that the law is partly what is in the books, and partly, the practice of the same, as guided by the social temperature, and so, I will ask my sisters to borrow a leaf from Oliver Holmes and Max Weber, and yes, from Danny Crane in Boston Legal, and try the case in the media, with explicit knowledge and messages on the suffering of Wanjiku to bring her son to university, and the pain that Akinyi has to undergo to wait for the first pay check form her daughter, or the much awaited lawyer from Naliaka’s family. Do not hesitate to contact Professors. Sihanya Ben, Hon. Orengo James, and Prof. Kithure Kindiki, and ask for their help. They will be very helpful. And when arguing this, we want to engage our politicians, so, let us contact Hon. Hassan Omar, and friends, given his strong position against such flimsy acts of cheap oppression. We must also meet with the most loud, most reckless members of opposition, ready for quick position and a win against the government, and also go to the house and meet various committees, especially the one on education, and the one on legal affairs. We must also at this rate meet he council of governors, and also visit the council of first ladies, after all, when the girl child is meeting yet another hurdle on her path to emancipation thrown by her father, who else to go to, but, as Chinua Achebe says in Things Fall Apart, , to their mother. And while at this, we must identify the leading lights in statehouse who are our friends, progressive individuals, Dan Mwangi, former law student leader, George Abassy Nengo, Casper Sitemba, and of the course the great Nixon Korir, all well placed, powerful, and ready, as always to help the cause of the student of law. This group is mercilessly ruthless, insidiously tactful, and for ever more persistent enough to wear the resistance of the few old guards who want to deny us our position. And did I say we need to meet Baba, the new Mandela, the visiting professor, and the liberator. He is having several meetings here and there, and his party MPs can pass a motion, or resolution, to ensure that we not only block this move, but with the devolution drive, which is his brain child and gift to Kenyans, he can quickly, and easily, oversee the creation of KSL branches in the five regions of Coast, Central (NAIROBI), Eastern, Western, and Rift Valley, and can immediately make sure that we also have the council of governors supporting thig rat move that will raise their revenues, improve their ability of their constituents to access legal services and promote economic development. Of course I know the recent graduates will say they are just interested in the one thing, that is, removal of pre-bar exams. You argue, and rightly so, with deep apprehension, that unless the application is expeditiously heard and the orders sought granted, the application will be rendered moot, further trampling upon your fundamental rights. But hey, that is what keeps the poor people poor, just being interested in the next meal. The enemy we face today plans ahead, thinks ahead, and acts with deep calculation, and a sincere desire that we lose, to that he wins. We do not win against such with short thinking, quick solutions, and snappy positions. We must, as Machiavelli notes in The Prince, not waste this crisis, but utilize it fully, efficiently, and without remorse. And finally, to my sisters, I know that you are well read, after all, you are a Luo. I also know that you feel you can lead this effort, but picking from Lenin in his Magnum Opus, What Is To Be Done, we are all capable, but only a few can lead. Let a few lead us, and let us support them. My considered opinion, this is a matter that shall be won on the streets of the city, and not on the courts of law. …………………………………………………………………… Profile, Ojijo Pascal Ojijo Pascal, a lawyer, author of 49 books, public speaker, consultant, entrepreneur, investor, poet, pianist, speaker of 19 languages, and Inua Kijana Fellow, is the Founder & Lead at GoBigHub, a for profit social enterprise with a 10 year target of being in 1,000 African cities and contributing to at least 1% of the GDP of Africa through connecting local entrepreneurs to local investors. Ojijo believes that the solution to Africa’s poverty, unemployment, and low productivity, lies in (1) connecting local entrepreneurs to local investors to access affordable capital; (2) connecting start up entrepreneurs to successful entrepreneurs for business mentorship; (3) providing private equity investment in scalable youth and women enterprises at maximum of USD. 10,000 per ticket; (4) sensitizing individuals, with special focus on youth and women, to form business and investment clubs to leverage on social capital; and (5) promoting September as world employers month (#BigBossMonth), where employees thank employers for their initiative and creativity in offering them opportunity to build their careers and earn a living. GoBigHub is leading the move away from grants, promoting trade, not aid. GoBigHub charges 5% of the successful deals arranged. Ojijo is privately a consultant in communications (public speaking, strategic planning, and writing); an expert lawyer (ICT law, financial services law, law firm management, and legal rhetoric); a public speaker and coach on financial literacy and personal branding; and a consultant in collective investment schemes (investment companies, investment clubs, provident funds, and cooperatives). Ojijo’s talent and creativity is evidenced in being a best-selling author of 49 books; inventor of financial literacy board game, ChapChap; designer of a software for investment clubs and cooperatives, GoSacco; creator and owner of naniwapi.com, lawpronto.com, allpublicspeakers.com, uzimafoods.com, ugsticks.com, commonsenseapp.net, luopedia.com, and achibela.com. Over a period of 9 years, Ojijo has worked with a broad scope of clientele including Ministry Of Foreign Affairs Cooperative; National Environmental Management Authority(Uganda); Kawanda National Agriculture Research Organization; Gender Ministry (Uganda); Nsamizi Institute(Mpigi-Uganda); 4Cs-Kenya; CREDO-Kenya; KHRC-Kenya; Technoserve; Unity Fund; CICS; FHRI; AIESEC; AYDL; UMYDF; CCEDU; FOWODE; PEDN; and over 20 investment clubs, at least 15 cooperatives; and several other universities, companies, and individuals on various areas of expertise. He offers advisory support in legal and or strategic areas in various boards of investment clubs, cooperatives, Bank of Uganda Financial Literacy Advisory Group, Uganda Financial Literacy Sharing Group (FLISG), and Competitiveness Secretariat of Uganda Ministry of Finance supported Investment Clubs Association of Uganda-ICAU. M: +256776100059. E: ojijo@gobighub.com