LEGAL EDUCATION IN GHANA AND THE ‘250:1000’ PROBLEM: CLEARING THE DEBRIS

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This is my third article on this topic. In this article, I wish to clear the debris left behind by my friend, Professor Stephen Kwaku Asare, in his rejoinder to my substantive two-part article published by Graphic Online on Monday, August 17, 2015. I will take the disputed points one-by-one and address them accordingly.

Alleged Arbitrariness of the GLC 

Professor Kwaku Asare mounts his rejoinder, substantially on the claim that the decision by the GLC (General Legal Council) to cap the enrolment of lawyers at 250 is arbitrary. Beyond the persistent complaints and expression of personal dislike for the GLC’s decision, he is yet to demonstrate a clear basis for his allegation. This lack of clarity leaves one to doubt what exactly he means by ‘arbitrary.’ Let me explain further:

Alleged arbitrariness in this context may be hinged on two mutually exclusive grounds:

  1. That the GLC does not have the power to determine the number of persons to call to the bar every year; or
  2. That the GLC has the power to determine the numbers but that the present 250 cap is unreasonable.

This clarification is important because the ground one chooses will, necessarily, determine how one analyses the problem and offers a solution to it.

My reading of the rejoinder discloses that Prof. Asare, most likely, hinges his allegation of arbitrariness on the first grounds. So, he crosses swords with me:

“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 …”

Then, he declares:

“What the GLC cannot do is to arbitrary (sic) 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.”

This declaration seems to have some face value. But a closer scrutiny will show that it does not in any way help us going forward. This is because he has again qualified the power (the existence or otherwise of which power is the issue at stake) with “arbitrary”. In other words, he sets out to show that the GLC does not have the power to cap the numbers; you ask him why; and he simply says the GLC cannot cap the numbers arbitrarily. That, clearly, is a fallacy of circular reasoning – he alleges one thing and uses that same thing to prove that which he alleges. So as it stands, his claim remains a farce.

It is true that sometimes we tend to focus too much on winning the argument (than on helping the discussion) that we tend to make outrageous denials. How could one deny that the number of persons who are admitted to a professional body has no nexus whatsoever with the standards of that professional conduct? Even in high school, house captains know very well that the number of persons in their dorms affects the standard of discipline. Let me not spend much time on this.

Inability or Unwillingness

Prof. Asare insists, contrary to my suggestion, that the 250:1000 problem is as a result of inadequate facilities at the disposal of the GLC. To substantiate this, he goes back to yank out a 2010 (5 years ago) speech by Her Ladyship the Chief Justice, Mrs. G. Wood when she inaugurated the Kumasi Campus of the Ghana Law School. At the ceremony, Her Ladyship lamented over lack of facilities, but indicated the steps that the GLC intended to take to solve the problem. One of such steps was to create other campuses of the Ghana School of Law.

Permit me to say, respectfully, that Prof. Asare’s use of Her Ladyship’s 2010 speech as evidence to support his claim in 2015 is very dishonest. This is because the good Professor of Accounting knows or ought to have known that the GLC has already opened another satellite campus at GIMPA in addition to the Makola and Kumasi campuses since the day of the speech (in 2010), thus solving the facility problem.

As a matter of fact, the Makola campus of the Ghana School of Law used to accommodate 200 students for each year group as at 2011. The current number of students on that campus has now reduced to about 100 for each class, making the Makola campus almost half-empty.

This turn of even has caused a senior lecturer at the Ghana School of Law, (one of my favourites, actually), Mr. Maxwell Opoku-Agyemang, to lament over the under-utilization of the Makola campus in the light of the teeming lawyer-aspirants warming up behind the School’s gates hoping to be admitted. He was reported as saying:

“How can an institution with one campus admit over two hundred but admit same number after opening two more campuses. You have only 31 students at a campus that can accommodate almost 100 students and yet there is a backlog of applicants.”

This report makes it clear that willingness (rather than ability) is the solution. Yet, in the teeth of all this evidence, even from an insider, Prof. Asare, still insists, stubbornly, that inadequate facilities is the reason for the 250:1000 problem.

Demand-Supply-Price Analogy

The last, and perhaps the lowest point in Prof. Asare’s rejoinder is that which applies the demand-supply-price model or the ‘invisible hand’ analytic of Economics to the situation here. Economists say that, all things being equal, price falls when supply exceeds demand. Extrapolating this to the present situation of the number of lawyers, their geographical distribution, and the question of affordability, Professor Asare says that producing more lawyers will cause the price of legal services to fall, making it possible for many more people to afford legal services.

This reasoning, as it were, is supposed to be a counter to my argument that a country’s need for lawyers should not be determined, as he and his disciples have persisted and still persist to do, by simply dividing the population by the number of lawyers in the country; and that the calculation should also include a variable indicating the ability of the population to afford legal services. It is also supposed to counter my argument that even if we produce 1 million lawyers today, all of them will be practicing in the 3 big cities of Accra, Kumasi and Sekondi-Takoradi, leaving the larger part of the country still unlawyered.

Now, let us see how helpless this crude application of the demand-supply-price analytic is in this discussion: An increase in the production of lawyers only speaks to the supply side of the analysis. We all know, however, that demand has two components – willingness and ability. We also know that there is a point below which price cannot fall. That point is reached when the cost of producing the goods or services does not fall below the price at which it is sold. That point I certainly not zero price. Therefore  legal services cannot be free.

At this point we can say that Prof. Azar’s reference to our mutual friend who runs HelpLaw, a pro bono law office, is either disingenuous or naïve. Such practices are not at zero cost. What actually happens is that someone other than the litigant or the lawyer is paying for the services. So that example does not in anyway advance Prof. Asare’s course in any way.

Going forward: what is the lowest price at which a lawyer will offer his services? Could the fisherman in my village, Aveme, or in the thousands of towns and villages outside Accra, Kumasi and Sekondi-Takoradi, living on less that a dollar a day, afford that lowest price? That is the real question to be answered. Not a simple division of the country’s population by the number of lawyers. It is therefore extremely simplistic to just scream in infinity the cliché – when supply increases price falls – and apply it in such a rudimentary manner to a very sophisticated matter as this.

In other words, producing more lawyers is completely myopic a solution when it comes to the distribution of income aspect of the discussion; and the distribution of income directly relates to demand (the ability to afford legal services), which, in turn, directly affects the ability of people outside the 3 big cities to afford the assumed ‘affordable’ legal services; which, then, directly affects the distribution of lawyers in the entire country, which distribution of lawyers is the original problem that Prof. Asare and his ardent disciples seek to solve by calling for literally an unlimited production of lawyers.

Therefore, by simply increasing the number of lawyers without a corresponding success at evening out the distribution of money throughout the country, I insist, one cannot expect lawyers to be evenly distributed. After all (and as I have already mentioned) lawyers are not moved by justice, they are moved by money.

Conclusion

I have noticed that Prof. Asare has interpreted my reflections as confusing and, in some instances, tacitly as an opposition the cry for admitting more lawyers to the bar. That interpretation cannot be honest, as it cannot be traced to my article. In a sophisticated society, it should be possible for us subject a proposed process for the attainment of a goal to scrutiny even if we all believe in the same goal. What I have spent my time doing on this, therefore, is to show that the diagnosis of the problem and the proposals being put across are bereft of critical scrutiny and are purely based on emotions. For example, how could a person say that there is no legitimate basis for a society to control the number of people who join a particular profession or trade? Or that outsourcing the professional training of lawyers to the universities will automatically result in an increase in the number of lawyers when the GLC still controls the tap?

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Legal Education in Ghana and the ‘250:1000’ Problem: Setting the Records Straight

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This is the rejoinder by Prof. Stephen Kwaku Asare, lawyer and Professor of Accounting, to my two-part article published on  Monday, August 17, 2015, by the Graphic Online. 

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It is hard to get the gravamen of Justice Srem Sai’s 2-part article, on the above subject matter. 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”.

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. 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.”