By Walter Khobe
The enactment of the 2010 Constitution has created an imperative to align the education of Kenya’s lawyers with the project of transformative constitutionalism. The obligation to change the essential character and methodologies of legal education, and to equip law graduates to participate in the ongoing project of constitutionalism, carries immediate implications for curriculum reform and the training of lawyers in the country.
It should be borne in mind that legal education and training in Kenya has been largely uncritical of unjust legal dogma and practice. The history of Kenya is replete with instances where those few academics who had dared to speak out had received insufficient support from their colleagues and institutions. There are even instances where such academics were repressed by the government. (See in this regard: Maina Kiai ‘Haven of Repression: A Report on the University of Nairobi and Academic Freedom in Kenya’ (1992, Kenya Human Rights Commission); See also Willy Mutunga ‘My Memories of Hastings Wilfred Opinya Okoth-Ogendo from 1968 to 1982’ in Patricia Kameri –Mbote and Collins Odote (eds) The Gallant Academic: Essays in Honour of HWO Okoth –Ogendo (2017, School of Law –University of Nairobi)).
Given the entrenchment of national values and principles of governance in article 10 of the 2010 Constitution, including the values of democracy, social justice, good governance, integrity, transparency e.t.c, there is no doubt that the Kenyan legal system has to develop a system of justice that is consistent with these constitutional values. In ‘Transformative Constitutionalism,’ published in the 2006 issue of the Stellenbosch Law Review, the late South African Chief Justice Pius Langa, discusses at length the core role played by legal education in the transformation of legal culture which is necessary for the transformation of a post-authoritarian state and society. In focusing on legal education, Justice Langa stressed that the education of lawyers for a post-authoritarian era must ensure that the graduates move beyond the traditional canons of knowledge of legal principles and the development of analytical arguments. Over and above those established features of legal education, graduates must be committed to implementing the values central to the Constitution, so that these values permeate every aspect of legal practice. Thus the law curricula has to be aligned to pay attention to issues that affect the majority of the population, such as, poverty, social justice, corruption, impunity, and the lack of access to justice. It is from this angle that evaluation of legal education and the process of accreditation of law schools in Kenya must be approached.
Unfortunately the debate with respect to reforms to legal education in Kenya has been uncritical with no sense or appreciation that the core goal of such an endeavour must be towards equipping the lawyers of tomorrow with the ability to take part in the transformation of the Kenyan state and society in the direction envisioned by the 2010 Constitution. This is also sadly true of the report by the Task Force on Legal Sector Reforms chaired by Fred Ojiambo (SC). No theoretical considerations were given to, nor prior research undertaken about, the need to align legal education in Kenya with the emancipatory goals of the 2010 Constitution. This ideally should be the starting of any evaluation of the adequacy of the current regime of legal education and any redress measures that should be proposed to reform the prevailing regime.
It should be recalled that criticisms of legal education in Kenya that has led to agitation for reforms have been mainly geared at technical expertise by graduates. This criticism has tended to be extrapolated to all graduates and not just law graduates. Thus there is a need to consider legal education reforms in its broader context, it is necessary to review the national higher education terrain and to consider issues of transformation within the education sector, and then the legal profession. The criticisms alluded to speak to concerns related to a range of knowledge outcomes and skills outcomes, such as critical thinking and research capabilities, as well as applied competencies, such as ethics and integrity, communication and literacy, numeracy, information technology, problem-solving, teamwork, and skills to transfer knowledge. Thus it is incumbent upon law schools to develop programmes that can improve outcomes in the indentified areas. However, the quest to attain these goals should also be realistic and be alive to the challenge that besets many Kenyan universities (especially public universities) that are constrained by severely limited resources.
In sum, legal education reforms should be geared towards the realisation of the emancipatory ambition of the 2010 Constitution. Law teaching and training must embrace the values and principles of the Constitution, and analytical inquiry that challenges the education for hierarchy and old power relations that the 2010 Constitution seeks to overturn (see Duncan Kennedy, ‘Legal Education as Training for Hierarchy’, in David Kairys (ed.) The Politics of Law: A Progressive Critique (1998, Basic Books).