Judge quashes directive barring foreigners from law school

Prof PLO Lumumba, Kenya School of Law chief executive officer. PHOTO | FILE 

By BRIAN WASUNA

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Summary

• Justice John Mativo nullified the directive, arguing that the Council of Legal Education’s (CLE) acted discriminatively by barring foreign students from the training programme.
• The CLE had argued that Sections 12 and 13 of the Advocates Act restricts foreign students from pursuing the ATP at the Kenya School of Law.
• The directive had threatened to lock out foreigners who have studied law in Kenya.

The High Court has quashed the Council of Legal Education’s (CLE) decision to bar non-citizens from admission to the Kenya School of Law, paving the way for foreigners to enrol for the Advocates Training Programme (ATP).

Justice John Mativo nullified the directive, arguing that the CLE had misinterpreted sections of the Advocates Act that set conditions for admission of students to the Kenya School of Law and acted discriminatively by barring foreign students from the training programme.

The Kenya School of Law is the sole trainer for the programme, which is the final step to being admitted to the roll of advocates of the High Court of Kenya.

The CLE had argued that Sections 12 and 13 of the Advocates Act restricts foreign students from pursuing the ATP at the Kenya School of Law.

Section 12 of the Advocates Act (5) provides that no person shall be qualified to be admitted as an advocate in Kenya unless he or she is a citizen of Kenya, Rwanda, Burundi, Uganda or Tanzania and he or she is duly qualified in accordance with Section 13 of the Act, which spells out the professional and academic qualifications for an advocate.

The directive had threatened to lock out foreigners who have studied law in Kenya.

Justice Mativo ruled that the directive also violated the Kenyan Constitution as it discriminated against some students, and that the CLE did not give any foreign student an opportunity to be heard before barring them from the programme.

“I find that the decision complained of is not supported by law. The CLE misconstrued the provisions of Sections 12 and 13 of the Advocates Act, hence the impugned decision is a nullity,” the court ruled.

The Kenya School of Law was also found to have breached the petitioners’ constitutionally guaranteed rights causing the court to nullify its decision.

“An order is hereby issued quashing (a) the decision contained in the letter dated October 25, 2016 directing the Kenya School of Law not to admit non-Kenyans into the ATP for qualifying as advocates candidates for automatic admission to the Roll of Advocates in Kenya, and, (b) and also quashing the internal memo dated November 17, 2016 to all non-Kenyans,” the court ruled.

The petition was filed by eight students from Uganda and South Sudan, some of who had studied in South Africa before seeking admission to the Kenya School of Law.

Patrick Lumumba, the Kenya School of Law chief executive officer, had in November last year said postgraduate students from Uganda, Tanzania, Burundi and Rwanda would no longer be accepted beginning January 2017.

Prof Lumumba, in an internal memo dated November 17, said the decision was made following a directive from the CLE.

Justice Mativo added that interpreting the two sections of the Advocates Act to mean foreigners are not allowed to pursue the ATP was in breach of the Constitution and in turn rendered them null and void.

Attorney-General Githu Muigai had argued that allowing foreign students to pursue the ATP at the Kenya School of Law had in the past been done by mistake.

Prof Muigai, who is a member of the CLE, argued that foreigners could only be admitted to the Kenya School of Law after being enlisted to the roll of advocates in their home countries.

“There has been an error in procedure of admitting foreign nationals to the ATP. The Kenya School of Law should not admit students from the East African states to train to qualify as advocates for automatic admission to the roll of advocates and that such students can only be admitted as advocates in Kenya upon being admitted as advocates in their countries,” the A-G said.

Kulundu Bitonye, the CLE chief executive, argued in court papers that the directive was issued after a special task force analysed the Advocates Act and concluded that all foreigners admitted to the school in the past had been erroneously allowed to pursue the ATP.

But one of the petitioners who is a South Sudan national—Victoria Modong Taban — said she has lived in Kenya since 1994 and completed her primary, secondary and university education in Kenya, hence it would be unfair to now lock her out of the Kenya School of Law