It is time to operationalize the Legal Institute Act No. 27 of 2012
By: Isaac Kawai Steve
Section 6 (1) of the Legal Institute Act establishes the South Sudan Legal Institute. The functions of that institute as provided under section 9 (1) (a) and (c) of the aforementioned Act are among others to provide training for the acquisition of legal knowledge, professional skills and experience to persons intending to practice law in South Sudan, organize and conduct continuing training in legal education.
Talking of profession, Law is one of the traditional professions being Theology and medicine before other professions were established. According to Black Law Dictionary, a profession is a vocation requiring advanced education and training. Every profession, more so, the legal profession everywhere has restrictions in terms of entry requirements, professional operation and regulation of performance, professional advancement and fiduciary relationship.
I believe it is for the aforestated reasons that the Parliament enacted the South Sudan Legal Institute No. 27 of 2012.
In the region, Kenya has Kenya School of Law (KSL) and for the case of Uganda, there is the Law Development Centre (LDC) where all those who have degrees in law and are interested to practice law go to for advanced training (Advocates Training Programme). Those two institutions should ensure that the quality of legal training is maintained for the benefit of all.
To improve and maintain the quality of legal training in South Sudan, the Ministry of Justice needs to operationalize the Legal Institute Act. This needs to be done with utmost urgency so as to prevent the legal profession from being flooded by quacks. The Institute would then provide and administer a Bar Examination and ensure that Trainee Advocates does proper training under the right advocates before they can be licensed to practice law.
The South Sudan’s Advocates Act, No. 55 of 2013 provides for the entry requirements into the profession. However, there is need for tightening the noose so as to ensure that those who are licensed to practice law are those who have the requisite knowledge to do so.
The Advocates Act under section 12 (3) provides thus, ‘The provisions of subsection (2)( d) shall not apply to a professor of law, Holder of Master Degree (LLM), teaching staff of faculty of Law for at least four years, former judge or former third legal Counsel of the Ministry of Justice’. It is my argument that such a provision is what among other things waters down the quality of the legal practice in this country.
It is one thing to qualify as a lawyer and yet, another thing to qualify to practice law. It is therefore possible that someone who falls under the category provided in section 12 (3) of the Advocates Act has never stepped foot in a law firm and arguably has no idea on how to practice law. Legal practice requires learning the art of practice and procedures of court first-hand before one can be left to practice as an advocate.
For instance, In Kenya where I trained from, one does not become an advocate or get exempted from training as an advocate by virtue of having obtained an LLM or PhD. One has to go to Kenya School of Law, sit for and pass the Council of Legal Education Bar Examination and afterwards undertake a rigorous compulsory pupilage under a Pupil Master of not less than five (5) years standing. I was in Kenya School of Law class with Victoria Miyandazi who was awaiting to be conferred with PhD from the University of Oxford in the United Kingdom. She did not get exempted from attending KSL and doing Pupillage by virtue of having obtained an LLM and was in the process of obtaining a PhD.
She had to go through the dreadful Advocates training programme so as to be an advocate of the High Court of Kenya.
Section 15 of the Advocates Act provides for training of advocate trainees. However, the said section does not talk about the standing of the advocate under whom a trainee can train. Such a provision is open to exploitation and abuse by unscrupulous advocate trainees. The standing of the trainer should be explicitly mentioned. Trainees should only be trained by those who have been in the legal practice for quite a while. It therefore follows that section 15 of the Advocates Act needs to be forthwith amended.
Steps should also be taken to ensure that those who studied law out of the country are taken through rigorous checks before they could be admitted to the Bar in South Sudan. Those who have not met the qualifications for admission to the Bar of the country they come from should first meet the qualifications of South Sudan before they could be admitted to the Bar. One of the qualifications must include sitting for the Bar Exam and undergoing training under an advocate who has practiced for not less than five years. Otherwise, why should someone who is not qualified to practice law in the country they trained from be qualified to practice law in South Sudan? That will be entertaining mediocrity in South Sudan. The Bar Council must also look into the high school certificates of the persons who trained out of the country. For instance, someone who comes from Kenya and claims to have an LLB must demonstrate that he/she got at least a C+ in high school. That is the minimum grade someone can go to a university with. Even Kenya School of Law which is a postgraduate institution looks into the mean grade and the English Language grade that someone got in the secondary education. I am not calling for the revocation of those who have already been licensed under loose requirements. The law shuns retroactivity.
As a member of the East Africa Community (EAC), we need to harmonize our legal training with the rest of the member states as required by Article 126 of the Treaty for the Establishment of the East Africa Community. The harmonization would only be possible if we aim at building a strong legal system with lawyers, judges, the police and other stakeholders who are properly trained and know what is required of them.
It is encouraging that the advocates leading the different factions of the South Sudan sharply divided Bar Association have finally agreed to come together to conduct an election to elect one leadership. It is a great shame to say the least, that lawyers can be divided to the extent of having five factions. But time is not lost on us to salvage the situation. Those who will get elected needs to take into consideration the things I have herein discussed. They need to have practical and time bound transformation agenda to reform the Bar and the Bench.
The writer is an advocate; LLB (Moi University) and PGD (Kenya School of Law). He can be reached via 0928514167or email: email@example.com