Francis Xavier Kojo Sosu
Two opposition Members of Parliament (MPs) are plotting to sponsor a Private Member’s Bill to be introduced into Parliament of Ghana, a new legal education reform to exclude Chief Justice as well as other Justices of the Supreme Court from the General Legal Council (GLC).
MP for South Dayi Lawyer Rockson Nelson Dafeamekpor and his counterpart from Madina, Lawyer Francis Xavier Kojo Sosu are seeking to redefine functions of the General Legal Council to pave way for urgent reforms pertaining to legal education in Ghana including accreditation to faculties of law with the necessary facilities to run professional law courses.
According to a memo sighted by DGN Online dated October 26, 2021 which was served by the two MPs on the Clerk of Parliament, they are requesting legislative draft office to put together a “bill to be submitted to the speaker for amendment to exclude Chief Justice and other Justices of Supreme Court from serving on the General Legal Council”.
Below is the memo:
“Sir, we write to request Legislative Drafting Office to draft for subsequent submission to Speaker, a bill to amend the Legal Profession Acts 1960 Act 32 to exclude the Chief Justice and other Justices of the Supreme Court from the General Legal Council to redefine the GLC and to provide for reforms in the Legal Education such that accredited faculties of law with the requisite facilities will be licensed to run professional law courses, provide for discipline of lawyers and related matters to give effect to Article 37 (1) of the 1992 Constitution.
Please find sample of the memo and the proposal submitted for the bill below;
MEMO
TO: THE CLERK TO PARLIAMENT
FROM: THE HONOURABLE MEMBER FOR SOUTH DAYI
(HON. ROCKSON-NELSON ETSE K. DAFEAMEKPOR, ESQ.)
THE HONOURABLE MEMBER FOR MADINA
(HON. FRANCIS XAVIER KOJO SOSU, ESQ.)
SUBJECT: INTRODUCTION OF PRIVATE MEMBERS’ BILL
DATE: 26TH OCTOBER, 2021
Sir, we write to request the Legislative Drafting Office to draft for subsequent submission to the Speaker, a Bill to amend the Legal Professions Act, 1960, Act 32, to exclude the Chief Justice as well as other Justices of the Supreme Court from the General Legal Council (GLC), to redefine the functions of the GLC and to provide for reforms in Legal Education such that accredited Faculties of Law with the requisite facilities would be licensed to run professional law courses, provide for discipline of lawyers and related matters to give effect to Article 37(1) of the 1992 Constitution.
Please find attached our proposals for the said Bill.
Submitted please
THE HONOURABLE MEMBER FOR SOUTH DAYI
(HON. ROCKSON-NELSON ETSE K. DAFEAMEKPOR)
THE HONOURABLE MEMBER FOR MADINA
(HON. FRANCIS XAVIER KOJO SOSU)
PROPOSAL FOR AMENDMENT OF THE LEGAL PROFESSIONS ACT, 1960, ACT 32, TO EXCLUDE THE CHIEF JUSTICE AS WELL AS OTHER JUSTICES OF THE SUPREME COURT FROM THE GENERAL LEGAL COUNCIL (GLC) AND REDEFINE THE FUNCTIONS OF GLC, PROVIDE FOR REFORMS IN LEGAL EDUCATION SUCH THAT FACULTIES OF LAW WITH REQUISITE FACILITIES WOULD BE LICENSED TO RUN PROFESSIONAL LAW COURSES, PROVIDE FOR DISCIPLINE OF LAWYERS AND RELATED MATTERS TO GIVE EFFECT TO ARTICLE 37(1) OF THE 1992 CONSTITUTION.
Introduction:
Following recent reports of mass failure in the Law School Entrance Exams and related outcry from the general public, and given the fact that this has been the trends for some time now, it is important to review the policy direction behind the running of Law School on by the General Legal Counsel.
Challenges with Law School Admission and need for Reforms
In 2017, more than eighty (80) percent of students were said to have failed, as only 91 out of the over 500 candidates passed. In 2018, only nine (9) percent of the students who sat the law exam were said to have passed. In 2019, only 128 out of 1,820 candidates who sat for the entrance exams passed, representing 7 percent.
The 28 percent pass in this year’s admissions into the Ghana School of Law represents a systemic problem that must be of concern to all Democracy watchers, Parliament as an institution, and everyone who believes in equality and fairness before the law as a critical component to the creation of a free and fair society with ample opportunities for everyone.
Lack of adequate space or deliberate attempt not to increase lawyers
The argument of the Law School and the General Legal Council has been that there do not have adequate space to admit all the students who apply and hence the need to increase the marking scheme to fail as much as the school can just so to reduce the number of students who would actually make it. This years’ experience where about 499 students made the 50% mark but could not gain access to the law school gives the more reasons why we must take a second look at how legal Education is organized in Ghana.
At the height of dealing with the issue the Legal Profession (Professional and Post-Call Law Course) Regulation, 2018 (L.I 2355) was passed to remove issues of interviews after the entrance exams but the said law never cured the defects of lack of space to increase intake of qualified LLB holders seeking opportunity to read the professional Law Course. L.I 2355 must therefore be repealed and replaced with an L.I that will take into consideration new provisions in the proposed Amendment to create a competitive market for running Law School Professional Courses with the GLC as regulator who ensures quality through the Board of Legal Education.
Given this background it is important to introduce an amendment to the mother Act, to remove the monopoly of running professional Law Courses from the General Legal Council and to provide rules and regulations for allowing other faculties and individual institutions with the requisite facilities and faculty to run the professional Law Courses. The General Legal Council which would be reconstituted under this new law would serve as a regulator.
This will help young Ghanaians seeking opportunities for Legal Education to get so in line with Article 37(1) of the 1992 Constitution which provides that “the State shall endeavor to secure and protect a social order founded on the ideals and principles of freedom, equality, justice, probity and accountability as enshrined in Chapter 5 of this Constitution; and in particular, the State shall direct its policy towards ensuring every citizen has equality of rights, obligations and opportunities before the law.”
Removal of Chief Justice and Justices of Court from General Legal Council
The Organization of Legal Profession is placed under the care of the General Legal Council. Section 1 provided for the establishment of the General Legal Council (GLC) and put the Council in charge of organization of Legal Education and upholding of Professional conducts. For the purposes of organizing Legal Education, the GLC works through the Board of Legal Education and for the Purposes of upholding Professional standards, the GLC works through the Disciplinary Committee provided for in Section 17 of Act 32. For each of these functions there have been serious challenges with procedures and substantive matters of law which eventually had to end up in Court. These Courts and judges are directly answerable to the Chief Justice in his Administrative Role. The Same Chief Justice deals with matters of discipline of judges, and with issues of promotions transfers among many others. Where there is a matter in respect of Legal Education or Lawyer’s discipline which the Chief Justice has a direct interest in, it becomes repugnant to good consciences and rules of natural justices and fairness to challenge such matters in the regular courts. The inclusion of the Chief Justice and justices of the Superior Courts on the GLC is against constitutional presumptions of fairness, natural justices and administrative justice enshrined in Article 23 of the 1992 Constitution.
It is based on the above, that it has become necessary to amend various sections in Act 32 to remove the Chief Justice and Other justices of the Supreme Court from the General Legal Council. This will be in line with the principles of transparency and accountability and effective separation of powers as guaranteed by the 1992 Constitution of the Republic.
Discipline of Lawyers and Upholding Professional standards
Section 15 of the Professional Bodies Registration Decree, 1973 (NRCD 143) provides that professional bodies will make rules for admission, ethics and also provide for disciplinary matters. The Professional Body of the Practice of Law is the Ghana Bar Association and the discipline of Lawyers must be by the Bar Association. Given the fact that as A Professional Association, not all members subscribe to ti, the Bar Council can set up a disciplinary Committee made up of Senior Lawyers, representatives from young Lawyer’s Forum and persons who had previously held high judicial Officers to deal generally with professional misconduct of Lawyers. Being an Administrative body of the Bar Council, the decisions of the Disciplinary Body would have effect of a High Court decision which would be appealable to the Court of Appeal with Clear procedures of that appeal. Beings an Administrative Body, it would also be subject to judicial review by the High Courts. This will also cure the mischief of judges holdng high judicial offices having to sit on Disciplinary committee of the General Legal Council only for another judge much lower than them review their decisions which is not very good for rule of law. This will aslo be consistent with international practice and the general professional bodies decree where discipline is generally a peer-review affairs.
It is accordingly proposed as follows:
MEMORANDUM TO THE LEGAL PROFESSIONS (AMENDMENT) BILL, 2021
Section 8(1) requires that a lawyer shall not practice as a solicitor unless issued with a valid annual licence issued by the General Legal Council.
This section is therefore amended to ensure that the licence issued by the General Legal Council does not expire so far as the lawyer remains enrolled as lawyer.
Section 13 is amended to provide for Uniformed Bar Examination to be Conducted by Board of Legal Education under the supervision of the General Legal Council and also provides for licensing of law faculties to run the Professional Course and to prepare students for the Unified Bar Examinations
Section 15 is amended to remove the Chief Justice from the Board of Legal Education and to provide for definite term for the Board of Legal Education
Section 17 is amended to provide for a Disciplinary Committee by the Ghana Bar Association which shall be responsible to hear disciplinary matters in respect of all Lawyers in Ghana and enforce disciplinary standards
Paragraph 2(2) provides that The Chairman of the General Legal Council shall be the Chief Justice and the deputy chairman shall be the most senior of the other Judges of the Supreme Court.
Paragraph 2(1)(a) also provides for the inclusion of the two most senior Judges of the Supreme Court after the chairman and the deputy chairman.
This creates an issue especially in instances where the decision of General Legal Council are challenged in the Court of Appeal and the Judges have to review the decisions of their superiors.
The Legal Professions Act of Belize provides under Section 3(2) for the Composition of the General Legal Council in the following manner:
(2) The Council shall consist of,
(a) the Attorney General;
(b) the President of the Bar Association; and
(c) 5 persons elected from amongst identified Association of Lawyers, at least, two of whom shall be persons of no less than ten years standing in the profession.
This Bill therefore seeks to ensure that all forms of the likelihood of bias are eliminated by the removal of the Judiciary from the membership of the General Legal Council.
DRAFT LEGAL PROFESSIONS (AMENDMENT) BILL 2021
A Bill to amend the Legal Professions Act, 1960 (ACT 32) to ensure that the Chief Justice as well as other Justices of the Court are not permitted to constitute a part of the General Legal Council and to Provide for legal education and discipline of lawyers and related matters.
Section 8 (1) of Act 32 is amended
The principal enactment is amended in Section 8(1)
by the substitution of Section 8(1) of
(1)(a) A person other than the Attorney-General or an officer of his department who has been enrolled as a lawyer shall be issued a valid licence by the General Legal Council to be known as “a Solicitor’s Licence” in the form set out in the Second Schedule to this Act. [deleted by Stamp Duty Act 2005 (Act 689) s.51(2)]
(b) A lawyer issued with a solicitor’s licence shall be required to pay an annual subscription fee as determined by the General Legal Council.
(c) A lawyer who fails to pay the annual subscription fee for a particular year, shall be required to pay a fine in addition to the subscription fee for that year.
(d) The licence as issued by the General Legal Council shall not expire but shall remain valid so far as the name of the lawyer remains on the roll of lawyers.
Section 13 (1) of Act 32 is amended
The principal enactment is amended in Section 13(1)
by the substitution of Section 13(1)
(1)(a)(a) There shall be established a Uniformed Bar Examination that shall be conducted twice every year across the Country.
(1) (a) (b) The General Legal Council through the Board of Legal Education shall receive, investigate, regulate and accredit Law Faculties and in various public or private universities to run professional law programs to prepare candidates of the Bar Examinations.
(1) (a) (c) The Board of Legal Education shall conduct Bar Examinations in designated Examination Centers in Each of the Regions of Ghana subject to the payment of approved fees for such examinations.
(a) (d) The Board of Legal Education shall cause to be published the requisite marking schemes and generate annual examination reports on students performance and make annual recommendations for improvement of legal education.
Section 13 (2) of Act 32 is amended
The principal enactment is amended in Section 13(1)
by the substitution of Section 13(2)
(2) (a) The Council may set up an run a school of law which would also prepare students for the Unified Bar Examinations.
(b) The Council Shall organize the Unified Bar Examination through accredited public and private universities and institutions with the requisite faculty and facilities to run the professional course.
(c) The shall within 90 days of upon coming into force of this enactment take steps to receive, review and accredit various universities with Law faculties to run the professional Law Course
Section 15 (2) of Act 32 is amended
The principal enactment is amended in Section 15(2)
by the substitution of Section 15(2)(a)
15(2)(a) Deletion of section 15(a) of Act 32
(b) Deletion of “nominated by the Chief Justice” and to include “Nominated by the General Legal Council”
15(4) is amended and the term of office for the Board of Legal Education shall be 3 years subject a re-nomination.
Section 17 (1) of Act 32 is amended
The principal enactment is amended in Section 17(1)
by the substitution of Section 17(1)(1)
17(1)(1) (a) There shall be established a Disciplinary Committee of the Ghana Bar Association which shall concern itself with professional standard of practicing lawyers in Ghana.
(b) The disciplinary Committee shall not be less than three and not more than 7 persons and shall consist of;
i) a person who has held a high judicial office
ii) Senior members of the Bar nominated and voted for to represent
iii) Representative of the young Lawyers forum
iv) Two people nominated by the General Legal Council
(c) The Disciplinary Committee shall serve for 2 years term which term may be renewed By the Ghana Bar Association
Paragraph 2 of the First Schedule of Act 32 is amended
The principal enactment is amended in Paragraph 2 of the First Schedule
by the deletion of subparagraph (1)(a)
By the substitution of subparagraph 2 of
(2). The Chairman and Deputy Chairman shall be elected by from among the members of the council by the council members who shall have one vote each
(a) The Chairman and Deputy Chairman shall hold office for four (4) years
(b) a person may be re-elected as Chairman or Deputy Chairman
Paragraph 3 of the First Schedule of Act 32 is amended
The principal enactment is amended in Paragraph 2 of the First Schedule
By the deletion of subparagraph (a)
By the deletion of subparagraph (d)
This development stems from unsuccessful attempts to by parliament to get 499 law students admitted into the Ghana School of Law including directive to compel the GLC but was shot down by the Attorney General and Minister of Justice in a response to parliament.
By Vincent Kubi