Earlier this week, the Council of Legal Education released the results of students who sat their bar examinations at the Kenya School of Law last November. The results were not too surprising because it followed the same trajectory that has been evident for bar examinations in Kenya for quite some time. The fact that only 308 of the over 1,500 candidates passed the tests was not new but again triggered debate on what really was the cause of this dismal performance.
This puny pass rate is not unique to Kenya. It can be said that bar examinations worldwide tend to come with massive failures for the candidates.
Just last month, the California State Bar Association released the results of the state’s bar examinations which had been taken in February: Only 31.4 per cent of the applicants passed.
This was an increase over the same period last year when only 27 per cent had passed the test! In May, there were reports that the General Legal Council of Ghana had set up a committee to investigate why there were persistent mass failures at the Ghana School of Law for several years running. In the latest exams for the year, only nine per cent of the students had passed the exam.
Bar examinations are taken by holders of a law degree who then wish to become members of the legal profession as advocates.
In Kenya, they are required to undergo the Advocates Training Programme. The training is undertaken at the Kenya School of Law but the examination is administered by the Council of Legal Education.
Those who pass this examination get called to the bar, that is, are admitted as Advocates of the High Court of Kenya and thereby get the right and power to represent clients and earn a living by offering the skills of advocacy on behalf of clients.
Needless to say, those who fail these examinations remain unable to earn a living from advocacy.
Because the Advocates Training Programme is undertaken after obtaining a law degree, its structure is different from that of a basic academic qualification for a law degree. Rather, it is more of a vocational course that is geared at equipping the students with practical skills to build upon the academic and theoretical foundation of a university degree.
It involves subjects such as drafting of legal documentation, civil and criminal litigation, trial advocacy including professional ethics and procedure.
The reality is that the bar examination in any country is often difficult and failures tend to be more than the people who excel at the first attempt.
The leap from academic law to law in practice often proves overwhelming for students seeking admission to the legal bar in any jurisdiction.
For example, in Kenya, students have to sit nine papers often within a week. Even then , this is a recent development and a departure from the previous examination system where students would have to sit as many as 15 papers.
In California, the bar examination candidates take the test over three days during which they have to prepare to discuss the law in 14 subjects and a multi-state exam and performance exam. In the performance exam, the candidates are expected to compile a legal document and write an analytical brief out of a series of cases, statues and legal academic literature.
There are many, including in Kenya, who have had to sit the exams several times in an endeavour to become advocates. At some point, about a decade ago, there were suggestions within the legal profession in Kenya to limit the number of times during which a person could attempt the bar examinations. This would have meant that failures beyond a given number would disqualify a person from taking the exam again, effectively ending the dream of any student of ever practising as an advocate in Kenya.
Those who are persuaded that there is merit in limiting the number of attempts a bar candidate should be allowed to make before being rendered incapable of being an advocate may have to rethink this.
Two men and a woman have shown a tenacity and perseverance that deserve mention. John DeZell first took the Oregon bar exam in 1965 but did not pass until his tenth attempt in 1989.
By this time, he had decided to become an insurance salesman. Pauline Bandy finally passed the California bar exam on her 14th try in 2007.
But the record for persistence in taking bar exams lies with Maxy D. Filer who passed the California bar exam in 1991 aged 61 and in his 48th attempt!
His first unsuccessful shot at the bar exam was in 1966 when his sons were in elementary school. He was indefatigable and followed this up with two annual attempts until he passed and joined his sons who were already practising law when their father passed the exam.
Many wondered whether the prevalent failure rate is a deliberate act on the examination bodies (the Council of Legal Education in Kenya) to provide a barrier by managing the numbers of those entering the legal profession.
This reasoning goes that those already entrenched in the profession see new entrants as a further competition which results in a less satisfying split of the legal services cake. This is unlikely to be the case because the council is independent of the advocates and serves merely as a regulator of legal education.
On the other hand, examination bodies and the bar association argue that the exams are intended to test the mettle of would-be advocates with the intention of ensuring that the public is guaranteed of quality legal services. It is said that the principal reason for the failure in bar examinations is that the students exhibit poor study habits and weak analytical skills development— the cardinal skills for proper functioning as an advocate.
The argument that the failures in a bar examination or any examination for that matter is necessarily an indication of weak intellect requires challenge. Some of the people on record as having failed their bar examinations were distinguished academics and later became excellent legal practitioners after the initial failures.
For example, in 2005, Prof Kathleen Sullivan failed the California bar examination despite having passed the bar exams for the states of New York and Massachusetts. At the time, she was a constitutional law scholar who had also been dean at the Stanford Law School.
She passed on her next attempt in 2006 but her failure appeared to have eroded the essence and value of the exam itself rather than her academic and advocacy abilities.
That a dean and renowned constitutional scholar of Prof Sullivan’s pedigree failed a bar examination brought some wind into the sails of sceptics who think that bar exams are useless means by which lawyers’ cartels in the profession are bolstered.
It was argued that if the results of the bar examination were a determinant of a future within the law, then failure of a mind like Sullivan should have brought the examination bodies to examine the utility of the bar exams.
Apart from academics such as Prof Sullivan, other persons who made distinguished careers in law and elsewhere also failed their exams in the first sitting. An example is Hilary Clinton who candidly records that she sat the bar exams of Arkansas and Washington DC and failed the latter.
She would nevertheless go on to become a successful legal practitioner in Arkansas, leave alone her undeniable successes in diplomacy, public policy and politics.
So to all who passed or failed the bar exams this week, there are some lessons worthy of reflection: the bar exam in any country is firstly not an indication of intelligence. It may be more of a test on the practical tenets of law and the individual’s ability to recall these on the date of the exam, and no more.
Secondly, the candidates need to be assured that there are many examples which prove this: a failure or pass in itself is not an indication of the trajectory of how a candidate’s career will turn out whether in advocacy or any other career path that a person may wish to take.
Thirdly, persistence in the face of seemingly insurmountable challenges is required in any professional undertaking and not least in advocacy. Those whose results shows that they did not succeed this time must keep trying. That persistence will prove useful for them and their clients when they get to the bar as advocates.
The writer is head of legal, Nation Media Group
