The council that oversees access to the legal profession in Uganda has just experienced a thorough defeat in the high court. A full bench found the council had not passed the regulations it should long ago have put in place regulating admission of candidates to the roll of advocates. Instead it made ad hoc decisions about admission, something that was “wrong and must stop”. The council was also told that it was acting against the spirit of the East African Community Treaty which frowned on “protectionism” and that it could not unfairly discriminate against Ugandan would-be advocates with training and qualifications from other common law countries.
At the heart of this case stands a forlorn, would-be advocate. Ugandan Tony Katungi is keen to join the profession but he found that the Law Council put obstacles in his way, delaying access to the profession and making it more difficult and more expensive.
His case addresses several problems caused by the council in relation to the admission of lawyers to practice, with the court ultimately finding that the council misconceived its role in relation to certain legal requirements and neglected its role as mandated by other sections of the law.
Katungi, like many other legal hopefuls, had his training both in Uganda and beyond. He started off by obtaining his law degree at home. After graduation, however, he went to Kenya for the next phase, studying for his specialised bar course at the Kenya Law School. When he returned home to Uganda he completed all the requirements for admission to the bar there. But when he asked the council for the certificate that would allow him to enroll as an advocate, he ran into trouble: his experience in Kenya was discounted and he was told he needed to re-do a year of supervised practice with a local practice.
The court said that from the council's letter to Katungi it was clear that his work and training at the Kenya Law School was not considered at all. The full title of the Act made clear that its intention was to make access to the Ugandan bar “easier”. The council had no power to alter the main objective of the law, but had to focus on the “spirit” behind its enactment.
The law envisaged that the council would make regulations about relevant aspects of admission. But, said the judges, “we have not come across any (such) regulations”. In their absence, what the council had done was to give itself “powers to consider applications on a case by case basis which is very wrong and must stop.”
Instead, it “must publish regulations for all Ugandans” eligible to practice law in that country about the requirements they need to fulfil.
Obviously, the council’s intention was to protect the profession from “quack lawyers or persons with quack qualifications”. While this was important, the law made provision for admission of Ugandans with a law degree and who had a qualification that would allow him or her to be enrolled in any common law country. But there was no indication that the council recognized Katungi’s bar course qualification from Kenya, which is a common law jurisdiction, when it decided that he had to spend an extra year under supervision.
This was contrary to the spirit of the East African Community Treaty. Uganda had signed the East African Community Common Market Protocol and the council should bear in mind the implications, namely that there was no room for “protectionism” and that the ultimate solution sought was “harmonization”.
The council, having “failed in its statutory duty” to make regulations as required by the Advocates (Amendment) Act, opted instead to “consider individual applications without any regulations”, a practice that prejudiced Ugandans who had acquired professional skill and experience outside the borders.
The court thus reversed the council’s decision prescribing further supervision for Katungi, and ordered that he be given his certificate within 30 days.
Katungi and others in his position will focus their celebrations on the court’s clarification that Ugandans who train outside the country must not be discriminated against when they apply for admission to practice, as long as they meet certain requirements.
But others readers will find good reading in the last three paragraphs of the judgment, aimed specifically at the Law Council and its failure to fulfil certain duties.
The court stresses that the council had not enacted the regulations required to regularize the qualification of people applying to become advocates. This was despite the fact that the council was required to do so under the Advocates (Amendment) Act.
Not just that: the council was required by other sections of that law to make similar regulations, but had not done so. “This has created a spiral of confusion and uncertainty where Ugandans who obtain degrees outside Uganda or those who fail to be admitted for the Bar Course after obtaining degrees in Uganda are left languishing (in) the streets without a chance of admissibility” and their names cannot be added to the roll of advocates.
The law council needed to enact these regulations, said the court, so that students could make well-informed decisions when they chose where to study.
And then comes this distinctive line: “It is irrational and irregular for the Law Council to deal with Ugandans like with a magic spell whose wand is uncertain.”
The legal profession could not “be subjected to such whims”.
There’s another telling-off a few lines further: “(I)n today’s world, the Law Council needs to be alive to the fact that many Ugandans study law degrees out of the country not because they’re intellectually incompetent but simply because the numbers of students who qualify are too many for the universities and the law development centre to accommodate.”
The council should not unfairly discriminate against those students who studied outside the country, and favour those who studied in Uganda.
It’s an extraordinary thing to discover. The law council, which enjoys an image as a law-abiding body, one that upholds legal standards and will not hesitate to keep aspirant lawyers out if they don’t strictly qualify under each letter of the law, has not followed the law in relation to its own duties. And its failure to do so hurts young lawyers by excluding them from the very profession that they had worked so hard to join.