The President should return the Legal Practitioners Bill 2015 to the National Assembly
By Lamin J Darboe
Twenty seven years ago on 31 December 1988, the current Legal Practitioners Act (LPA 1988) entered into force. Its “objects and reasons” were stated thus: “An Act to establish a General Legal Council, to make provision for the admission of persons to practice as legal practitioners before the courts of The Gambia, to provide for professional discipline of such legal practitioners, and for connected matters”.
A generation later, the toddlers, and in some cases the unborn, as of 1988, are pursuing legal education at both the academic and professional stages of training right here in the Republic of The Gambia. However viewed, this magnificent achievement is in no small way attributable to the establishment of a law faculty at the University of The Gambia, as well as the Gambia Law School, a separate entity that teaches the practical aspects of the profession. Dreams came through for some, are in the pipeline for others, and in the fullness of time, the spiralling inspiration would one day catapult those yet unborn to pursue legal education within the geographical contours of their native homeland.
Even in these relatively early days, there is no question that the establishment and achievements of the University, and the Law School, and the dreams and fulfilments they engendered in the process must be nurtured and protected for all Gambians irrespective of the accidental antecedents of birth.
No matter how packaged, it is crystal clear that the Legal Practitioners Bill 2015 (LPB) – in its current form - is about to kill the dreams of those at the very gates of the profession, and possibly drive others from the pursuit of academic and professional legal education altogether. It is a perplexing bill in that it does nothing other than ring-fenced the profession against wider access. Other than restricting entry for newcomers, it offers no visionary proposals for the development of the profession in the country.
I accept that the combined effects of the University, and the Law School, may markedly shrink the market share of those currently practising. Clearly a frightening prospect, it is nevertheless nowhere near compelling enough to construct protectionist barriers against fellow citizens aspiring to join the profession. If only because the LPB is driven by protectionist considerations, I urge the President not to assent to it in its current form and to return it unsigned to the National Assembly for “reconsideration” as permitted under section 100(3) of the 1997 Constitution of the Republic of The Gambia.
The LPB is starved of appropriate consultation and debate, and for a profession that thrives on open debate, that is quite an unfortunate state of affairs. Little wonder then that a profoundly unreasonable bill is inching its way to becoming a law of the land. That disastrous possibility must be averted until such time that those promoting the LPB are willing to engage in wider consultation and open debate within and outside the profession.
For its “objects and reasons”, the LPB states, exactly as below:
Significant improvement have been made which calls for the repeal of the Legal Practitioners
Act of 1988 and the need to enact an Act for the establishment of the General Legal Council,
admission to practice as a Barrister and Solicitor of the Supreme of the Gambia and to
provide for professional discipline of such legal practitioners.
The Bill seeks to address the issue of pupilage which makes it mandatory for every student
who graduates from the Gambia Law School to serve a year in the State Law office, Judiciary
or with a legal practitioner of at least ten year standing.
It is hope that when passed into law, the Bill will go a long way to provide for the establishment
of the General Legal Council, in addition, supervision, control and discipline of Legal Practitioners
Clearly, there is a General Legal Council under the LPA 1988, and it is performing its functions including that of disciplining members of the profession. There is a regime in place for “admission to practice as a Barrister and Solicitor of the Supreme Court of The Gambia”. Without question, the most contentious issues, the twin-evils, if you like, in the LPB, are the stringent requirements fabricated around the twin controls of “pupilage” and “tenancy”. Indeed the LPB is nothing other than a market control mechanism, a tool to regulate entry into the profession in a manner that does not mutilate the pie too drastically for current practitioners.
As proposed under section 15(2) of the LPB, “The Council may admit a person to practice as a legal practitioner if he or she-
Has attained the age of twenty-one years;
Produces testimonials sufficient to satisfy the Council that he or she is a person of good character;
Holds a Qualifying Certificate;
Is a citizen of The Gambia; and
Has completed one year pupilage with –
A legal practitioner of at least ten years standing in a common law jurisdiction;
The State Law Office;
With the numbers coming out of Law School annually, the State Law Office, and the Judiciary are bereft of capacity to absorb even a third of them. As the years go by, that capacity may well reduce to filling just the natural attritions. In other words, they may have no capacity at all to absorb new entrants other than through normal attrition from resignations, dismissals, deaths, and the like.
As earlier contended, one of the difficult issues is the requisite “one year pupilage with ... A legal practitioner of at least ten years standing in a common law jurisdiction”. The LPB has no mechanism to ensure that legal practitioners “of at least ten years standing in a common law jurisdiction” will be prepared to offer pupilage to even a fraction of those leaving Law School. If the door is closed to non-Gambian practitioners, the proper and honest way to phrase section 15(2)(e)(i) of the LPB is a legal practitioner of at least ten years standing at the Gambian Bar.
How is the pupilage system to be set up and monitored? With the LPB utterly silent on whether the one year mandatory period will be paid or unpaid, or on any criteria except the restrictive one of pupilage with a legal practitioner of at least ten years standing, it is understandable that those at the very doorsteps of the profession are fearful for their future. As private businesses, legal practices in The Gambia may not be required to employ anyone unless they wish to do so. In such a set up, they must not be given any public protection against competition in the legal market place.
In England and Wales, the road block of pupilage has transformed the Bar to a profession of exclusivity. Unless cogent reasons are advanced to the contrary, there is every indication that the proposal to repeal LPA 1988 just to insert the backward nuclear weapon-like provisions on “pupilage” and “tenancy” appears to be founded on the same calculation of restricting entry to the profession. I have not seen anything to convince me otherwise. Having closely compared the provisions of LPA 1988, and the LPB, the similarities in the documents are astounding. The promoters of LPB should be courageous enough to propose amendments to LPA 1988 instead of embark on the obfuscation that this is a brave new proposal to cater for the challenges of a changing legal terrain. Nothing can be further from the reality!
As if the issue of “pupilage” is not disturbing enough, the provision on what the LPB termed “tenancy” creates a further layer of restriction to entering the profession as a full-fledged member. At section 19, the bill states: “A legal practitioner shall not open a legal practice of his or her own unless he or she has at least five [amended by the National Assembly to three] years standing at the Bar during which he or she has worked as a legal practitioner-
under a legal practitioner with at least 10 years standing at the Bar; or
at the State Law Office; or
at the Judiciary”.
As with pupilage, the question of tenancy triggers the same issues. Again, the State Law Office, and the Judiciary, can have no combined capacity to consistently absorb even a fraction of the candidate pool that will be created by the Law School. As the years roll on, what initial capacity there was at these government institutions would reach saturation point. Even with the market as it currently is, legal practices may not be that enthusiastic to expand payroll commitments in an environment with uncertain cash inflow issues. There is a glaring possibility that people with the requisite academic and professional qualifications may never be able to penetrate the tightly shut gates of legal practice should the LPB become law.
When considered alongside pupilage and tenancy, the nationality restriction on entry to the profession is arguably driven by the calculus of access control. Under the LPA 1988, “permanent residents” were granted the opportunity to enter the profession as legal practitioners. That will no longer be possible should the LPB become law. Because of its porous definition under LPA 1988, there may be different policy issues around the question of permanent residency but there is no mistaking the overall restrictive tendency of the LPB. Considered in their totality, the only reasonable conclusion is that an entirely protectionist-driven legislation is being recommended to the President on no compelling ground.
In the second paragraph of its “objects and reasons”, it is stated that “the Bill seeks to address the issue of pupilage which makes it mandatory for every student who graduates from the Gambia Law School to serve a year in the State Law office, Judiciary or with a legal practitioner of at least ten year standing”. It is unclear why the pupilage requirement appears to be restricted to “graduates from the Gambia Law School”. Without wider debate, this particular query, of critical import, may remain unanswered.
In its current form, the LPB appears to also leave those Gambians legally educated in other jurisdictions out in the cold. They have a right to know how the LPB affects them in terms of both their academic and professional education and of course their eventual entry to the profession as legal practitioners should they chose to do so. Under its “subsidiary legislation”, LPA 1988 listed the “recognised jurisdictions” whose “qualifying certificates” entitles one to be admitted into practice in the country. If the composition of that list is changing, the LPB must expressly say so.
It is also disturbing that the rank of Senior Legal Practitioner (SLP) is based entirely on longevity. Under section 53 of the LPB: “The Council may confer the rank of Senior Legal Practitioner on any person who –
has at least thirty years’ standing as a legal practitioner;
has practise consistently as a legal practitioner for not less than fifteen years; and
meets other selection criteria to be prescribed in regulations made by the Council.”
As a learned profession, the rank of SLP should be completely disassociated from mere longevity of “standing as a legal practitioner”. Research and other laudable services to the development of the law must constitute the defining considerations for conferment. It should rightly deserve no respect when longevity is touted as the preeminent consideration for bestowal of the rank. Longevity of service is no longer the sole criteria for recognition in any respectable profession. For the legal profession, it would be utterly scandalous!
Overall, a casual reading of the LPB may suggest it prevents no one from working as a legal practitioner in the country. On deeper reflection, it is impossible to avoid the issue of why the LPB is considered necessary in the first place. In my view, and in the views of all I have consulted with, the LPB is anti-competitive and has the potential to permanently exclude a good many Gambians from entering the profession, and, or setting up their own practices.
Unless these pertinent worries can be laid to rest, the LPB must not become law. And they cannot be laid to rest without wider consultation and debate. Pending that wider debate and consultation with stakeholders including the Law School and its students, and in the interest of the country’s domestic and internationally trained legal professionals, the President should withhold assent and return the LPB to the National Assembly for reconsideration.