Kenyans have recently been treated to a blatant disregard of the rule of law by the Council of Legal Education (CLE). In manifest defiance of a judgment by the High Court, the CLE has gone ahead to threaten Moi University, School of Law with closure in disregard and defiance of a finding by the High Court that it lacks that mandate.
It should be recalled that the High Court following petitions by Moi University and Mount Kenya University, found that regulatory action by the CLE against the universities’ law schools were unconstitutional and illegal. In particular, the High Court found that: first, the CLE lacks authority to licence universities with respect to running law schools as that is a statutory function of the Council for University Education (CUE); second, the CLE was illegally constituted at the time of its purported regulatory actions thus any decision made by the body was illegal; and lastly, with respect to Moi University, the CLE evaluation process violated the institution’s right to fair administrative action as enshrined in article 47 of the Constitution. Following from this, the High Court quashed the impugned regulatory decisions by the CLE. It is, therefore, unacceptable for CLE to claim that it is has a right to regulate legal education providers given that parliament has a discretion on which body to vest with that mandate and it is not a must that it should be the CLE.
The CLE appealed the findings of the High Court to the Court of Appeal. As this appeal is still pending determination, CLE now purports that it is at liberty to ignore the High Court judgment that has not been reversed and implement the impugned quashed regulatory action. This manifest defiance of valid court orders is a threat to the rule of law and paints a picture of an actor in the legal sector that does not care about constitutional values and principles. Even more, the selective pursuit of Moi University and not Mount Kenya University, while both are beneficiaries of the High Court order, is a blatant act of discrimination. Any neutral observer of the selective harassment and attempts to malign Moi University in the media by CLE would not fail to notice that there is more than meets the eye to the malicious actions by the CLE.
It is welcome that courts have so far provided oversight over the arbitrary actions by the CLE. However, more actors should move in to reign in this institution which is clearly rogue. The relevant parliamentary committee and the Commission on Administrative Justice should move in and conduct a systemic audit of the institution given that it appears that there is a systemic rot in the Council of Legal Education. This is so because a look at the Daily Cause Lists of the Judicial Review, and the Constitutional and Human Rights Divisions of the High Court shows that after the Attorney-General, the second most frequent Respondent to suits in the two divisions is the CLE. Further in the numerous cases that have been resolved, CLE has lost all suits with the High Court making startling findings of violation of rights of students and institutions. This shows that there is a systemic problem with the way the Council of Legal Education is being managed.
The persons in charge of the institution appear to believe that they are above the law and that the legal education sector should be run in a manner that conforms to their personal whim and interests. This is unacceptable in the post-2010 dispensation that envisages that all state and non-state actors must respect the values and principles of the Constitution, including the Bill of Rights. Given that it is a body whose members are drawn from the legal sector, there is a legitimate expectation that the CLE would be an example to other regulatory bodies on adherence to the dictates of the Constitution. At the moment, this is not the case. The Council for Legal Education is now the case study of regulatory arbitrariness and personal capture of an institution to serve personal interests and whim.