By Edgar Ayebazibwe
Daily Monitor on Saturday, 12th May 2018 reported that Parliament approved a recommendation by the Legal and Parliamentary Affairs Committee calling for the scrapping of pre-entry exams at LDC to increase the legal practice services in the country, that means that entrants to the Law Development Centre (LDC) will not be subjected to pre-entry exams if a resolution made by Parliament is to beimplemented. Government should abolish the pre-entry exams policy at LDC to increase access to legal services in the country,” the report recommended at page 4.
The resolution of parliament cannot vary a statutory instrument which has force of law. The law council established under section 2 of the Advocates Act administers the Pre-entry exam through the Committee on Legal Education and Training whose mandate is established under section 6A of the Advocates (Amendment) Act, 2002.
The committee is mandated among others to prescribe the professional requirements for admission to the post-graduate Bar Course and qualifications necessary for eligibility for enrolment as an advocate according to section 6(1)(c) of Advocates (Amendment) Act, 2000.With this authority the law council enacted the Advocates (Professional Requirement for Admission to Post Graduate Bar course) (Amendment) Notice which came into force on 17th June 2010. This made pre – entry exam a mandatory prerequisite for a law graduate to acquire a post graduate Diploma which is part of the professional skill and experience before one enrolls as an advocate in Uganda.
Whereas power to make law is a reserve of parliament under Article 79(1) of the constitution of Uganda, parliament may delegate such power to an institution or person of authority, parliament cannot by resolution nullify Advocates (Professional Requirement for Admission to Post Graduate Bar course) (Amendment) Notice. Such kinds of legislation are provided within the law to enable Government to make a small change to the law without having to introduce an entirely new Bill to Parliament.
For parliament to revoke such law-making power, it has to introduce an amendment to the principle legislation, which would require the mandatory procedures for enacting an Act of parliament. In the case of Twinobusingye Severino v Attorney General constitutional Petition 41 of 2011, constitutional Court held that recoemendations of parliament are merely advisory and are not mandatory to government. In Picture Houses Ltd Vs Wednesbury Corporation 1KB 223, at 229, where Greene MR. stated: “If any authority misdirects itself in law, or acts arbitrarily on the basis of considerations which lie outside statutory powers, or unreasonably that its decisions cannot be justified by any objective standard of reasonableness, then it is the duty and function of the courts to pronounce that such decisions are invalid and when these are challenged by any one aggrieved by them and who has the necessary locus standi to do so” .
Therefore, the understanding is that the Legal and Parliamentary Affairs Committee which is established by Rule 175(2)(g) of the Rules of Procedure of parliament cannot approve a resolution to override a legal notice even if such recommendation has been unanimously agreed to by parliament. Such recommendation remains persuasive to the Law Council through the Committee of Legal education and training.
The only way parliament can have its resolution binding is amending section 6(1)(c) Advocates(Amendment) Act, 2000 to forbid the pre-entry exam to the bar course but not a mere resolution.In June 2017, Ghana’s Supreme Court ruled that it is unconstitutional for the General Legal Council to make it mandatory for LLB holders to write entry examinations as well as pass an interview before they are admitted to pursue their professional careers in law, court reached the unanimous decision in an application brought before it by US-based law Professor Kwaku Asare in the case of Prof Stephen Asare v Attorney-General & General Legal Council ACCRA – A.D. 2015
He was challenging the mode of admission of law students into the Ghana School of Law, the constitutionality of the General Legal Council’s imposition of new admission requirements for the professional course and also the constitutionality of the General Legal Council’s policy on reviewing examination scripts and quota admissions system. It also edged the GLC to introduce a quota system for the admission of students by accredited law school faculties to present the huge numbers of LLB holders who get turned out from the faculties.Therefore, the parliament of Uganda cannot by resolution render a statutory instrument void unless it is either done by a competent court or parliament enacts an amendment to the same provision.
The writer is a student of Law.