Why do so many students fail the bar exam?

Amid ongoing controversy over the advocate training system for university law graduates in Kenya, and a 9% pass rate in the country’s latest bar examinations, a judge has called for a review of the system.

Bar examinations are administered by the Kenyan Council of Legal Education, or CLE, and held at the end of the Advocates Training Programme offered by the Kenya School of Law, or KSL, to determine qualified lawyers to be admitted to the bar. The emphasis in the programme is on practical training.

Last month, the high court outlawed pre-bar examinations for students who studied in local universities, a decision that has been appealed by the Kenya School of Law whose mandate is to develop professional legal development courses for lawyers and other actors in the legal sector.

The number of law graduates passing bar examinations in Kenya has been declining over the years. Early last month, Kenyan High Court Judge John Mativo ordered an investigation during a case filed by two students seeking a re-mark, into why many law graduates are failing bar examinations.

In his ruling, Justice Mativo observed that it is either poor quality training offered at the Kenya School of Law, or low-quality degrees from Kenyan universities, that could be the root cause of the failures. Mativo was also concerned about the increased number of cases – two or three every week – being filed in the high court by KSL students seeking a re-mark of their examinations.

Worrying decline

“For several years now, there has been a worrying drop in the percentage of candidates passing the bar examinations,” he said.

“The magnitude of the problem is evidenced by the fact that this court has been flooded with petitions filed by students challenging various decisions made by the CLE and the KSL, with many of these petitions triggered by failure to pass the examinations while others touch of admissions to the KSL,” the judge said.

“I propose as I hereby do, that a study be urgently undertaken,” the judge ruled.

In a quick rejoinder, KSL’s Chief Executive Officer, Professor Otieno Lumumba, said the school offered a rigorous training programme with a set curriculum delivered by lecturers who are lead practitioners in academia, the bar and bench. Lumumba was quoted in a local daily saying that since 2015, administering of the bar examinations has been vested in the Council of Legal Education and, in terms of section 8(1)(f) of the Legal Education Act, the KSL has no role in bar examinations. However, he said all examinations at the KSL and at the council are administered and marked professionally.

Lumumba further dismissed reports that the mass failure rate was a conduit to generate money for the institution. He said the claim "misrepresents the activities of the school and makes it look like the school conducts the examinations and has deliberate conspiracy to fail students to gain financially”.

Faith Waigwa, vice-president of the Law Society of Kenya, said whereas the failures of students could not be a cash cow for the institutions, the Council for Legal Education made money from re-sits.

Paying to re-sit – And passing

Students are required to sit for nine papers in total and for every paper failed, one pays to retake it.

“Re-sitting a paper is US$100 and re-marking costs US$150. This means that the more failures you have the more money you generate, and this is wrong,” said Waigwa.

She said trends show that those who request a re-mark end up passing.

“How do they explain that high pass rate among re-marks? The students should be refunded the money because they were not supposed to fail in the first place,” she said.

CLE Chief Executive Officer Kulundu Bitonye confirmed that last year's examinations posted the worst results and blamed this on inadequate teaching facilities. He disclosed that of the 2,000 law students who sat the bar examinations last year on first attempt, only 180 passed.

Bitonye admitted that the failure rate was not a new trend and in the previous years, the pass rate had been between 20-23%. “That is the trend and we have never had a pass rate of 30%, but a 9% pass rate against the increasing enrolment numbers is not just shocking but disappointing as well,” said Bitonye.

Students who spoke to University World News said there is a huge disconnect between the law school syllabus and the Council for Legal Education’s bar examinations. Smith Mbalasi and his colleague Alvin Muhandik who sat for the bar examinations this year, said most of the syllabus covered at the Kenya School of Law is not reflected in the examinations.

“The school teaches the students and the exam is set by council. Most of the time the council does not even know what has been taught, hence leading to massive failures,” said Muhandik.

Poor facilities and resources

However, he also attributed the failures to poor facilities and resources.

“Some of the universities training lawyers do not even have libraries or working space and we have raised these issues which have never been taken up by universities and the ministry,” said Bitonye.

In an interview with University World News, George Majimbo, an advocate of the High Court of Kenya who successfully sat for the bar examinations last year, said the exams are never easy. “There is so much reading one has to do. I read almost 20,000 pages of materials in preparation for the bar examinations and I will confirm that this was not exhaustive,” said Majimbo.

The reason for the higher number of students failing the exams, according to Majimbo, is not academic but rather regulatory. He said that in a year, nearly 2,000 students join the Kenya School of Law to pursue the Advocate Training Programme and all of them sit for the bar exams. If a good number of them were to pass on the first sitting that would mean that the burden would be passed to the Chief Justice to admit large numbers of advocates to the bar.

Majimbo said that the KSL has a weak curriculum that repeats what is trained at undergraduate level, instead of offering practical training to students. He called for a curriculum review and incorporation of practical skills and training to prepare law graduates for professional work.