The Legal Education and Training Bill, 2022

 MEMORANDUM

1.                  The Purpose / Rationale of the Bill

The purpose of the Bill is to create an enabling legal regime that is calculated to improve the quality of legal education in Uganda. Universities in Uganda today churn out hundreds of lawyers every year, who are so undertrained and ill-equipped that they can hardly help anyone with the simplest legal problem. There is too much theoretical cram-work and too little practical training, thus rendering our universities a mockery of themselves as bastions of knowledge. There is not much real learning going on in universities – and that is really very embarrassing.

Consequently, the Bill aims at producing graduates who are thoroughly educated, well trained and equipped, to effectively handle important legal and other development matters. Graduates of law should be truly useful as such to society. For instance, they should be employable. By and large, this is not the case today.

The Bill recognizes that it is uneconomic for Government to continue funding postgraduate legal education, yet there are many viable alternative avenues for even better quality training at accredited public and private universities. It is the spirit of the Bill that Government should cut costs, by mainly concentrating on regulation and supervision ­– not actual service delivery.

The Bill appreciates that unlike creating more “LDCs,” the de-monopolization of the Bar course by devolving it to universities is cheaper and therefore more affordable for Ugandan taxpayers, since universities already have the necessary infrastructure and materials to ably teach the course’s components. Creating more “LDCs” will require land, furniture, reading materials, staff members and so on. It is very costly for Government and definitely time consuming.

2.                  The Objectives of the Bill

The objectives of the Bill are:

(a)         To impart quality knowledge in students and produce lawyers of high academic standards, who are competent to handle complex legal matters.

(b)          To reduce the time spent in school by prospective lawyers, by reducing the current study period of five years to four years, so that eventual graduates can use the extra time for more productive things like pursuing further education or getting absorbed into the job market.

(c)       To create employment and other related opportunities for law practitioners and support staff at universities and other tertiary institutions, due to more teaching needs.

(d)       To bring service delivery closer to the people of Uganda, through established universities and other tertiary institutions, in line with Government’s decentralization and liberalization policies and strategies.

(e)        To reduce the financial burden on the Government of Uganda and donor community, through incurring unnecessary expenses, by funding postgraduate legal education at the Law Development Centre, whose services can be better provided by other service providers, particularly universities and other tertiary institutions.

(f)            To streamline and harness the regulatory and supervisory frameworks of the National Council for Higher Education and the Law Council, already existing at university level, in order to ensure good quality teaching and high learning standards.

3.               Summary of the Bill

3.1.          Part 1 of the Bill, incorporating clauses 1 to 4, deals with preliminary matters relating to its short title, application, commencement and interpretation of words and phrases used.

3.2.         Part 2 of the Bill, incorporating clauses 5 to 11, deals with defining legal education and training, its objectives and regulation, empowers universities and other tertiary institutions to conduct legal education and training, introduces mandatory practical sessions, introduces national law examinations and addresses holders of foreign legal qualifications.

3.3.         Part 3 of the Bill, incorporating clauses 12 to 14, provides for special arrangements for holders of recognized degrees in law, repeals the Law Development Centre Act, Cap. 132 and provides for dealing with the Centre’s assets and liabilities.

3.4.     Part 4 of the Bill, incorporating clauses 15 to 16, provides for miscellaneous provisions on offences and penalties for obstructing Council officers and omissions to carry out duties primarily imposed by law. It also empowers the responsible Minister to make regulations to give effect to the Act.

3.5.         The Schedule of the Bill gives the value of the currency point.

 

Bakampa Brian Baryaguma

Initiator of the Bill

Mobile:            +256753124713

Email:              bakampasenior@gmail.com

Web:                www.huntedthinker.blogspot.ug

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THE LEGAL EDUCATION AND TRAINING BILL, 2022

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ARRANGEMENT OF CLAUSES

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PART 1 – PRELIMINARY

1. Short Title
2. Application
3. Commencement
4. Interpretation

PART 2 – PROVISION OF LEGAL EDUCATION AND TRAINING

5. Legal Education and Training Defined
6. Objectives of Legal Education and Training
7. Regulation of Legal Education and Training
8. Universities and Other Tertiary Institutions to Provide Legal Education and Training
9. Mandatory Practical Sessions
10. National Law Examination
11. Holders of Foreign Legal Qualifications

PART 3­ – TRANSITIONAL PROVISIONS

12. Special Arrangements for Holders of Recognized Degrees in Law
13. Repeal and Savings
14. Assets and Liabilities of the Law Development Centre

PART 4 – MISCELLANEOUS

15. Offences and Penalties
16. Regulations

SCHEDULE

Currency Point

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A BILL FOR AN ACT

ENTITLED

THE LEGAL EDUCATION AND TRAINING ACT, 2022

An Act to regulate legal education and training in institutions of higher learning; combine postgraduate practical legal training with undergraduate academic legal education; repeal the Law Development Centre Act, Cap 132; and to provide for other related matters.

BE IT ENACTED by Parliament as follows:

PART 1 – PRELIMINARY

1.                  Short Title

This Act may be cited as the Legal Education and Training Act, 2022.

2.                  Application

This Act shall apply to institutions of higher learning offering undergraduate law programs.

3.                  Commencement

(1)               This Act shall come into force on a date appointed by the Minister, by statutory instrument.

(2)               The Minister may appoint different dates for different provisions of this Act.

4.                  Interpretation

In this Act, unless the context otherwise requires–

(a)                “Act” means this Act;

(b)               “agent” means employee, delegate, contractor, including an independent contractor;

(c)                “ICT” means Information Communication Technology;

(d)               “Law Council” means the Law Council established under the Advocates Act, Cap. 267;

(e)                “Minister” means the Minister responsible for education;

(f)                “National Council” means the National Council for Higher Education established under the Universities and Other Tertiary Institutions Act, 2001;

(g)               “person” means natural, or corporate entities;

(h)               “tertiary institution” means a public or private institution, duly established or registered under the Universities and Other Tertiary Institutions Act, 2001;

(i)                 “university” means a public or private university, duly established or registered under the Universities and Other Tertiary Institutions Act, 2001.

PART 2 – PROVISION OF LEGAL EDUCATION AND TRAINING

5.                  Legal Education and Training Defined

For purposes of this Act, legal education and training means academic and practical teaching in courses of study in substantive and procedural law, including but not limited to, lectures, tutorials, moots, clerkship, examinations and research, leading to the award of certificates, diplomas, or degrees.

6.                  Objectives of Legal Education and Training

The objectives of legal education and training shall include, but not limited to, the following –

(a)                to teach students laws, principles and concepts of the laws, for the acquisition of legal knowledge, professional skills and experience;

(b)               to teach students to apply the laws, legal principles and concepts, to real-life situations;

(c)                to provide training on the basic skills of legal practice such as drafting, adjudicating, counseling, negotiating and advocacy techniques; and

(d)               to guide students on professional behavior and conduct.

7.                  Regulation of Legal Education and Training

(1)               The Law Council shall supervise and control legal education and training in Uganda, in consultation with the National Council.

(2)               Supervision and control shall entail setting accreditation standards for law faculties and schools, including admission requirements, approving courses of study, duration of study, classroom space and facilities, ICT connectivity, library facilities and management, professional qualifications of academic staff and teaching methods.

(3)               In case of conflicting views between the Law Council and the National Council, the latter shall prevail.

8.                  Universities and Other Tertiary Institutions to Provide Legal Education and Training

(1)               A university or tertiary institution may provide legal education and training courses to students wishing to pursue studies in law.

(2)               The head, by whatever title called, of a department, faculty, or school of legal education and training, of a university or tertiary institution, shall, within three months of the close of the academic year, submit annual quality assurance reports to the Law Council and the National Council.

(3)               The annual quality assurance report shall state the following –

(a)                quality of academic staff and their qualifications;

(b)               staff development programs;

(c)                ratios of staff to students;

(d)               content, design and duration of courses of study;

(e)                quality of teaching and examination methods;

(f)                availability of facilities, notably classroom space, staff office space, library, ratios of books to students and ICT connectivity; and

(g)               quality of graduates in the job market.

(4)               The Law Council, in consultation with the National Council, may within three months after receiving the annual quality assurance report, make binding recommendations to the reporting department, faculty, or school of legal education and training.

9.                  Mandatory Practical Sessions

(1)               A university shall administer practical legal training to students in the third year and fourth year of study, including, but not limited to, legal drafting, moot sessions and clerkship.

(2)               Nothing in this section shall prevent a university from administering practical legal training earlier.

10.              National Law Examination

(1)               The Law Council shall set a national law examination to be sat for by–

(a)                degree students, in the last semester, of the last academic year of study;

(b)               diploma students, in the last term, of the last academic year of study.

(2)               A degree student who passes the national law examination may apply for admission to the Roll of Advocates in Uganda.

(3)               For avoidance of doubt, management of the national law examination shall be within the sole discretion and mandate of the Law Council, without recourse to the National Council.

11.              Holders of Foreign Legal Qualifications

(1)               A person, being a citizen of Uganda, or ordinarily resident in Uganda, who holds a law degree or other equivalent legal qualifications, from an institution outside Uganda, shall enroll in a university in Uganda of his or her choice, to study and be examined in core subjects, designated by the Law Council, by regulations.

(2)               For purposes of this Act, a person is ordinarily resident in Uganda, if he or she has a permanent place of abode in Uganda, or exhibits an intention never to leave.

PART 3­ – TRANSITIONAL PROVISIONS

12.              Special Arrangements for Holders of Recognized Degrees in Law

(1)               A university may make special arrangements relating to instruction, examination or otherwise, for the acquisition of professional skill and experience, for holders of recognized degrees in law, who at the commencement of this Act are not eligible for admission to the Roll of Advocates in Uganda.

(2)               The university shall set a special examination for candidates at the end of the course.

(3)               A candidate who passes the special examination may apply for admission to the Roll of Advocates in Uganda.

(4)               For avoidance of doubt, the institution and management of special arrangements shall be within the sole discretion and mandate of the university.

13.              Repeal and Savings

(1)               The Law Development Centre Act, Cap 132 in force immediately before the commencement of this Act shall stand repealed at the full commencement of this Act.

(2)               Any statutory instrument made under the Law Development Centre Act repealed under subsection (1) and which is in force immediately before the commencement of this Act, shall remain in force, so far as it is not inconsistent with this Act, until it is revoked by a statutory instrument made under this Act and until that revocation, shall be deemed to have been made under this Act.

(3)               Until the full commencement of this Act, any authorization granted under the repealed Act and anything done under that Act shall continue to take effect as if done under this Act, unless it is expressly or by necessary implication revoked under this Act.

14.              Assets and Liabilities of the Law Development Centre

All assets and liabilities of the Law Development Centre shall be dealt with in accordance with the laws on winding up in Uganda.

PART 4 – MISCELLANEOUS

15.              Offences and Penalties

(1)               Any person, or agent of the person, who–

(a)                obstructs an officer or agent of the National Council, or the Law Council, in the performance of his or her duties;

(b)               contravenes any provision of this Act, or of Regulations made under it;

by commission, or omission, commits an offence and is liable on conviction:

(i)                 in case of a natural person, to a fine of not less than fifty currency points, or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment;

(ii)               in case of a corporate person, to a fine of not less than one hundred currency points.

(2)               Where a person guilty of an offence under subsection (1) is–

(a)                a body of persons being a body corporate, every director and corporation secretary of the body corporate shall be deemed to be guilty of that offence;

(b)               a body of persons being a firm, every partner of that firm shall be deemed to be guilty of that offence.

(3)               No person shall be convicted for an offence under subsection (2) if he or she proves that the offence was committed without his or her knowledge, or that he or she exercised due diligence to prevent the commission of the offence.

(4)               One currency point shall be equivalent to the amount specified in the Schedule to this Act.

(5)               The Minister may, by statutory instrument, after consultation with the minister responsible for finance, revise the currency point.

(6)               For purposes of this section, “body corporate” includes an agency, department, or organ of Government, and “person” includes employees thereof.

16.              Regulations

The Minister may, by statutory instrument, make regulations for enforcement and better carrying out of the provisions of this Act.

 

 

 

Cross references:

Advocates Act, Cap. 267.

Companies Act, No. 1 of 2012.

Insolvency Act, No. 14 of 2011.

Law Development Centre Act, Cap. 132.

Universities and Other Tertiary Institutions Act, 2001.

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SCHEDULE

Section 15

One currency point is equivalent to twenty thousand Uganda shillings.

Nature and Scope of Self-defence under the UN Charter and Customary International Law

By Bakampa Brian Baryaguma

[Dip. Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB (Hons)–Mak]

bakampasenior@gmail.com; www.huntedthinker.blogspot.ug

October 2022

1.                  Introduction

John Dryden remarked that, “War is the trade of kings.”^[1] Hence, on many occasions, the world’s kings led it into horrible incidents of human sacrilege, where human life was de-sanctified,^[2] with innocent civilians and soldiers used as pawns dying en masse. The vast majority of these wars were fought or resisted and prolonged in the name of self-defence.

1.1.            Understanding Self-defence

Self-defence refers to the use of force to repel an attack or imminent threat of attack directed against oneself, one’s close associates or a legally protected interest against an unlawful attack.^[3] It covers those planning, threatening, harboring, perpetrating and providing material support essential to an armed attack.^[4] Regardless of the tool used, the goal of self-defence is to survive and escape without injury by deterring or stopping aggressive behavior, but not to win a fight or harm another person per se.

Self-defence in international law refers to the inherent right of a state to use of force in response to an armed attack.^[5] It is traced to the “Caroline” incident of 29 December 1837,^[6] during which an expedition of Canadian militia, under the authority of Great Britain, crossed the Niagara River to the United States shore, burnt an American steamer called Caroline and untied it from its moorings leading to its destruction.^[7] Tensions ensued between the U.S. and Great Britain involving threats of war, but were resolved later – in 1842 – with mutual agreement. On behalf of the U.S., the Secretary of State, Daniel Webster said that a state must show, “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”^[8] The British envoy, Lord Ashburton (Alexander Baring), agreed with this statement, which consequently is frequently invoked for the proposition that a state may use proportionate force in self-defence against “imminent” threats.^[9] Other scholars, however, link self-defence with the power and prerogative of states to wage wars whereby, “… a nation which considered itself to be wronged by another State and the intention of advancing 'good' was entitled to go to war to punish the wrongdoer …”.^[10]

1.2.            Customary International Law Defined

Customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties.^[11] It results from a general and consistent practice of states that they follow from a sense of legal obligation.^[12] Examples of customary international laws are the doctrine of non-refoulement^[13] and the granting of immunity for visiting heads of state.^[14]

Under Article 38 (1) (b), (c) and (d) of the Statute of the International Court of Justice, customary international law is sourced from international customs evidencing general practices accepted as law, general principles of law recognized by civilized nations, judicial decisions and the teachings of the most highly qualified publicists of the various nations. Hence, customary international law can be established by showing state practice and opinio juris,^[15] which means a subjective obligation, a sense on behalf of a state that it is bound to the law in question.^[16]

2.                  Nature and Scope of Self-defence under the U.N. Charter and Customary International Law

Use of force is an ancient phenomenon in the history of human and state relations. But wars are nasty and unpleasant. Thus, in 1945, the nations of the world, under the auspices of the Charter of the United Nations (hereinafter “the U.N. Charter”), covenanted and undertook to eliminate the nuisance of war by maintaining international peace and security through “tak[ing] effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;”^[17] and, “… develop[ing] friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”^[18]

The U.N. Charter aspires to achieve these objectives by outlawing the use of force in their interactions. Article 2 (4) of the Charter prohibits the use of force, stating that, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

However, there are exceptions to this prohibition,^[19] one of which is self-defence, as provided under Article 51 of the U.N. Charter, which inter alia states that, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.”

The nature and scope of self-defence are implicit in the language of Article 51 of the U.N. Charter and in customary international law as discussed below.

2.1.            Nature of Self-defence

A joint reading of both the statement of Secretary Daniel Webster in the 1837 Caroline incident and Article 51 of the U.N. Charter reveals the following as comprising the nature of self-defence:

(i)                 Self-defence is a right.

Self-defence as a right. A state is therefore entitled to defend itself in response to an armed attack against it and/or its interests.

(ii)               Self-defence is inherent.

The right to self-defence is inherent and therefore not granted by or dependent on the whims of anyone.

(iii)             Self-defence should be necessary.

A state’s resort to use of force in self-defence must be necessary to deal with the particular threat that is faced and should be used only as a last resort.^[20] The armed attack should be either imminent or actual. Imminence entails anticipation of attack, necessitating anticipatory self-defence, such that a state may lawfully invoke self-defence in circumstances where there is evidence of further imminent attacks even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.^[21] The test of necessity is so important in warfare that even the celebrated Italian diplomat and political strategist, Niccolo Machiavelli said that, “… war is just when there’s no alternative and arms are sacred when they are your only hope.”^[22]

(iv)             Self-defence should be immediate.

A state should arise to defend itself immediately, without undue delay. Its actions should not be a mere afterthought.

(v)               Self-defence should be proportionate

Self-defence is not tantamount to a declaration of war. As such therefore, it must be proportionate to the attack sought to be repelled.^[23] Even in situations where the armed attack is just imminent and therefore merely anticipated, the force used must be proportionate to the threat faced and limited to what is necessary to deal with it.^[24] Force should not be excessive.

(vi)             Self-defence applies to both state and non-state actors.

A state’s right to self-defence covers both state and non-state actors. Its application to states is long settled. But its application to non-state actors is a relatively new phenomenon. It is submitted that it is by now reasonably clear and accepted that states have a right of self-defence against attacks by non-state actors – as reflected, for example, in U.N. Security Council Resolutions 1368 and 1373 of 2001, adopted following the terrorist attacks by Al Qaeda against the World Trade Center and elsewhere in the United States on 11 September 2001.^[25] The Security Council resolutions recognized that large-scale terrorist action could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harboring them, if that is necessary to avert further such terrorist acts.^[26] Indeed, it was on that basis that United Kingdom forces joined the United States in military action against Al Qaeda and the Taliban in Afghanistan.^[27]

2.2.            Scope of Self-defence

(i)                 Does not cover remote threats.

Self-defence cannot be invoked to justify the use of force to mount pre-emptive strikes against threats that are remote.^[28]

(ii)               Continues until U.N. Security Council intervention.

By Article 51 of the U.N. Charter, the right to use force in self-defence continues until the Security Council has taken measures necessary to maintain international peace and security. Once the U.N. Security Council takes actions to address the problem, the state’s right of self-defence extinguishes.

(iii)             Does not cover civilian self-defence.

A state cannot invoke self-defence in response to vigilant efforts of civilians caught in armed conflict and thereby defending themselves, since civilian self-defence does not constitute direct participation in hostilities.^[29] The state’s right to self-defence is limited to attacks by armed combatants.

3.                  Conclusion

In the Westphalian world order,^[30] the right to self-defence is vital for protecting state sovereignty. States rely on self-defence to safeguard their territories from hostile activities by outsiders. Self-defence, however, is not a static concept but rather one that must be reasonable and appropriate to the threats and circumstances of the day.^[31] Consequently, I submit that much as the U.N. Charter and customary international law concern themselves with armed attacks against states, nevertheless their justifications for self-defence can (and should) be extended to new and emerging threats like cyber-attacks that are not necessarily armed, but are equally destabilizing and destructive, anyway.

 

 References

1.                  In his semi-opera, King Arthur (1691), jointly composed with Henry Purcell; quoted at http://www.notable-quotes.com/w/war_quotes.html. Accessed on 14 July 2022, at 16:44 hrs.

2.                  From openly blood thirsty and dictatorial tyrants, to covertly macabre political and administrative systems, and deadly petty rivalry between contending rulers, the world has seen it all. World War II rendered human life utterly worthless and marked the peak of human madness, as people took to ruthlessly butchering themselves on European battle fields.

3.                  International Committee of the Red Cross, ‘Self-defence’ (2022). Accessed online at https://casebook.icrc.org/glossary/self-defence, on 12 July 2022, at 19:20 hrs.

4.                  Daniel Bethlehem, “Notes and Comments: Principles Relevant to the Scope of a State’s Right of Self-Defense against an Imminent or Actual Armed Attack by Nonstate Actors” 106 AJIL (2012) 000, at 5.

5.                  International Committee of the Red Cross, supra note 3.

6.                  Daniel Bethlehem, supra note 4, at 3.

7.                  See Matthew Waxman, “The 'Caroline' Affair in the Evolving International Law of Self-Defense” (2018). Accessed online at https://www.lawfareblog.com/caroline-affair, on 15 July 2022, at 00:30 hrs.

8.                  Ibid.

9.                  Ibid.

10.              V.A.V. Andreias, “Anticipatory self-defense in international law: legal or just a construct for using force?” at 4-5.

11.              Legal Information Institute, “customary international law” (2022). Accessed online at https://www.law.cornell.edu/wex/customary_international_law, on 13 July 2022, at 03:29 hrs.

12.              Ibid.

13.              According to the Merriam-Webster Dictionary, non-refoulement is “a principle of international law providing a refugee or asylum seeker with the right to freedom from expulsion from a territory in which he or she seeks refuge or from forcible return to a country or territory where he or she faces threats to life or freedom because of race, religion, nationality, membership in a particular social group, or political opinion.”

14.              Legal Information Institute, supra note 5.

15.              Ibid.

16.              Legal Information Institute, “opinio juris (international law)” (2022). Accessed online at https://www.law.cornell.edu/wex/opinio_juris_%28international_law%29, on 14 July 2022, at 17:15 hrs.

17.              Art. 1(1) of the U.N. Charter.

18.              Art. 1(2) of the U.N. Charter.

19.              The other exception to this general rule is the responsibility to protect under which states considered it their right to intervene in the domestic affairs of other states in the following circumstances:

(i)                 the concept of humanitarian intervention, on humanitarian grounds for “purpose[s] of protecting or assisting people at risk.” See International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001), at 9;

(ii)               to prevent and punish genocide under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

20.              Daniel Bethlehem, supra note 5, at 3.

21.              Ibid.

22.              Niccolo Machiavelli (Tim Parks (trans)), The Prince (2009), at 103.

23.              International Committee of the Red Cross, supra note 3.

24.              Daniel Bethlehem, supra note 5, at 3.

25.              Ibid., at 5.

26.              Ibid., at 3.

27.              Ibid.

28.              Ibid.

29.              International Committee of the Red Cross, supra note 3.

30.              This refers to the political and diplomatic settlement resulting in a peace treaty between the Holy Roman Emperor and the King of France and their respective Allies of 24 October 1648, codenamed the Treaty of Westphalia, which entrenched the principle of state sovereignty, under inviolable national borders.

31.              Daniel Bethlehem, supra note 5, at 3.