MUGWE: Is Brian Mwenda a victim or villain?

 Is Brian Mwenda a victim or villain?

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Of all the things I did, the easiest profession to fake was the lawyer. As a lawyer, I found most of it was a matter of research, which I was great at. That’s what I did to death. And then basically persuading people that you are right and they are wrong. I found this the easiest of all the professions to impersonate.”

These were the words said by Frank Abagnale Jr. one of the most famous fake lawyers who got caught. He studied alone, without attending Law School and passed the California Bar Exam on his third try. Frank was a bad guy for a long time and being a fake lawyer was not all that he did.

He also faked being a policeman, an airline pilot and a doctor.

So intriguing was his life that his life story was made into the movie, Catch Me If You Can, starring Leonardo di Caprio who played him. In the movie, he made a cameo appearance playing the role of a French police officer taking DiCaprio into custody. Frank appeared in the media a variety of times as guest on shows such as The Tonight ShowTo Tell the Truth and The Secret Cabaret.

These past couple of weeks, our less extreme rendition of Frank Abagnale emerged in the name of Brian Mwenda. It is alleged that he masqueraded as a High Court of Kenya advocate who impersonated another person with similar names in order to practice in Kenyan law. It is also alleged that he practiced being a lawyer without the requisite academic qualifications and occupational license. Conflicting information also alleges that he has won several cases in court. Our creative nature through memes likened him to Mike Ross in the Television series, Suits.

According to the Federation of Kenya Employers, the overall unemployment rate is 12.7 percent. Of this, the youth aged 15 to 34 years who form 35 per cent of the Kenyan population have the highest unemployment rate of 67 per cent against 18.5 per cent for men. Each year, over one million young people enter the labor market without any skills, while others informally acquire the skills but are not certified or licensed practice.

The famous catch phrase for this scenario in policy making forums is that it is a ticking time bomb. Several attempts have been made to diffuse this time bomb through discussions, plans and interventions that seek to reduce the number of unemployed. But this has been far from successful.

Begs the question. Is our diagnosis of the major causes and cure of unemployment distorted and elitist?

The case of Brian should motivate us to amplify and re-examine the hurdles of occupational licensure. This is the legal requirement that a credential be obtained in order to practice a profession. To obtain a license, workers must first pay the specified fees, undergo required training and education, and satisfy any other regulatory requirements. Some of the professions that require one to obtain a license in order to practice include engineering, law, insurance, accounting, procurement and logistics, pharmacy, nursing, tour operators, clearing and forwarding, film makers and land surveyors.

The conversation on the occupational licensure hurdles was mooted by the Central Organisation of Trade Unions secretary general Francis Atwoli when he revisited the conversation on the principle of Recognition of Prior Learning in defence of Brian and called for an examination to test his skills and competencies in law.

RPL is the process of identifying, assessing and certifying knowledge, skills, and attitudes regardless of how, when or where learning occurred. It enables persons to acquire formal qualifications that match their knowledge and skills, thereby contributing to improving their employability and social economic inclusion.

There is no doubt that occupational licensure largely protects the consumer from fraudulent, unethical, or incompetent practitioners of various professions. It also helps to ensure high-quality services, safeguards against serious harm, and offers workers clear practicing guidelines.

There is definitely something reassuring about seeing a medical, legal, or engineering license on the practitioner’s wall.

However, the elephant in the room that we have chosen to ignore is the downside of occupational licensure. It is a fact that licensing requirements raise the price of goods and services due to scarcity of the practitioners, restricts employment opportunities by reducing the supply of new entrants into a certain profession, incurring hefty upfront costs, resulting unlicensed workers earning lower wages compared to their licensed counterparts, and making it very difficult for workers to transfer their skills across countries. This burden falls disproportionately on low-income earners and contributes heavily to the ticking time bomb of unemployed youth.

Many can attest that occupational licensing has not prevented fraud, incompetence, poor service or even price gouging. Instead, it has become a tool in the hands of special producer groups to obtain a monopoly position. Rather than protecting the consumer, it protects the practitioners against new competition.

I submit that reforming occupational licensure could catalyse important economic reforms that transcend lazy thinking towards reducing unemployment.

It is therefore very commendable that an RPL policy framework has been prioritised by the Ministry of Education to widen the space for more people to participate in economic development. It is even more encouraging that the RPL offers one certification rather than licensing because certification applies penalties to illegitimately calling yourself a certified practitioner if you haven’t met the criteria for certification. However, it doesn’t forbid you from practicing a trade or bidding for job opportunities.

If Brian, as alleged, committed a criminal offence such as identity theft, then he ought to face the full force of the law. However, if his crime was that he practiced law without the requisite degree or license, then like Frank Abagnale Jr., he should be given an opportunity to sit for the requisite exams and if he passes be allowed to practice the profession.

Finally, my unsolicited advice is to the ticking time bomb policymakers: Why fight a war while RPL can walk you through the front door? Licensing tests the ability to take tests, not the ability to practice the trade. Focus on certification and you will be on the path to reducing unemployment, thus diffusing the ticking time bomb in this country.

Regulation has nothing to do with setting standards; it meant putting rules in place that worked in favor of a few.