By Ebi Robert

The learned writer, Seun Lari Williams had written an article on “The Right To Freedom Of Association And The NBA” (https://www.punchng.com/the-right-to-freedom-of-association-and-the-nba/%3famp=1) which he canvassed and adumbrated fine points of Law with respect to the topic. The learned writer started by affirming the supremacy of the 1999 Constitution of the Federal Republic of Nigeria as amended over every other Law that are contrary to same. In discussing the importance of the fundamental human rights enshrined in the Constitution, he singled out the right to freedom of association pursuant to S. 40 of the Constitution and argued why he in his opinion thinks the concept of ‘mandatory association’ for legal practitioners is a breach of the right to freedom of Association.

In his argument, he said that the said right can be derogated from only under the exceptions of S. 45 of the Constitution and that the Constitution never intended to regulate professional occupations through mandatory association, else, it would have been expressly stated under Item 49 of the Exclusive Legislative List. In all, his argument is hinged on the fact that exceptions to the right to freedom of association must be traceable to the constitution, and as such, since the NBA is neither a body made pursuant to Section 45 of the Constitution, nor a body established under the Legal practitioners Act (LPA), Section 1 of the LPA is in breach of Section 40 of the Constitution and must be considered null and void. In other words, since the so called ‘mandatory association’ has no trace to the constitution, it is void for contradicting S. 40 of the Constitution.

While I agree with my learned friend on some fine points of Law, such as: the supremacy of the constitution, the right to freedom of Association, the body, NBA, is not made pursuant to Section 45 of the Constitution or a body established under the LPA, etc., I beg to disagree with the argument which is to the effect that the mandatory concept violates Section 40 of the Constitution. And I shall answer this with various standpoints that would be jurisprudential. Hence, I shall be applying little Law and Logic.

  • NOT ALL EXCEPTIONS ARE TRACEABLE TO A SECTION STATINGTHE GENERAL RULE

It is an undisputable fact that the exceptions to a principle in the Constitution are traceable to the Constitution itself; it is also pertinent to state that not all exceptions are traceable to the Section stating the general rule. S. 40 states as follows:

“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.

Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to Political parties to which that Commission does not accord recognition.”

While the above mentioned provision does not provide its exception, directly, in itself, like that of S. 35 and others in the constitution, the exceptions of Section 40 can however be traceable to the Constitution by virtue of S. 45 of the Constitution. The traceability is express, because of the outright mention of S. 40 amongst others in S. 45. However, what will be the legality of an exception to a general rule in the constitution when the exception is not expressly traceable to the Section stating the general rule? For instance, S. 142 (1) of the Constitution is to the effect that a candidate to the office of a President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for a running mate.

This provision shows that a presidential candidate only gets validly elected when he nominates another person as a running mate, and that running mate must come from the same political party: and how can a presidential candidate nominate from a political party if he is not a member of a political party? This means that apart from other Laws that may have spoken about political membership of aspirants and candidates, the Constitution itself has made it clear, though indirectly, that the aspirant MUST be a member of an association by way of a political party. Yet, S. 40 did not make reference to S. 142 (1) as an exception that can derogate the applicability of S. 40.

Thus, is S. 142 (1) of the constitution contrary to S. 40 of the same constitution, being that S. 45 that creates the exceptions to S.40 did not mention S. 142 (1), neither did S. 142 (1) make reference to S. 40? I leave that for the court to interpret. But at least, S. 142 is found is traceable to the Constitution even though the provision did not make reference to S. 40 or S. 45.

  1. MEMBERSHIP OF NBA IS AN EXERCISE OF THE RIGHT TO FREEDOM OF ASSOCIATION

Yes, the mandatory concept has been introduced by the Law and has been argued by my learned friend to have violated the right to freedom of association. But I think the interpretation is the way it is, because ‘mandatory’ has been construed to be ‘forceful membership’, even though learned counsel did not make use of the term. But what if the argument is thrown the other way round?

No one is forced to join the NBA as no one is forced to be a Lawyer. The mandatory nature of the association at least for legal practitioners, is open and well spelt out for those who intend becoming legal practitioners even before they choose the profession. Thus, anyone who joins the legal profession by being educated by the Council of Legal Education and called to the Nigerian Bar by the Nigerian Body of Benchers, having being aware that such move would result to him becoming a member of the association which is mandatory in this context,has simply given his consent. In other words, going to Law school and passing the bar exams and been called to the Nigerian Bar is an express exercise of the right to the freedom of Association as no one is not forced to join the Association. Only that, failure to join means that his or her legal practice would be barred and so it is a matter of choice to join or not to and for the purpose of emphasis, acceptance to join the profession is an exercise of the right to join the association, just as the requirement to join the NBA is qualification as a legal practitioner.

Put another way, can someone who has been refused membership to the NBA for not being a legal practitioner turn around to say that his right to freedom of association has been breached?  If no, then the same way he cannot claim that his right to freedom of association is violated for being denied membership for lack of qualification, so also he or she cannot claim that his or her right to freedom of association has been breached by joining the NBA mandatorily upon being enrolled as a legal practitioner; just as the presidential aspirant or candidate of an election cannot claim that his right to freedom of association has been breached because of his compulsory membership of a political party. By agreeing to contest, he has simply agreed to be a member of a political party, which is an exercise of the right itself. It should be worthy of note, that even the exceptions in S. 45 (1) deals with ‘prohibitions’.  Note that Legal Education does not end in the Nigerian Law School, it extents to the programme of Mandatory Continuing Professional Development (CDC) provided in Rule 11 of the RPC.

  1. ARE ALL EXCEPTIONS TO A GENERAL PROVISION IN THE CONSTITUTION FOUND EXPRESSLY IN THE CONSTITUTION?

The answer is no. By this, it means that the constitution may not expressly state an exception to the core, but create a direction. For instance, S. 34 of the constitution which deals with the right to dignity of human person creates exceptions to the part which deals with forced and compulsory labour. While S. 34 (2) (a) – (d) make reference to exceptions expressly provided in the constitution, S. 34 (2) (e) (ii) (iii) make reference to anAct of National Assembly that may be enacted to the effect of the exception created for ‘any labour or service that forms part of such compulsory national service in the armed forces of the federation and education and training of citizens of Nigeria.’ Here, it can be seen that the exceptions stated above are not expressly provided in the constitution but however mentioned. This way, the spirit of the exception can be found in another Law expressly although derived from the constitution.

But then, can there be exceptions to the general provisions not expressly stated in the constitution itself? I won’t outrightly say ‘yes’. Perhaps, the answer may lie in the interpretation that can be given by the court to certain provisions that seem not to have exceptions. What are the spirits of their letters?

Let us go on a little legal voyage. S. 34 of the Constitution speaks of the right to dignity of the Human person. The said right is divided into three phases. Viz: (a) no person shall be subjected to torture or to inhuman degrading treatment; (b) no person shall be held in slavery or servitude and (c) no person shall be required to perform forced or compulsory labour.

While Part C of the said right is provided with exceptions in S. 34 (2) (a) – (e), part A and B are without any exception. For Part b, it is quite understandable as there is none — what then would be the legal argument of Part A with respect to ‘subjection to torture’?

Can a Boxer who gets himself punched to stupor by another boxer turn around to say that he or she was subjected to torture and as such his or her right to dignity has been breached? Under the Tort Law remedy of Battery, the said hypothetical act would amount to the defence of ‘Consent’. But can the aggrieved boxer who consented turn around and argue in court that his right is breached because the constitution did not create an exception known as ‘consent’ in Section 34 or any other section? That is left for the court to decide as to what really is the scope of the interpretation of the right.

  1. 41 deals with the right to freedom of movement. Can a student who is in a University who has been admitted into the school whose regulation prohibits students from leaving the Hostel by 12:00 am in the night turn around to say that his right to freedom of movement has been breached despite consenting via acceptance of the admission from the school? Can he succeed because S. 41 did not create such a situation as an exception neither does any other section in the constitution make a trace to it? That will be left for the court to say.

However, the Court of Appeal had confirmed the automatic membership of lawyers in the NBA, in the case of N.BA. v. Kehinde (2017) 11 NWLR (PT 1576) 225 At 250 -251, paras H-A, where His Lordship NIMPAR, JCA, held as follows:

“The Nigerian Bar Association (NBA) was established for the purpose of regulating the affairs and conduct of all legal practitioners in Nigeria and upon being called to the Nigerian Bar, there is automatic membership to the NBA on a lawyer. See Chinwo v. Owhonada (2008)3 NWLR (Pt.1074)341. Hence, as long as one has elected to join and remain within the noble profession, he is a member and ought to comply with the directive of the Association.”

In all, it is my submission that the mandatory membership of the NBA of the legal practitioners is not a breach of the right to freedom of Association, but rather an exercise of that right by whosoever accepted to be called to the Nigerian Bar which invokes all rules guiding the legal profession on same. This impliedly discards the method of the regulation of the legal profession via the General Council of the Bar and the NBA as well as the comparison of same with the regulation of the medical profession, being not necessary at least for the cause of this rejoinder.

Ebi Robert is a Yenagoa based Human Rights Lawyer. Reach him at: [email protected].