By Abdulrasheed Ibrahim

When Mr. Olumide Akpata, the incumbent President of the Nigerian Bar Association (NBA) was swore in, he constituted the NBA Electoral Reform and Audit Committee under the Chairmanship of Chief Ayo Akintude (SAN). There was later a press release on behalf of the Committee calling on members of the Association to submit memoranda based on the terms of reference given to the Committee to work on. I think it is necessary to commend the incumbent NBA leadership for asking for the in-put of lawyers.

 

One of the hallmarks of good leadership is to carry along those that are being led. Although the assignment given to the Committee seems to be that of making recommendation to the NBA leadership on the terms of reference give to it, at least it is a good thing that lawyers are asked to submit memoranda this time around. Under the immediate past NBA leadership, a Committee was set up to amend the 2015 NBA Constitution but to the best of my knowledge I was not of aware whether that Committee issued out any press statement calling for memoranda from the members of the Association.

Upon reading the press statement calling for memoranda,released on behalf of the NBA Electoral Reform and Audit Committee and having on several occasions criticized some aspects of the NBA Constitution as being discriminatory and undemocratic, I have sent a memorandum to the Committee for its consideration as follows:

“With reference to the recent press release by the Nigerian Bar Association on the above subject matter, I wish to put forward before the Committee, my humble memorandum. Before doing this, I must first and foremost congratulate the Chairman as well as all members of this Committee for being considered worthy to be appointed as members of the Committee for this very important assignment in the life of our great Association. It will not be out of place here to say once again that I have been justified by the appointment of Chief Ayo Akintunde (SAN) as the Chairman of this Committee. After the conclusion of the 2019 NBA Lagos Branch Elections whose Electoral Committee was headed by Chief Akintunde, I wrote in an article as follows:

‘… The Electoral Committee headed by Chief Akintunde again did a wonderful job which it has been doing for many years now. Chief Akintunde is a person I can recommend for any electoral assignment whether nationally or internationally. We have a personality in our branch that the NBA at national level can look up to, to deliver a free and fair election in the nearest future. Chief Ayodele Akintunde (SAN) is a person that will not compromise as he is a principled man. I congratulate him and all members of his Committee for making history again.’

I repeated the above assertion in a recent article titled: IF I WERE THE NEW PRESIDENT OF THE NBA https://thenigerianlawyer.com/if-i-were-the-new-president-of-the -nba/ . With this new Committee in place, I have the hope and confidence that justice will be done to the assignment given to it.

The particular area in the terms of reference I want to draw the attention of the Committee to is that of paragraph (e) which states that: “To study the provisions of the NBA Constitution (as amended) on the elections of the National Officers of the NBA and propose amendments as may deemed necessary”. At the time of writing this memorandum, I tried to lay my hands on a hard copy of the 2015 NBA Constitution (as amended) but could not. I will here rely on the provisions of the NBA Constitution of 2015 which I have in my possession as there was no substantial amendment to the provisions (I want to suggest or recommend for amendment to) in the 2015 amended copy. These provisions in question have to do with the requirements and qualifications to contest for positions as National Officers of the NBA. Under Section 8 of the 2015 NBA Constitution (subject to any amendment), the positions of National Officers are listed as well as the qualifications to hold those positions, but under Section 8 ( 3) (c) ,the following are provided :

“(c) He /She has at any time prior to his /her nomination been a member of the National Executive Committee or Branch Executive Committee as indicated hereunder:

(i) For contestants for the offices of President, First Vice President, Second Vice President and Third Vice President – for not less than two (2) years at National Executive Committee;

(ii) For contestants for the offices of General Secretary ,Treasurer, Financial Secretary, Publicity Secretary , Legal Adviser and Welfare Secretary – for not less than two (2) years at the National Executive Committee;

(iii) For contestant for the offices of 1st Assistant Secretary ,2nd Assistant Secretary, Assistant Financial Secretary and Assistant Publicity Secretary on their Branch Executive Committee for not less than two (2) years.”

I want to submit with respect that if the members of this Committee look critically at the above provisions, you will all agree with me that this is one of the discriminatory and undemocratic aspects of the NBA Constitution presently being operated and therefore there is the need to have a second look at these provisions for necessary amendment. Why did I say these provisions are discriminatory and undemocratic?

It is high time a clear distinction is drawn between the words “National Executive Committee” and the “National Officers” as used along with “Branch Executive Committee” in Section 8 (3) (c) above. There is an argument among lawyers now that the “National Executive Committee” is different from “National Officers” contrary to the way it is used in the said paragraph. The NBA Constitution having provided that a contestant must have been a member of the “National Executive Committee or Branch Executive Committee” prior to his /her nomination, then introduced the discriminatory aspects in paragraph 3 (c), (i) and (ii) whose purport are to the effect that if a candidate had served in the Branch Executive Committee, he cannot hold a substantive position as a National Officer, except he had served as Chairman or Secretary of a Branch or Sections who are by virtue Section 7 of NBA Constitution are statutory members of the National Executive Committee. The only option is that such a candidate must have earlier been co-opted, NOT ELECTED to the National Executive Committee under the same Section 7 of the NBA Constitution to be eligible to contest for a substantive position as a National Officer.

For more clarity, a candidate that had served as a Branch Vice Chairman but was not co-opted to the National Executive Committee (NEC) is not eligible to contest for a substantive position of National Officer except he/she opt to contest for a position under Section 3 (c) (iii) as Assistant National Officer. By these provisions of the NBA Constitution, no aspiring lawyer will be eligible to contest for elections as a National Officer under Section 8 (3) (c) (i) and (ii) except he had served as Chairman or Secretary of a Branch or a Section or co-opted, NOT ELECTED to the National Executive Committee (NEC), regardless of the fact that such aspirant had served in any other capacities including Vice Chairman in a Branch Executive Committee .He can only contest for a position under Section (8) 3 (c) (iii), notwithstanding the facts that all contestants respectively in Section (8) 3 (c) (ii) and (iii) are required to have the same requirements for qualification (i. e. payment of the same financial obligations and post call years ) to be eligible to contest for those positions by virtue of Section (8) 3 (a) and (b) ; Section (8) 3 (d) (i) and (ii). Even the same requirements are required for their qualifications at Branch level. Please see again Section 15 (3), (a) and (b) of the 2015 NBA Constitution.

The simple analysis I am trying to make here is that, being a lawyer, very active and financial member of NBA is not enough to make such aspiring lawyer, even if he had served in the Branch Executive Committee to be eligible to contest for a substantive position as a National Officer. As it is presently, it is mandatory that he must have served as Chairman or Secretary of a Branch or a Section or in the alternative had been co-opted and NOT ELECTED to the National Executive Committee (NEC). For example again , a contestant who had once served as Vice Chairman of a Branch but not co-opted to the National Executive Committee (NEC) is not be eligible to contest for a substantive position of a National Officer except for the position of an Assistant National Officer. The same thing is applicable to those who have served in a substantive position at the Branch Executive Committee except the Chairman and the Secretary.

It is my advice to the Committee that as an Association of lawyers that claims to promote the Rule of Law, our electoral system must be made to be more democratic rather than being undemocratic and discriminatory as we presently have. Those provisions in the NBA Constitution need to be amended to make every lawyer to be rationally eligible to contest for positions in NBA if he /she so wishes and the members of the Association should be allowed to decide through voting if they want such lawyer in the position of NBA leadership or not. I am of the humble view that any artificial requirement that is not in tune with the spirit of rule of law should be discouraged and done away with in the NBA Constitution.

In as much as lawyers in Nigeria will not concede to any amendment to the Constitution of the Federal Republic of Nigeria seeking to make it mandatory that for a person to be eligible to contest for the position of the Nigerian Presidency, he/she must have served as a Governor of a State or a member of the National Assembly ; or that for a person to be eligible to contest for a position of a State Governor ,he/she must have served as a Chairman of a Local Government in his State or a member of the State House of Assembly. Since if this kind of discriminatory amendment is attempted it will be resisted even by non-lawyers, so am of the strong view that the discriminatory clause in the NBA Constitution making it mandatory for a contestant that he/she must have served as Chairman or Secretary of a Branch or a Section or must have been co-opted and NOT ELECTED to the NEC should be removed from the NBA Constitution as it is discriminatory and undemocratic. We also need to ask ourselves as lawyers and members of the Bar that, it is a well known fact that the appointment to the High Court bench though is not elective, but if an attempt is made today to say that henceforth appointment to the High Court bench will be strictly made from the Magistrate Court bench, will this be acceptable to the members of the Bar? Will this not be seen as discriminatory?

The retention of such clause in the NBA Constitution without amendment will continue to make that Constitution discriminatory and undemocratic as opposed to the rule of law being promoted by the NBA. It tends to discourage many members of the Association who are willing to take part in the NBA politics to stop discharging their financial responsibilities to the Association, as some may say that, if despite their financial contributions to the Association, they would not be eligible to participate or aspire for positions in NBA, what is the essence of paying or discharging their financial obligations to the Association? As an Association of learned men and women, I do not think, it is right for the NBA Constitution to be discriminatory and undemocratic as that would amount to questioning the capabilities of lawyers to direct the affairs of the Association despite their claim of being learned.

Those NBA Constitutional provisions are discriminatory and undemocratic in the sense that majority members of the Association are disenfranchised as we have a situation where majority of the financial members of the Association are only accorded the right to vote but cannot be voted for as National Officers if they so wish. Also a critical look at the composition of the National Executive Committee (NEC) as provided in Section 7 of the 2015 NBA Constitution clearly shows to a large extent that the composition is not completely elective by virtue of the word “co-option” adopted under that Section. It needs to be pointed out here that there was an heavy allegation by one of the Vice Presidents in the immediate past National Officers of the Association that the President single handedly picked over 100 co-opted NEC members without the in-put of the other National Officers. It is a fact that such co-option are usually done basically to compensate their loyalists who campaigned for them during elections to the office and not necessarily those that will champion the cause or the interest of the Association when the situation arises. It is also my suggestion that the Hon. Members of this Committee should have a second look at the composition of the National Executive Committee (NEC) as I am of the view that it is better to make the composition more elective than co-option as it is being presently done. The NBA NEC should be made to be more representative than being selective.

Another aspect of the NBA Constitution I want to draw the attention of the Committee to is the Paragraph 4 of the Third Schedule Part 1 referred to as GOOD STANDING. The sub paragraphs (1) and (2) having stated clearly what amount to a good standing, the requirement that only the Chairman can sign a certificate to that effect need to be reviewed and amended. The certification should not be made an exclusive preserve of the Branch Chairman if the mere showing of evidence to prove the requirements in sub paragraphs (1) and (2) of paragraph 4 are not enough. We need to avoid a situation where a Branch Chairman is made to be tyrannical or being made a “political godfather”. A classical example of this was what recently happened in the Ikeja Branch of the NBA where it was alleged by a candidate, that the Chairman of his branch denied him a letter of good standing because of a conflict between them. Apart from the Branch Chairman, some other members of the Branch Executive Committee either present or past or any other prominent members of the Branch should be competent to sign a letter of good standing for a candidate wishing to contest for an election in the NBA. The law school students aspiring to be called to the Bar are not required to go back to the Deans of their respective Faculties of Law, or the Director General or the Deputy Directors General of the Nigerian Law Schools to have their call to the bar forms signed as being fit and proper to be called to the bar. Any member of the Body of Benchers can do that.

The above are my suggestions for the amendment of the NBA Constitution which I hope the members of the Committee will look into and give a deep thought to in the cause of their deliberation for the betterment and progress of the NBA. Since one of the aims and objectives of the NBA is the promotion and protection of the principles of the rule of law and respect for the enforcement of the fundamental rights, human rights and people’s rights, our Constitution upon which we operate must be seen to be democratic and not discriminatory.

I wish the Committee a wonderful deliberation.”

Having sent my memorandum to the NBA Electoral Reform and Audit Committee,in accordance with the NBA press release guideline, I do hope the Committee will look into it and make appropriate report and recommendations to the incumbent NBA leadership at the end of day.

NOTE: Anyone is at liberty to disagree with my above submissions as I will surely appreciate a balanced, fair and objective rebuttal.
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