By Ebun-Olu Adegboruwa SAN

(Being a paper presented at Legal Practice (LPD) Webinar Part 1, held on 11 November 2021. THEME: Role of Lawyers in Resolving Nigeria’s Security and Stability Challenges)

Introduction

It has been said that lawyers, as social engineers for change and development, are indispensable in any human society. In a developing society as our country Nigeria, lawyers occupy a strategic position due to their legal services which are always deployed in shaping the political, social and economic arrangements in the country.

It is however noteworthy that the role of lawyers at any given time in the society is usually influenced by the burning issues of the moment that agitate the mind of citizens. It is thus not surprising that at a time where the Nigerian polity is ravaged with unending insecurity, endemic poverty and heightened tyrannical disregard for the rule of law, several interest groups and institutions are looking up to Legal Practitioners for guidance in navigating the present state in our nation.

The presence democratic practice in Nigeria, like in most African countries, is not a fair-weather sailing. This is because the Nigerian democratic experiment is marred with increasingly unstable environment surfeited with corruption, inefficient legal system, raging insecurity and disregard for rule of law. With the above background one can thus appreciate the daunting task ahead of Nigerian lawyers towards the enthronement of Democracy and Good Governance in Nigeria.

Definition of Key Terms

Democracy

It goes without saying that Democracy has come to be a global phenomenon widely accepted by many countries of the world as their system of government through which respective nations operate. As a commonly misinterpreted yet familiar term, democracy which has its origin in ancient Greek states, is usually described as a form of government in which the supreme power is vested in the people. The Athenian leader Cleisthenes termed the aforesaid political system as demokratia or ‘rule by the people’. James Roland Pennock, on the other hand, in his book ‘Democratic Theory’, defines democracy as:

“Government by the people, where liberty, equality and fraternity are secured to the greatest possible degree and in which human capacities are developed to the utmost, by means including free and full discussion of common problems and interests.”

Albert Weale, a professor of Government at the University of Essex, UK, considered democracy as a system where:

“important public decisions on questions of law and policy depend, directly or indirectly, upon public opinion formally expressed by citizens of the community, the vast bulk of whom have equal political rights.”

In all, the common trend that runs through the conceptualization of democracy is that democracy is a form of government that places the people at the center and in which decisions by elected representative, must reflect the wishes of the majority of the citizens.

Good Governance

While democracy remains an embraced system through which the society reflects their most accepted decisions, values and interest, ‘Governance’ denotes the process of the decision-making of, and the process by which decisions are implemented by, the elected representative. Good governance could therefore imply governance (carried out by the government) that is inclined towards the purpose of the provision, protection and promotion of the common good in the society.

As aptly put by a writer, good governance is defined as the responsibility and responsiveness of public officers (both elected and appointed) to the governed or electorate. Here, “responsibility connotes good judgment, a sense of fairness, honourable conduct, efficiency and effectiveness, while responsiveness denotes sensitivity to the wishes, desires and aspirations of the governed as well as acting in accordance with their duties.” Good governance therefore entails the efficient and effective reciprocity between the rulers and the ruled. Above all, good governance remains a litmus test in measuring the practice of true democratic system of government in a given society.

Lawyer

To espouse more on some further terminologies in this discourse, the term ‘lawyer’, as defined in Black’s law dictionary, means ‘a person learned in the law; as an attorney, counsel, or solicitor, a person licensed to practice law.’ To a vast majority of the Nigerian masses, a lawyer (that is a legal practitioner) is only a legally trained person who appears in court. Hence, to many, once a person is not in active practice, he is not regarded as a ‘true’ lawyer.

However, pursuant to the Legal Practitioners Act Cap 20, LFN 2004, a legal practitioner is referred to as a person entitled in accordance with the provisions of the Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings. In essence, it would not matter whether such a person actually chooses to practice as a barrister and/ or as a solicitor; once an individual becomes entitled by law to practice as a barrister and solicitor in Nigeria, such person is regarded as a lawyer. It is to this end that the body called the Nigerian Bar Association has all its members recognized as legal practitioners irrespective of whether the latter are engaged in active practice of law (whether as a barrister and/ or as a solicitors).

The Role of Lawyers towards enthronement of Democracy and Good Governance in Nigeria

The Nigerian Bar Association (the NBA), otherwise known as ‘The Bar’ is thus an analogous term for ‘the Nigerian Lawyers’. To therefore understand the duties and role of lawyers in respect of the discourse under reference, keen attention must be paid to the Constitution of the Nigerian bar Association and the Rules of Professional Conduct (RPC) governing legal practitioners in Nigeria.

As clearly highlighted under the Constitution of the NBA, the NBA has several aims and objectives guiding its existence. A key and foremost object of the Bar is the:

“Promotion and protection of the principles of the rule of law and respect for the enforcement of fundamental rights, human rights and people’s rights.”

Little wonder the first Rule of the RPC prescribes that “a Lawyer shall uphold and observe the Rule of Law, promote and foster the cause of justice…” The Bar is thus seen as the sentinel of the democracy whereby it serves as the Watchdog, on behalf of the society, to monitor and ensure the observance of the rule of law and respect and enforcement of fundamental and people’s rights by the Government. It is this apparent expectation from the legal profession that as earned the Bar Association several labels like “defender of rights and protection of liberties”, “bulwark of our nascent democracy”, “voice of the voiceless”, and “conscience of the nation”, amongst others.

Advancement of the Rule of Law

From the foregoing, it is clear the essential role that must be played by lawyers is to ensure that the law is upheld at all times. Late Chief Gani Fawehinmi validated this point when he said that all legal practitioners can best serve the cause of the country if they uncompromisingly protect, defend, advance and observe the rule of law. The rule of law is the bastion of democratic stability in any nation. Lawyers inescapably ‘the Bar’ must ensure that the law not only rules but that it is seen to rule. Everybody, from the high horses of the ‘governors’ to the low terrains of the ‘governed’, must be brought under the law to which nobody will be above it. Mr. Femi Falana (SAN) further underscored this primal role when he said:

“In an oppressed society like Nigeria it is the duty of lawyers to defend the defenceless, protect the rights of the people, guide against all forms of oppression and inhuman treatment. The lawyer as an individual or body of lawyers in any nation must live up to his or its responsibilities as a dogged fighter of the oppressed, as a beacon of light that will penetrate the darkness of the environment, as a courageous voice of the hopeless and heartless and, perhaps, the sane and lonely voice that will bring powers and principalities to the path of rectitude whenever they go wrong.”

Sadly, it is the non-observance of the rule of law in Nigeria that the rogue police officers and military men upon causing the extra-judicial killings of Nigerians that the Law enforcement agencies are not held accountable for their dastardly acts. It is the non-observance of the rule of law that residential premises of a Supreme Court Justices are invaded in a commando faction to which no institution is brought to book on such illegality. As staunchly put by Chief Wole Olanipekun (SAN), if Nigeria is to stand tall in the comity of nations or if she is to express a respected opinion within the civilised countries of the world, our democracy must be anchored on the rule of law.

Legal Activism of the Bar

The Bar in playing its watchdog role in observing the adherence to rule of law must adopt legal activism in promoting and protecting public interest and the rights of the less privileged in the society. There is therefore need for a collective active Bar in attaining the duties of the watchdog/ monitoring roles the lawyers must play in Nigeria’s emerging democratic experience. Yes we have several individual activists who, in the face of executive lawlessness and abuse of power, have remained bold in challenging the excesses of government. Nonetheless the pocket victories and stance against lawlessness and corruption cannot withstand the high-tides of state controlled-machineries which influence the order of the day.

The Bar must therefore take a stand collectively as the Watchdog of the nation. The Bar must move from the individual/ delegated approach to central and systematic practice of lending its stance on political, economic and social issues of public interest. It is the absence of collective active Bar that the Socio-economic Rights and Accountability Project (SERAP) amongst other interest group have begun to play some roles of the NBA in testing the validity of several decisions of the Government of the day.

The Late Christopher Alexander Sapara Williams, the first indigenous lawyer in Nigeria, laid down what is considered as the foremost duties of a lawyer. He said:

“The legal practitioner lives for the direction of his people and the advancement of the cause of his country”

Can the Bar be seen as living and existing for the direction of the people and the advancement of the cause of the nation? As Late Chief Gani Fawehinmi succinctly said, it takes an activist Judge to appreciate an activist lawyer but when we have an activist body of lawyers, this will strengthen the activist Judges on the bench.

We need a strong Bar that must speak truth to power and take a position on every issue of governance. The precise role of an active collective Bar was displayed under the iconic leadership of Alao Aka-Bashorun whereby the NBA resounded its opposition to unpopular military enactments in the 1980s. There, the NBA fought strongly against the Recovery of Public Property (Special Military Tribunals) Decree No. 3 of 1984. The NBA’s displeasure against this decree was hinged on the fact (a) the Tribunal’s composition should be headed by a high judicial officer and not military officer and (b) there ought to be a right of appeal to a higher court. The NBA ordered its members to boycott these military tribunals unless changes were made and this was a success as most lawyers complied. To the credit of the NBA, the aforesaid decree was later amended to reflect the NBA’s position.

Another example of the NBA’s collective activism against the military was reflected in the NBA’s position against the Public Officers (Protection Against False Accusation) Decree No. 4 of 1984. The decree was meant to protect public officers against ‘false’ accusation. As such, a journalist could be jailed for publishing the truth if it embarrassed a government official. Bringing the foregoing back home, the NBA as an active collective Bar should take a position on the recent indefinite Ban of Twitter from the Nigerian space and other attempts to pass anti-media laws in the polity.

Finally, lawyers must be concerned with taking up public interest and pro bono matters. As aptly said by Mrs. Funke Adekoya SAN, the most skilled at the Bar must make their services available in sensitive cases that are fundamental to the interpretation of basic freedoms and public rght.”

It was the Honourable Justice Augustine Nnamani, JSC (as he then was) who said that “a courageous, honest, industrious, vigilant, independent, knowledgeable Bar is a necessary instrument for the protection of the rights of the society.”

ALL LAWYERS ARE ACTIVISTS

This phrase is informed by the life and times of late Alexander Sapara Williams and Pa Tunji Gomez, as they both fought for the advancement of the cause of humanity.

But perhaps both Sapara Williams and Pa Gomez share more in common with another icon. On January 30, 1948, on the very day he was assassinated, Mahatma Ghandi spoke to his grandson about the Seven Blunders of the World, which he stated to be:

  1. Wealth Without Work
  2. Pleasure Without Conscience
  3. Knowledge Without Character
  4. Business Without Ethics
  5. Science Without Humanity
  6. Religion Without Sacrifice
  7. Politics Without Principle

To all the above I will of my own add: Law Without Justice. And this is why we have all gathered here today to talk about the role of lawyers in advancing democracy as that principle cannot exist or be practiced without justice.

As an advocate, Sapara-Williams clearly distinguished himself in many areas of law and he was greatly concerned for the society at large. On the 30th of January, 1888, he joined as a member of the Nigerian Bar Association (NBA) and on the 30th of August 1888, he enrolled at the Supreme Court, Lagos as the first Nigerian barrister. On the 30th of January 1888, he joined as a member of the Nigerian Bar Association (NBA) and was its Chairman from 1900 to 1915. He was actively involved in the struggle for independence, along with Sir Herbert Macaulay and other nationalists.

THE CONNECTION BETWEEN SAPARA WILLIAMS AND PA GOMEZ

Sapara Williams died on the 15th of March, (today) 1915 and was buried at the Ajele Stadium (which was then used as a burial ground, other people buried there include Bishop Ajayi Crowther). Then something strange happened long after his burial. There was a case against the military governor of the State over Ajele Stadium and the government decided to exhume the bodies of those buried there to make way for other constructions and no one was willing to challenge the khaki boys until Pa Gomez took up the challenge with the late lawyer’s daughter, Madam Sapara, who was around 70 years at the time and feared for Gomez’s life. They were successful in getting an injunction restraining the Lagos State government from exhuming the bodies.

Another statesman and erudite lawyer, Alhaji Femi Okunnu, SAN, had travelled that route quite very often. At the height of military adventurism in Nigeria, the Babangida regime promulgated The Land (Title Vesting) Decree of 1992, by which all land within 100 metres of any national waterway became property of the federal government. Alhaji Okunnu challenged this law at the Federal High Court and secured a judgment which nullified the decree.

As we can all very well remember, the Abacha junta had concluded plans to sell the land hosting the Nigerian Law School, in Victoria Island, Lagos. Mrs. Hariat Balogun and Mr. Femi Falana, SAN, took an action in court and secured an injunction to stop the sale. This is our motivation today, to keep up the good work of Pa Gomez and many other activists of the noble profession.

It is my firm belief that all lawyers are by nature and profession, activists. The NBA motto and Constitution are very clear on this issue by stating clearly that all lawyers must promote:

the Rule of Law;

the integrity and independence of the Bar and the Judiciary;

the right of access to court at reasonably affordable cost; and

the promotion and protection of the principle of the rule of law, respect for the enforcement of fundamental rights, human rights and people’s rights. So, I urge the NBA NEC to pass a resolution making it mandatory for all NBA Branches to include the topic of State of the Nation for discussion in all NBA Branch meetings.

INVASION AND BARRICADE OF COURTS BY DSS AN ABERRATION

The Bar should speak up, file cases in court and put an end to the current embarrassment whereby members of the executive arm of government led by DSS operatives storm the Court to arrest citizens inside the Court premises (Omoyele Sowore) or to prevent lawyers from gaining access to the Court (Nnamdi Kanu).

The Bench too should embrace judicial activism, as was done by the Honourable Justice Bairaman in the landmark case of Madukolu v Nkemdilim, where he laid down the golden principles guiding jurisdiction, without citing a single authority and precedence. So too our noble Lords and judicial officers must be pro-active to interpret our laws in favour of the rights of the people, as was done by Lord Denning, Honourable Justices Kayode Eso, Chukwudifu Oputa, Samson Uwaifo, etc.

Conclusion

There is no better profession in this country that is more opportune to solving Nigeria’s recurring crisis and democratic challenges than the Nigeria Bar. However, unless the Bar seizes the calling once more to restore the glory days of the Bar as the sentinel of democracy, the legal profession risk public opprobrium and irrelevance. The Bar cannot continue to therefore be hounded as a toothless bull dog that merely barks in the face of an affront on the rule of law and true democracy.