Proposed Amendments: Is NBA Scheming Its Collapse?

By Abdulrasheed Ibrahim

The Nigerian Bar Association (NBA) has released the new proposed amendments to its 2015 Constitution. When the Committee was set up again to amend the NBA Constitution and called for memoranda from lawyers, I deliberately chose not to send any, unlike in the previous amendment of 2020.

Why must an Association derive pleasure from the ritual of amending its Constitution virtually under every regime? Is such constant amendment not questionable? Upon going through the latest proposed amendments, my reaction was that: “Reading through some of these amendments, it is like asking the children of Israel to go back to Egypt after crossing the Red Sea. Why must the NBA make amending its Constitution an incessant ritual? When you say the Presidency should now be by succession after 2024 rather than by election, does this not question the motto of the NBA that says ‘Promoting the Rule of Law’? To me, some of these amendments are worse than the military coups in the African continent, now being condemned by many people.”

While civilised institutions and associations are embracing democracy, why must a professional association such as the NBA (an association of learned individuals) be contemplating a different route? There are certain things I cannot keep silent on, and I will continue to write, talk, and make suggestions. It is the choice of those concerned to either heed or ignore, as Chinua Achebe had said: “A fly that has no one to advise it follows the corpse to the grave.”

Now, let us examine some of these new proposed amendments to see whether, if the NBA eventually approves them in its forthcoming Annual General Conference (AGC), it can lay claim to being truly democratic. Under Part II Section 7, which deals with the General Council of the Bar, the composition of the Representatives of the Association in the council is 20 members, 9 of whom must be Senior members of the Association of not less than 25 years post-call, and another 9 members of the Association of not less than 10 years post-call, all spread across the 3 geographical zones. The incumbent President and his predecessor in that office are to fill the remaining 2 slots to make 20. The initial 18 members are to be elected in the National election and must have the following qualifications according to the new proposal:

“Any member of the Association seeking election into the General Council of the Bar shall be qualified for such election if he /she:

(a) Is a full member of the Association and has paid, as of the date of his/her nomination, his/her Bar Practicing Fees and Branch Dues for the three (3) consecutive years immediately preceding the year of the election, inclusive of the year of election.

(b) Is in private practice.

(c) Has at any time not less than two (2) years prior to his/her nomination been a member of the National Executive Council or served as a National Officer in the National Executive Committee or served as Chairman of a Branch or Chairman of a Section or Chairman of a Forum in the Association.”

Although one may not find any quarrel with sub-paragraphs (a) and (b) above, the problem lies in sub-paragraph (c), which has to some extent been taken care of by the previous amendment done in 2020 to the NBA Constitution. This particular sub-paragraph (c) as contained in the new proposed amendment is like bringing back the discriminatory provision that had already been done away with in 2020. Why must some people continue to insist that for a qualified lawyer to contest for an election in NBA, such a lawyer must have been a member of the National Executive Council or served as a National Officer in the National Executive Committee or served as Chairman of a Branch or Chairman of a Section or Chairman of a Forum in the Association, at any time not less than two (2) years prior to his/her nomination?

By the purport of this discriminatory provision, it means a lawyer who has qualified as such for over 10 years or 25 years, as well as having fulfilled sub-paragraphs (a) and (b), are not enough to qualify him/her to contest the election as a Representative of the Association to the General Council of the Bar unless he/she fulfills the requirement in sub-paragraph (c). I submit that this provision is not only very unjust and discriminatory to the majority of lawyers who are members of the NBA, but also very undemocratic. Sometimes I keep wondering what is so much special in the NBA’s position that the qualification required by a lawyer to hold an elective position in the NBA is more than what he requires to aspire to become the President of his/her country or the Governor of his/her home State, as provided for under the Constitution of the Federal Republic of Nigeria?

This discriminatory provision was part of the NBA Constitution for a very long time, but the NBA Committee that reviewed the Constitution in 2020, in their wisdom, saw reasons that the provision was truly discriminatory. The practice used to be that for any lawyer to contest for election as a National Officer (except for the position of Assistant), such a candidate must comply with the similarity of the sub-paragraph (c) stated above. However, the 2020 Review Committee then came up with a fantastic amendment that for a lawyer to be eligible to contest for an election as a National Officer, such a lawyer must not necessarily be or must have served as an (NEC) member, except if such a lawyer is contesting for the position of the President, 1st Vice President, and General Secretary. This discriminatory provision having earlier been expunged in 2020, why bring it back now as a condition precedent for a lawyer to be eligible to contest as a Representative of the Association at the Council of the General Bar in the new proposal? When the composition of the National Officers is being proposed to be drastically reduced to five (5), why then reintroduce the discriminatory provision to disenfranchise lawyers from contesting for a seat at the General Council of the Bar?

Again, in the new proposal under review, it is stated as follows: “The National Executive Committee shall consist of the National Officers of the Association who, except for the President, shall be elected as provided under the Constitution for a single term of two years.” According to the proposal, (a) The President, (b) The Vice President, (c) The General Secretary, (d) The Assistant General Secretary, and (e) The Publicity Secretary are now the proposed composition of the National Executive Committee of the NBA. It may not be a bad idea to try to reduce the composition of the National Officers, but proposing that from after the 2024 election, the Presidency of the NBA will be by succession rather than by election is a terrible and very bad idea. From where did the idea come from? According to the new proposal:

“With respect to the office of the President, the immediate past Vice President of the Association, FOR AVOIDANCE OF DOUBT, ascension to the office of the President of the Association shall be by succession, save for the circumstances listed in paragraph 4, part III of the second schedule to this Constitution. Provided that where the office of the Vice President is vacant at the time of succession, an election may be held for the office of the President. This provision shall become operative after the 2024 elections of the Association.”

When I read this provision, the question I asked was whether the NBA Presidency is now to be turned into a Chieftaincy Stool to be ascended to by succession, and how democratic is this continues to baffle me? It seems that what is now being suggested is that if this amendment scales through by the end of August this year (2023), whoever wins the 2024 election is going to be succeeded by his Vice President automatically without such a Vice President going through a fresh election to be the NBA President. This amendment being introduced is very strange. The proposal doing away with the 3 geographical Vice Presidency Structures is defeating the purpose for which it was brought in the first place, probably to have the 3 geographical zones to have a sense of belonging in the NBA political system. The final approval of these amendments will be left to the NBA Annual General Meeting to decide.

If one may ask at this stage, is the NBA scheming its own collapse? I dare say that if these amendments are approved by the AGM of the NBA, that may mark the beginning of the collapse of the NBA, which is the utmost desire of those trying to checkmate its monopoly. I have said it somewhere that when things are not done properly and transparently in the NBA, the Association is bound to lose its potency and dynamism. Many lawyers, particularly the senior ones, have long been clamouring for the springing up of other Bar Associations, as being done in other countries, as lawyers are at liberty to form and join any Bar Association of their choice, as the 1999 Constitution of the Federal Republic of Nigeria, as amended, guarantees the Freedom of Association to every Nigerian citizen, including lawyers. The monopoly of the NBA has continued to be questioned. A very senior member of the bar and a Life Bencher once told me that having multiple bar associations in Nigeria is just a question of time. This issue even featured prominently in the just-concluded first Annual Conference of the Nigerian Law Society. In advocating for Multiple Bar Associations in Nigeria, Chief Joe-Kyari Gadzama, SAN, observed in his address:

“In Nambia, lawyers have the opportunity to be part of multiple law-related associations such as Society of Advocates of Namibia and the Law Society of Namibia. Ukraine, too, boasts more than one umbrella body devoted to protecting the interest and welfare of legal practitioners. The Ukrainian National Bar Association and Ukrainian Bar Association, both non-governmental and non-profit organisations, unite lawyers across the country, striving to uphold the principles of the legal profession. Even in the United Kingdom, lawyers have the privilege of belonging to various law-related professional associations such as the Law Society of England and Wales and Bar Society of England and Wales. Indeed, on a continental level, Africa is home to two prominent legal associations: the African Bar Association (AFBA) and Pan African Law Union (PALU)…”

Chief Bolaji Ayorinde (SAN) in his own paper titled “Freedom of Association of Legal Professional – Navigating the Web of Statutory Professional Regulations”:

“Lawyers can have freedom of association to create and join associations such as Nigerian Bar Association and any other association that will foster legal reforms and development and aid justice delivery…The NBA is mentioned not just in Section 1 of the Legal Practitioner Act (LPA), but indeed, the NBA enjoys quite a great number of mentions in the LPA and Bar Council’s Rule of Professional Conduct (RPC). But can these mentions serve as the basis for overriding the lawyer’s fundamental right to freedom of association? I think not. The only exceptions to the fundamental right of freedom of association must be traceable to the Constitution. If the 1999 Constitution intended to regulate professional occupations through mandatory associations, it would have stated so under item 49 of the Exclusive Legislative List. Such intention would, however, have had to be reconciled with Section 45. A fundamental right such as the right to freedom of association simply cannot be derogated from in the manner attempted by Section 1 of the LPA. In consequence of the foregoing, since the NBA is neither a body made pursuant to Section 45 of the 1999 Constitution, nor is it even a body established under the LPA, Section 1 of the LPA is in breach of Section 40 of the Constitution and must be considered void.”

With this kind of powerful submission, the NBA needs to be very cautious in its way of doing things. I have advised in the past that it will not be in the interest of the NBA to retain unnecessarily discriminatory provisions in its Constitution. If interested members of the Association are unnecessarily being disallowed or disenfranchised from taking part in the NBA politics, some may ask what is the essence of discharging their obligations, whether financial or otherwise, to the NBA. The Association must continue to be democratic rather than being despotic in its electoral system. With these new proposed amendments awaiting the decision of the AGM of the NBA, I doubt if many lawyers will be comfortable continuing to stay or remain in the professional association that is planning to go the way of ascension or succession to the throne, choosing its President as if we live in a Royal Kingdom. Is there any rational alternative to being democratic?

Note: Anyone is at liberty to disagree with my above submissions, as I will surely appreciate a balanced, fair, and objective rebuttal. Contact: 08055476823, 08164683735, Email: [email protected].