The attempt of the Nigerian Bar Association (NBA) to eradicate the democratic process of electing the Bar president by introducing a succession plan that makes the Vice President take over leadership of the association, in its proposed constitution amendment that is expected to become operative after the 2024 Bar elections, has created a situation that may lead to conflict within the association. YEJIDE GBENGA-OGUNDARE reports that lawyers from various Bars have continued to kick against the move, describing it as undemocratic, lacks inclusion and not in line with global practice.
Though it is not a new idea, the recent announcement of proposed amendments to the Nigerian Bar Association (NBA) constitution 2015 (as amended in 2021), is currently generating issues within the legal circle with legal practitioners unable to reach a consensus. Lawyers are divided in their views on whether the amendment is necessary, or not as details of the proposed amendments were made public.
For the lawyers, the move to abolish elections for the post of presidency of the bar, thus introducing a succession plan which makes it automatic for the vice president to take over leadership without any form of election seems extreme and a serious step backwards for the NBA, which would do nothing to address the challenges facing the association.
They argued that “contrary to the provisions of Section 833 above, the NBA, by its Notice, now seeks to repeal the Extant Constitution pursuant to sections 28 and 29 of the proposed Nigerian Bar Association Constitution 2021, while no such resolution to repeal was ever passed. Find attached herewith as Annexure 3, the Resolutions passed at the 2021 Annual General Meeting (“AGM”) of the NBA, held on the 28th day of October, 2021 at the Yakubu Gowon Stadium, Elekahia, Port Harcourt, Rivers State, which clearly shows that no resolution was made to repeal the Extant Constitution.”
A Lagos-based lawyer, Abdulrasheed Ibrahim, also argued that while civilised institutions and associations are embracing democracy, why must a professional association such as the NBA, which is an association of learned individuals, be contemplating a different route, adding that “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 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.”
Proposed amendments
Under the leadership of Chief Asamah Kadiri (SAN), the NBA Constitution Review Committee completed its assignment and submitted the Proposed Amendments to the General Secretary, in strict adherence to the provisions of the NBA Constitution. The amendments cover some sections:
Composition of the representatives of the association in the General Council of the Bar: It says the composition of 20 members representing the association in the General Council of the Bar shall be as follows: Nine Senior Members of the association each of whom shall not be less than 25 years post-call and who shall be elected at a national election of the association for a term of two years, equally from the three zones of the Association as set out in the Second Schedule to this Constitution and shall only be eligible for re-election at a national election for another term of two years.
Nine members of the Association each of whom shall not be less than 10 years post-call and who shall be elected at a national election of the Association for a term of two years, equally from the three zones of the Association as set out in the Second Schedule to this Constitution and shall only be eligible for re-election at a national election for another term of two years, the president of the association only during the duration of his tenure as president of the association and the immediate past president of the association, as an ex-officio member.
Qualifications for Election into the General Council of the Bar is; any member of the Association seeking election into the General Council of the Bar shall be qualified for such election if he/she is a full member of the Association and has paid, as at the date of his/her nomination, his/her Bar Practicing Fees and Branch Dues as and when due, for three consecutive years immediately preceding the year of the election, inclusive of the year of election, is in private legal practice or has at any time not less than two 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.
It also stipulates that the NBA NEC shall have the additional power to investigate or appoint one or more competent persons to investigate the affairs of the Association or any of the Branches of the Association and to report to the Council or the Annual General Meeting or an Extra-Ordinary General Meeting of the Association in such manner as the Council may direct.
The new amendment also abolished the offices of assistant publicity secretary, treasurer, welfare secretary, first, second and third Vice Presidents and created the office of the Vice President. It stated that the National Officers of the Association shall be: The President, Vice President, General Secretary, Assistant General Secretary and Publicity Secretary
Also, it abolishes election to the office of the president of the association and provides that the Vice President will take over as president, adding that the amendment shall come into effect after the 2024 elections.
Section 9 (3) (c) says “With respect to the office of the President, is the immediate past Vice President of the Association. FOR THE AVOIDANCE OF DOUBT, ascension to the office of 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, election may be held for the office of the President. This provision shall become operative after the 2024 elections of the Association.”
Also, the provision regarding the disqualification or bar of members that has served two times was reduced from 10 to eight years to have a retrospective effect.
According to the amendment, “the Vice President in the event of vacancy in the presidency shall act only for 45 days. A bye election shall hold from the zone of the former president and whoever wins shall only complete the remaining tenure of the former president.
“The Vice president shall become president by ascension after his tenure The President and GS shall be a member of all Committees except ECNBA and Appeal Committee.
“Executive Director shall be responsible for the day to day running of the secretariat. The GS shall have only the supervisory role while the President shall have overriding power over the secretariat.
“The Executive Director will present secretariat reports.
“To requisition an emergency meeting, members shall need 300 signatures from 1/3 of the branches
“Five additional standing committees created; Ethics and Disciplinary Review Committee
Stabilization Fund Committee; Secretariat Employment Relations Committee; Remuneration Committee of the Bar; Electoral Committee of the Nigerian Bar Association (ECNBA) and Ethics and Disciplinary Committees (Panel). And these shall be located in each state of the federation and the Federal Capital Territory, Abuja,” the amendments provided.
Reactions, counter arguments
But this did not seat well with many lawyers who have gone public with their disagreements. In an open letter on dangers of Proposed Amendment to The NBA Constitution 2015 as Amended in 2021, a Notary Public, Olajide Abiodun, expressed grave concerns about the proposed amendment to the NBA’s constitution, describing it as a serious step backwards for the NBA,
He said, “The most concerning aspect of the proposed amendments is the abolition of elections for the presidency. This would be a major blow to democracy and accountability within the NBA. The proposed amendments also scrap the offices of treasurer, welfare, 1st, 2nd, and 3rd vice presidents. This would remove important checks and balances within the NBA’s leadership, and it would make it more difficult for the NBA to effectively represent the interests of its members.
“In addition, the proposed amendments would make it more difficult for young lawyers to participate in the NBA’s leadership. This would be a major setback for diversity and inclusion within the NBA, and it would make it more difficult for the NBA to address the challenges facing young lawyers. I urge you to reconsider the proposed amendments to the NBA’s constitution. These amendments would be a serious step backwards for the NBA, and they would do nothing to address the challenges facing the NBA.
“I would like to point out that there are no International Bar Associations that operate a system similar to the one proposed by the NBA Reform Committee. In fact, most bar associations around the world have strong democratic structures that ensure that the leadership of the bar is accountable to its members.
In addition to the concerns outlined above, there are a number of other potential dangers associated with the proposed amendments to the NBA’s constitution. These include: the potential for corruption and abuse of power, the lack of transparency and accountability, the difficulty in holding the leadership of the NBA accountable and decline in the quality of representation for NBA members. Specifically, the proposed amendments would make it easier for corrupt and self-serving individuals to gain control of the NBA. Without the checks and balances of elections and term limits, there would be no way to hold these individuals accountable.
“The lack of transparency and accountability would also make it difficult for NBA members to know who is making decisions on their behalf. This could lead to a decline in trust in the NBA and its leadership. Finally, the decline in the quality of representation for NBA members would be a major setback for the NBA. Without the input of a diverse group of lawyers, the NBA would be less likely to be able to effectively represent the interests of all of its members.
“I urge you to step down the proposed amendments for now and allow for more public debate and discussion. Only then will the NBA be able to make an informed decision about whether or not to adopt these changes. Why are we in a hurry?” he asked.
Another lawyer, who is a former Secretary of the Nigerian Bar Association (NBA) Constitution Review Committee, Mr. Olasupo Ojo, in his reaction, urged the Corporate Affairs Commission (CAC) to reject the newly amended NBA Constitution, saying it contains provisions not approved at the recent NBA Annual General Meeting (AGM) in Port Harcourt.
“In an objection letter addressed to the CAC Registrar General, Mr. Abubakar Garba, titled, “notice of objection to repeal of the Nigerian Bar Association Constitution, 2015 (as amended), he said that he was writing “to formally object to your Commission’s approval of the purported amendments now seeking to repeal the Extant Constitution.”
According to him, “Contrary to the provisions of section 833 above, the NBA by its Notice now seeks to repeal the Extant Constitution pursuant to Sections 28 and 29 of the proposed Nigerian Bar Association Constitution 2021 while no such resolution to repeal was ever passed. Find attached herewith as Annexure 3, the Resolutions passed at the 2021 Annual General Meeting (“AGM”) of the NBA, held on the 28th day of October, 2021 at the Yakubu Gowon Stadium, Elekahia, Port Harcourt, Rivers State, which clearly shows that no resolution was made to repeal the Extant Constitution.”
The Bar Leader stated that the process for the amendment of a Constitution “is entirely different, separate and distinct from the process for enacting a brand-new Constitution. As with the instant case, since no such notice was given to repeal the extant Constitution, the 2021 Annual General Meeting of the NBA could not have had the mandate or powers to repeal the extant NBA Constitution, especially since the AGM only had a notice to amend.”
He stated that “the crux of my objection, in precis, is on the grounds that the AGM only had notice to amend the Extant Constitution, and duly adopted and passed resolution to so amend. The present sections 28 and 29 of the proposed NBA Constitution 2021, seeks to outrightly repeal the Extant Constitution. To duly so repeal the Extant Constitution, there should have been 60 days’ notice to such effect in accordance with Section 20(1) of the Extant Constitution. This was however, not the case. Therefore, the 2021 AGM of the NBA held on the 28th day of October, 2021 at the Yakubu Gowon Stadium, Elekahia, Port Harcourt, Rivers State could not have duly adopted and passed any resolution (which it never claims to have passed) repealing the Extant Constitution.”
He prayed the CAC to reject the amendment as proposed, adding that he is “by this letter formally objecting to repeal the Extant Constitution as contained in sections 28 and 29 of the proposed NBA Constitution 2021, as same is not a true reflection of the resolutions reached at the AGM and notice to repeal, not having been circulated as mandated by the Extant Constitution.”
He urged the CAC to “uphold this objection” by refusing to register and approve the proposed “Nigerian Bar Association Constitution 2021” for failure to reflect amendments, for which proper notice had been given, duly approved and passed by the AGM.
Abdulrasheed Ibrahim in his write up on the matter asked “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.
Chief Bolaji Ayorinde (SAN) in a paper titled “Freedom of Association of Legal Professional – Navigating the Web of Statutory Professional Regulations” said “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?
NBA rejects amendment for VP to president without election
On its part, NBA has rejected the proposed amendment of the NBA constitution 2015 (as Amended in 2021) which among other things, abolished election into the office of President.
The rejection was reached during the NBA’s Annual General Meeting following a resolution among lawyers but was made public in a communiqué dated September 2 by the association’s spokesperson, Akorede Lawal.
According to the communiqué, the proposed constitution was rejected in its entirety by a majority voice vote.
The communiqué partly reads, “The following resolutions were reached: “By a majority voice vote of members present at the AGM, it was resolved that the proposed amendment of the NBA constitution 2015 (as Amended in 2021) be and is hereby rejected in its totality while the subsisting constitution be retained.”
The AGM also decried the poor funding of the National Human Rights Commission, Legal Aid Council and the Council of Legal Education and called for proper funding of statutory bodies for effectiveness and performance.
However, other aspects of the amendment may still ratified.
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