Wanted: Reawakening Of A Sleeping Giant By Joseph Jibueze & Rosemary Nwisi
The Nigerian Bar Association (NBA) was once a formidable bulwark against injustice and bad governance. Along with a vibrant civil society, the association fought for the masses. But, over the years, the NBA appears to have lost some of its verve. It is in recognition of the need for the Bar to step up when it matters that the theme: Taking the lead was chosen for this year’s NBA Annual General Conference (AGC) in Port Harcourt, the Rivers State capital. The conference, however, featured much more.
Many recall the role the Nigerian Bar Association (NBA) played during military regimes and in restoring democracy. Notably under the leadership of the late Alao Aka-Bashorun, the association fought for good causes and spoke with moral authority. When former Head of State General Ibrahim Babangida took the courts for granted, the NBA embarked on a successful strike and stood up against tyranny.
Some of the issues NBA fought against are still there. Organised strongholds of dissent appear to have been successfully dismantled. The civil space is constricted as more Nigerians plunge into poverty due to bad governance. The judiciary, as an institution, is in need of the support a stronger Bar association can provide.
The NBA is doing its bit. For instance, it opposed the Twitter ban. But while the association may not have had an activist-leader in the mould of Aka-Bashorun for some time, the NBA admits that it needs to do more, and better.
The signs are promising, because discussions at its 61st Annual General Conference (AGC) in Port Harcourt, the Rivers State capital, revolved around the theme: Taking the lead.
On the topic choice, NBA explained in the Concept Note that it was designed to help “reposition the legal profession to play our critical role of taking the lead in its role as an instrument of social engineering and a catalyst for national development.”
It adds: “The theme lends itself to the opportunity to shift from an approach of being reactive to being proactive and, where necessary, to challenge the status quo, speak truth to power and advocate for a better society.
“Taking the lead suggests that we assume responsibility for proffering solutions and challenge ourselves to take the lead in implementing these solutions. The conference aims to move away from diagnostic discourse to a focus on being more prescriptive as to what needs to be done.”
The week-long conference, which featured a health walk and numerous side shows, combined virtual and physical participation, with some speakers connecting from various locations to the over 25 technical/breakout sessions.
No fewer than 10,000 delegates attended.
CJN, Wike’s call to the Bar
Speakers at the opening were unanimous in their call to the NBA: rise in defense of the masses and fight for good governance.
Chief Justice of Nigeria (CJN) Ibrahim Muhammad, represented by Justice Mary Odili, noted that the judiciary also needed a vibrant NBA.
“Not all the challenges that the judiciary face can be internally addressed. Some (such as the poor condition of service of national judicial officers) demand the support of the Bar for their actualisation,” he said.
Justice Muhammad urged the NBA to help arrest what he described as an “assault” on the judiciary by some politicians.
He said: “Another challenge which implicitly impacts the administration of justice is the assault that litigants, especially politicians, launch on the institution of the judiciary when their ends are not met.
“Unfortunately, some members of the Bar also join them in ridiculing the institution of our courts in private discussions and in national dailies…
“When the judges, who do not have a right of reply are subjected to disparaging and humiliating comments in the media, it silently kills their morale and dedication to the cause of justice.
“I, therefore, urge the Bar to rise in defence of the Bench at all times…It is my earnest expectation that the NBA will take on the duty to discipline its erring members who do not only ridicule the judiciary but also abuse its processes.”
Rivers Governor Nyesom Wike also spoke in the same vein, urging the NBA to pick up the gauntlet.
He said: “A little moment of introspection would reveal that the NBA is not what it used to be before the estimation of Nigerians in terms of the quality and commitments or its disposition to the struggle for the rule of law, social justice and national development.
“Since the birth of this nation, Nigerians have relied on the law and our legal system to settle disputes, prevent crime, promote democracy, protect human rights and regulate virtually all aspects of both private and public life…
“The rule of law and social justice are expressed in the constitutional provisions that guarantee equality of all before the law, the entitlement to equal protection of the law without discrimination, the protection against arbitrary interference with the freedom of citizens and the accessory rights to substantial justice before the ordinary courts of the land.
“However, while rights have meaning only when citizens can enjoy them, the desire for freedom, democracy and social justice is, indeed, the birth right and natural aspiration of every Nigerian citizen.
“As a profession and as a pluralistic assemblage of learned men, the NBA has greater responsibility to promote and protect the rights of Nigerians at all times and in all circumstances.”
For the governor, the central question is whether the NBA has been living up to its credo and responsibility. He does not think so.
Wike continued: “While I would leave us to be the judge, my personal conclusion is that, for years now, the NBA has focused less on promoting and fighting for the values of good governance, democracy, judicial independence, human rights and the rule of law.
“These are some of the concerning facts: never in our political history has Nigeria been so badly governed and denied of good governance, with the Federal Government woefully failing in its basic duties to provide for the wellbeing and security of its own citizens as we have experienced in the last six years.
“Daily, the economic, social and political rights, including the rights to personal security, freedom of speech, association, dissent and peaceful protests, as well as the right to personal liberty, are being violated with impunity by the present central administration and its security apparatus.
“The invasion on personal liberty has been brazen and indiscriminate, such that even judges of the superior courts, including Supreme Court justices, have in the recent past been victims of midnight assaults on their premises and subjection to unlawful arrests and imprisonments.
“Lately, the new devious trend is to tag security risks to innocent Nigerians and opposition elements and use the immigration authority to seize their international passports without a prior court order.
“In the face of sustained political intimidation and pressure from the Federal Government, lack of judicial courage is becoming widespread among judges, which is undermining public confidence, discrediting the justice system and causing irreparable damage to the fabric of our constitution and the rule of law.
According to the governor, also a lawyer, the association must wake up.
He said: “Unfortunately, the NBA becomes part of the problem when it remains discomfortingly indifferent and cowardly voiceless to the many issues and challenges affecting good governance, democracy, the legal system and the rule of law in our country.
“We agree that confronting a blind and brutal government may be tough and often misinterpreted politically, but there can be no room for reticence, retreat or surrender if we must aspire to have excellence in our judicial system and prevent innocent persons from suffering adversity because of the failures of our legal system or judges’ lack of courage to enforce our laws with equal measure, or worse still, because they have sold out to some form of political intimidation or pressure.
“Taking the lead, therefore, is to transform and reform the NBA to an activist association willing and ready to use the law to advance the values and aspirations of our profession and the progress of society as a positive social force for change with courage and determination.
“Taking the lead is to reclaim and uphold the values of the profession we once held; to have the courage to challenge what is wrong and unjust; to break free from tired traditions and status quo of the system; to question the motives and rightness of unfair and inequitable governmental actions and decisions; as well as to take appropriate and bold steps to eliminate the increasing costs, delays and drudgery of our criminal justice system.
“Taking the lead is to embrace the truth and having no patience for injustice; no tolerance for bad governance, and having no sympathy for political leaders who fail their citizens or for timid and incompetent judicial officers who betray their judicial oath with wrong and conscienceless judgments.”
The governor said he hoped the NBA would “reawaken to its responsibility as the trustee of our legal system, resolve to guard against the easy slide into passivity and find the courage and inspiration to fight for good governance, democracy, judicial independence and the rule of law as the identities and traditions of our country through positive activism”.
Kukah: Judicial activism needed
Catholic Bishop of Sokoto, Matthew Kukah, who gave the keynote, emphasised the need for what he called “the urgency of judicial activism”.
This, he said, was especially needed as Nigerians were fast losing faith in the government.
“Everywhere I go in Nigeria, one word keeps coming out: ‘I am tired.’ Most people you talk to will tell you: ‘I am tired.’ Collectively, Nigerians are exhausted, mentally, psychologically, physically and spiritually.
“However, it is not time to trade blames but to ask ourselves: how did we end up with a country that is unable to perform?”
Kukah urged lawyers to fight for the masses and speak up against injustice.
“You are either a lawyer for the rich and the powerful, or a lawyer with enough sensitivity, because every good lawyer has to have a third eye,” he said.
NBA President Olumide Akpata urged to work for a better country, Nigeria having, in his view, underachieved given its abundant resources.
He said more was also expected of lawyers serving in government.
“If we are to make the desired progress that will take Nigeria to the promised land, we must speak the truth to all and indeed to ourselves by acknowledging that in terms of the abundant human and natural resources that God has blessed Nigeria with, we have definitely been punching way below our weight. We can begin to do much better,” he said.
Wanted: a new constitution
The need for a new constitution dominated discussions at the closing plenary with the sub-theme: We the people…a debate on constitutional amendment.
The panelists included Sokoto State Governor Aminu Tambuwal, activist-lawyers Mike Ozekhome (SAN) and Femi Falana (SAN), as well as professor of law Chidi Odinkalu and an activist Ann Kio-Briggs.
Tambuwal, a former House of Representatives Speaker, urged the National Assembly to provide for referendum in the 1999 Constitution. He believes the constitution, as inherited from the military, lacks “originality from the people” and tells a lie in its preamble.
The lawmakers, he advised, should pass a law under the doctrine of necessity for the production of a new constitution through a referendum.
“Every amendment to the constitution should be subjected to a referendum in line with the doctrine of necessity,” the governor said.
Tambuwal got the backing of lawyers when he put it to a voice vote. He said: “Those in favour of a new constitution say ‘aye’”, and the packed hall responded in the affirmative. No one said nay”.
He said: “Unless we’re able to address some of these issues, much of the talk about restructuring and fiscal federalism can hardly be achieved.
“So, I recommend highly that we encourage the National Assembly to come up with an amendment that will make it possible for the Nigerian people to truly accept whatever is going to come out of this current constitution amendment and, therefore, legitimising the opening phrase: ‘We the people…’
“The National Assembly should pass a law enabling us as a nation to commence the process of a constitution amendment via a referendum. It can be done.
“That may even be the panacea we’re looking for to address some of these agitations.
“There should be the political will on the part of our leadership to commence the process that will send the right signal to the people of Nigeria that the administration is actually ready to listen to the yearnings and aspirations of the people. I believe it can be done and it can be done now.”
Ozekhome called for a new constitution through a referendum, arguing that any alteration to the extant “illegitimate document” would be invalid.
He said: “You cannot amend a bad document. It is not possible. An illegitimate document remains illegitimate forever.
“The 1999 Constitution is bastardy and nothing can cure it. Even a million amendments multiplied by another million amendments can never cure the present constitution of its illegitimacy.”
Ozekhome led the lawyers on a rendition of Fela’s song “You can’t dash me human rights.”
Falana agreed that a new constitution was needed, but he thinks it may not be feasible.
He believes that “periodic” amendments, some of which he said could come about through court decisions, may be more realistic.
“Politically, it may not be possible to have a new constitution because the lawmakers are comfortable with the status quo.
“You have to start a campaign to overwhelm the National Assembly to appreciate that we need a new constitution,” Falana said.
The session moderator, Chief Joe-Kyari Gadama (SAN), noted: “You cannot put something on nothing and expect it to stand.”
It was resolved that the NBA would draft and send a bill to the National Assembly on a new constitution through a referendum.
Ndume: I’ve not seen budget proposal
One of the longest-serving senators, Ali Ndume, was a panelist at the session: Financing Nigeria – at whose expense?
He blamed budget deficits on high recurrent expenditure.
The senator said: “If you look at the recurrent expenditure of Nigeria from 2018, when embargo on employment was in place, it was N3.5 trillion. It went up to N4.07 trillion in 2019.
“It was N4.48 trillion in 2020. This year it is estimated to cost N5.56 trillion, and in 2022 budget, recurrent expenditure is proposed at N6.8 trillion.
“We are not employing; we are not increasing salaries; the pension is contributory, which means that pensioners are collecting the monies they saved during their active service days. Now, the question is: how come the recurrent expenditure is going up and not by small amount?
“It increased by N3.5 trillion in 2018, when embargo on employment was on, to N6.8 trillion. Today, our debt service is half of this amount. That means something is wrong somewhere.
“Lawyers and Nigerians generally must start to ask questions.”
Ndume said the legislature needed more time to study budget proposals.
“When budget is presented late, and we try to microscopically look at it, they will accuse us of trying to hold it down. They will put pressure on us to pass it, and Nigerians will call us a rubber stamp legislature.
“Let me correct this impression the people have about legislators and budgets. I am telling you that I have not seen the budget proposal as I speak.
“I asked for a soft copy so that it will give me the flexibility of looking at it very well, yet it was not provided. It is important we begin to get serious about some of these issues.”
Ndume said he had no problem with borrowing if it is to fund infrastructure rather than recurrent expenditure.
NBA faults CAC
Part of the conference was the NBA annual general meeting, at which statutory bodies such as the Council of Legal Education (CLE) and the Corporate Affairs Commission (CAC) usually presented reports.
But the CAC had no report, which did not go down well some lawyers, most of whom wanted to engage the commission on the hitches they experience in the agency’s operations.
The Registrar-General, Abubakar Garba, wrote to inform the association that the CAC would not present a report this year.
Akpata said Garba may be unhappy with numerous complaints about poor services by the CAC and the consequent bad press.
“We have set up a taskforce and helpdesk. The complaints keep coming. If they’re not efficient, we’ll call them out,” the NBA president said.
‘Improve quality of the Bench’
Justice Oludotun Adefope-Okojie of the Court of Appeal, who spoke during the session: Justice Sector Reforms: interrogating the functions of the Bar and the Bench, urged the NBA to do more towards improving judges’ appointment process.
“There is a huge process associated with appointment of judges. The problem is: the Bar is not doing what it is supposed to do,” she said.
Chief Judge of Ogun State, Justice Mosunmola Dipeolu, admitted that the appointment process had flaws, adding that the NBA has a huge role to play in getting it right.
“I am not satisfied with your (NBA’s) job. Make your stand known; you will be respected for it,” she said.
The session moderator, Dr. Babatunde Ajibade (SAN), believes the process of appointing judges should be even more rigorous than meeting the requirement for elevation to the rank of Senior Advocates of Nigeria (SAN).