NBA, ECNBA and The Tyranny Of Minority by Abdulrasheed Ibrahim
When the 2015 NBA Constitution came into being and the 2016 election voting was electronically conducted under it, I was one of those who glorified the said Constitution for being revolutionary. To this effect I wrote an article titled SUSTAINING THE NBA REVOLUTION published on the THISDAY Newspaper’s LAWYER pull out of 13.09.2016. I said the Constitution was revolutionary in the sense that apart from getting rid of the delegate system of voting, it also restricts the number of terms a lawyer can serve in the NBA executives whether at national or branch level. Along the line, a particular lawyer discovered some defects in this same Constitution and went to court. The outcome of that litigation nearly sent the said Constitution to the graveyard.
On 2nd July 2018, I got a letter dated 29th June 2018 from the Electoral Committee of Nigerian Bar Association (ECNBA) containing its short ruling on my appeal against its earlier decision disqualifying me from running for the position of National Publicity Secretary in the forthcoming 2018 NBA election on the sole ground that I and the seconder to my nomination were not NEC members. In the letter jointly signed by the Chairman and Secretary of the Committee, it is stated that :
“Following your appeal dated 15th June 2018 against the decision of the ECNBA contained in our letter dated 14th June, 2018, we regret to inform you that the Committee find no merit on your said appeal. Consequently take notice that you are hereby disqualified from contesting for the office of the Publicity Secretary of the NBA at the 2018 NBA Elections slated for the 28th July 2018 by virtue of non-compliance with Section 8(3) (c) (ii) of the NBA Constitution 2015. The Committee wishes you well in your future endeavours.”
The above is ECNBA’s short ruling to my SO LONG A LETTER of appeal already in the public domain. I belong to the school of thought that says: “For every wrong decision or injustice there is always a regret”. If truly there is no merit in my appeal, is there any merit in the Section under which I was disqualified? It has become necessary for us here to again re-examine how meritorious is this Section 8 (3) (c) (iii) . Although I had earlier analysed this particular Section relating to the membership of NEC and other issues in my said letter of appeal, but since the ECNBA had decided to ignore and remain silent on that, we cannot not be estopped from revisiting the issues. The ECNBA having exercised both electoral and appellate jurisdiction on its own decision, then the Committee cannot take exemption from the impression right thinking men would go away with on its decision as propounded by Lord Denning, the great eminent English Jurist in the case of Metropolitan Properties Ltd Vs. Lannan (1969)1 QB 577 when he also observed that:
“Justice must be rooted in confidence and confidence is betrayed when right thinking people go away saying the judge is biased”.
I have said earlier in one of my previous posts titled NBA: ARE LAWYERS AFRAID OF REVOULTION? that :
“Whether I am cleared to run in the race or not, I believe I have succeeded in raising a BIG ISSUE for debate among lawyers. The ball is now in the court of the lawyers whether to revolutionize the system or not.”
Many of our colleagues have expressed great surprise as to what they equally consider to be a great disenfranchisement of lawyers from NBA politics which ought not to be. While some of our colleagues have suggested that we should proceed straight to the court of law to challenge this inequality, the question some of our colleagues are still asking is that: must a lawyer duly call to the Nigerian Bar and discharge all his or her financial obligation to the Nigerian Bar Association be a NEC member before he or she can contest for election in NBA? We shall look into all these as we proceed in this discuss. Ordinarily one should have proceeded against NBA on this issue before now, but since we all live in a country where when it comes to litigation, the Defendant always tries to do everything to frustrate the case of the Claimant by bringing frivolous preliminary objections against the suit of the Claimant. That issue alone may take the court years to determine. I think if we decide to go to court now, I believe the issue of LOCUS STANDI is settled by the ECNBA’s decision on my disqualification on the ground that I was not a NEC member. Remember there is a settled principle of law that a party that is not involved in the process of election or did not participate in an election may not have the capacity to challenge the outcome of an election.
Our first point of call in this struggle is the PEOPLE or LAWYERS’ COURT. The reason for this is that I subscribe to the view that judgment of the people is as important as if not more important than the judgment of the court. Hon. Justice Adetula Alabi , a former Chief Judge of Lagos State once propounded this view several years back when he was disengaging himself from the trial of Major El-Mustapha :
“I am also conscious of the fact that there are three types of judgments to wit: judgment of court, judgment of the people, and the judgment of God. In my judicial career, I have always been conscious of the aforementioned forms of judgments. It has always been my view that the judgement of the people is as important if not more important than the judgment of the earthly judge.”
It is my contention that the 2015 NBA Constitution that disallows lawyers who are not members of National Executive Committee (NEC) of the Nigerian Bar Association (NBA) to vying for the positions listed in Section 8(3) (c) (ii) is not only discriminatory but also unjust and unfair. Such provision is against the spirit of the Rule of Law being promoted by the NBA. While the 1999 Constitution of Federal Republic of Nigeria as amended which is the supreme law in the land guarantees the rights of its citizens to vote and the voted for, same cannot be said of the NBA Constitution which only allows majority of its members to vote but such majority cannot be voted for. Any member of the NBA no matter how high he may be or level of his or her contributions to the profession may be will not be eligible to contest for any position as National Officer if he or she has not held position in any NBA branch executives before or being co-opted into the NEC. The next issue we need to examine now is the composition of the NEC and how democratic it is. By Section 7 of the NBA Constitution, the composition of the National Executive Committee (NEC) as follows:
(1) The National Executive Committee shall comprise the following:
(a) National Officers;
(b) All past Presidents and General Secretaries;
(c) All Chairmen and Secretaries of registered Branches;
(d) One (1) other representative of each registered Branch;
(e) Chairmen and Secretaries of Sections;
(f) Other deserving members of the Association co-opted by the National Executive provided always that the total number shall not exceed 180 members in the following categories:
(i) Senior Advocate of Nigeria-40
(ii) Senior Members who are not over 25 years post call-40
(iii) Special interest groups/active members who are over 10 years post call-100”
From the above composition of NEC any lawyer that does not fall into any of the above categories will only be eligible to contest for any substantive position as the National Officer of the NBA. He can only vote but cannot be voted for. The elected lawyers in NEC can be differentiated from those not elected but co-opted into the NEC. The ECNBA got it wrong when it said I did not comply with the Section 8 (3) (c) (ii) as such compliance if one was or is not a Chairman or Secretary of a branch executive can only be made possible through lobbying to be co-opted into the NEC as such is not subjected to voting to be elected at the branch level to the NEC. This was the same problem we had during pre 2015 NBA Constitution when the elections into the National Offices were done through the delegate system of voting. The Chairmen of various branches were the alpha and omega when it came to the selection of the delegates as such was not by voting. Then they only handpicked those lawyers that would support and vote for their own anointed candidates.
As it was under the pre- 2015 Constitution nothing much has changed as far as composition of the NEC is concerned, the co-option of members into the NEC still remains the same old way as it used to be done. Co-option into NEC is a winner take all .You cannot expect a candidate that emerge the President after a keenly contested election to now abandon those in his camp during campaign and go to the camps of those he defeated to co-opt members to the NEC he is going to preside. Therefore Mrs Hairat Balogun , a life Bencher was right when she once observed that:
“NBA is now a political organization and members are sponsored for appointment into important Bodies as patronage for loyalty to the incumbent president who thinks they supported him into office.”
This is more the reason why we are clamouring that let the NEC membership be democratized rather members being co-opted for us to have an efficient, strong and dynamic NBA because he who pays the piper dictates the tune. For the benefit of those who do not know, what is more operative in NBA politics in most branches and at the national level is nothing but the tyranny of minority, apology to our late great Hon. Justice Ejiwunmi ,JSC who propounded the theory of tyranny of majority in the case of Muhammed Abacha Vs, State. Most important decisions in NBA are taken by the minority in many Branches’ Executives rather than the majority. This is not to say that the national body is freed from these vices. If you are not wanted in the midst of other executives, consider yourself a biblical “rejected stone”. Mrs. Funke Adekoya, SAN once depicted the scenario we are trying to paint as follows:
“Instructively, the presidency of the NBA is not a one man affair; that is why the president has many other national officers to support him. That is why the president has three vice presidents, has a treasurer, has a financial secretary, has a welfare secretary, and has a legal adviser. And if everybody is allowed to do their jobs, then it is not a stressful exercise at all. The problem that we are actually seeing in the Bar Association today is that people are trying to put all the powers of all the officers in one place that is not what it is supposed to be.”
If you are not convinced by this our argument, let us see whether this will convince you. When the ECNBA dispatched to me the hard copy of its first letter dated 13th June 2018 notifying me that my screening to contest was unsuccessful .I got a phone from the DHL office trying to confirm my actual address .The actual address contained on my letter headed paper with which I submitted my nomination form with other documents is No. 208 but ECNAB addressed its letter to me to No. 28. When the DHL eventually brought the letter to me and I read through as well as looking at the composition of the National Officers listed at the bottom of the letter, I was surprised by what I saw. The name of our Mr. John Austin of the NBA Lagos Branch who was declared on 17th October 2017 by an Abuja High Court as the National Publicity Secretary was not on NBA letter headed but it was the name of another lawyer that is there as the National Publicity Secretary.
One of the questions I began to ask myself was that the NBA having upon the order of the court sworn in Mr. John Austin as the National Publicity Secretary, does the NBA lack the fund to print another letter headed paper to reflect the names of the actual National Publicity Secretary in person of Mr. John Austin? Surprisingly, no NEC member has been able to draw the attention of the National Executives to this fundamental defect? Except the ECNBA can convince me that it wrote me with wrong letter headed, I shall continue to see this as one of the unfairness and injustice we are complaining about in the NBA. While I have not ruled out completely the possibility of dragging the NBA to the court of law on my disqualification which I still consider unjust, unfair and discriminatory, for now I shall continue to drum it to the hearing of every lawyer and those at the helm of affairs that the NBA must be fully democratized. One of the questions we need to be asking all the candidates in the race now particularly those for the office of NBA President is that: Are they ready to reform or revolutionize the present NBA system?
ON ATTRIBUTES OF LEGAL PRACTITIONER
Now, it is, I think, a fair characterization of a legal practitioner’s responsibilities in the country that he stands as a ‘shield’ in defence of right and to ward off wrong. In a profession charged with such responsibilities, there must be exacted those qualities of truth speaking, of high sense of honour, of the strictest observance of fiduciary responsibility.
Per MUSDAPHER JSC (as he then was) in Okike Vs L.P.D.C (2005) 15 NWLR (Pt. 949) Pg. 510 Para C.
THE SETTLED PRINCIPLE OF LAW
On whether a candidate who withdraws from election can complain later
“It is basic that the Appellant who withdrew from the contest cannot validly complain about the conduct of the primary election. He has no competence and authority to complain or institute an action. He cannot be allowed to blow hot and cold at the same time. He has no capacity to approach the court to enforce any right from the same primary.”
See Buhari Vs. INEC & Ors (2008) 18 WRN 36; Bamigboye Vs. Saraki (2010) 14 WRN, 125; ADEGBUYI Vs. APC & ORS. (2014) Vol. 12 MJSC Pg. 142-143 Paras G,A
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