Saving the NBA from Itself

Lawyer Guest Columnist: Olawale Fapohunda

Desire for a Public Interest Lawyer

I voted for AB Mahmoud, SAN for the NBA Presidency, and I got many lawyers in my circle to do the same. I had nothing against the candidature or person of JK Gadzama, SAN. Indeed, I find Gadzama a very likable person and irrespective of what anybody says about him, one cannot take away his accessibility, willingness and ability to engage lawyers of all ages.

My vote was influenced by the desire to have a public interest lawyer, at the helm of affairs of NBA. I have severally agonised at the inability of the NBA to achieve its public interest potential. The successful NBA Presidencies have been those with the public interest flair of Alao Aka- Bashorun, who under very difficult political circumstances, placed the NBA at the heart of governance in Nigeria. Successive NBA Presidencies- JB Daudu, Rotimi Akeredolu and Austin Alegeh took up important access to justice issues. They established a template for a lawyers association that sees no contradiction between working in the interest of its members and working for the public good.

‘A Brave New Bar’

The election of AB Mahmoud, therefore, came with a lot of expectations. Many lawyers are probably unaware of his civil society network. Add this to his very impressive corporate contacts, and many of us cannot be faulted for thinking that his vision of ‘a brave new bar’ will be more than an election slogan.

In August 2017, it will be one year since that historic election that ushered in AB Mahmoud, and if the truth be told, leadership has taken flight from the NBA. There is a palpable air of disappointment and concern about the future of the NBA.

To be fair, the crux of the problem relates to the NBA 2016 National election and the resulting legal proceedings challenging the integrity of the electoral process. In addition, the problem caused by the application of the 2015 NBA Constitution, resulting in conflicts in some branches, particularly Ikeja and Abuja branches, culminating in the nullification of the NBA Constitution, have in many ways placed obstacles on the road to a brave new bar.

There have also been a number of own goals. Quite apart from what strangely appears to be a deliberate policy of institutional weakening which has left the NBA bureaucracy in dire straits, the position flip flops and an inexplicable unwillingness to sustain the important milestones of previous administrations, have all combined to leave the association in an unenviable state.

It is normal these days to hear leaders of the bar, helplessly speak about the ‘complex nature of the situation’, emphasising that there can be no easy solution. Outside the ‘complexity of the situation’, sentiments have drifted towards ethnicity and religion. The office of the President of the NBA or that of the Chairman of a Branch is a call to Pro-bono Service. It is therefore, difficult to understand why non-paying, thankless part time positions, should evoke so much emotion and passion akin to a do or die scenario. Surely it cannot be about enhancing ones CV!

Need for a Crisis-Free NBA

We now need to reverse the politisation of the NBA and halt this race to the bottom. As an important first step, there should be a collective appeal to JK Gadzama, to reaffirm his commitment to strengthening the Bar. As a consummate bar man, it cannot be his desire to see the NBA engulfed in crisis. There are definitely lessons to be learnt from the 2016 NBA elections. The electronic voting system was a bold and radical initiative, to simplify and reduce the cost of our elections. It must be obvious to all, that there is room for improvement, in order to ensure that the process is better understood by lawyers. Of course, ensuring that many more lawyers are Internet compliant, is an important step.

This collective appeal should also be extended to those lawyers that have taken the association to court. We need the activism, energy and legal skills of these lawyers to solve many rule of law and human rights challenges, facing the poor and vulnerable in Nigeria today. There are too few lawyers working on justice sector reform matters. Specifically, there is a deficit of lawyers working in prisons. We have more than 20,000 prisoners across the 240 prison facilities in Nigeria, that are in urgent need of legal advice and representation. Obtaining a court order declaring their prolonged incarceration illegal and unconstitutional, will, in my considered opinion, be far more self-fulfilling than obtaining a court order against the NBA. For those who find prison litigation boring, there are over 3,000 Boko Harm detainees, who desperately require legal representation.

It is sad that the current state of uncertainty within the NBA, has made it difficult for the leadership of the Bar to respond in a coherent and result oriented manner to the needs of the legal profession and the country as whole. How can the NBA complain about the inability of the Buhari Administration to make rapid progress on issues of administration of justice, a core mandate of the NBA, if we are struggling with the administration of the Bar? The second year anniversary of the Buhari administration will have been a good opportunity to take stock of the state of the justice sector, and complain about the lack of meaningful progress across the sector. Despite several requests, we are yet to see Buhari’s Administration’s vision, policy statement and action plan for the justice system in Nigeria. We have complained about the state of the judiciary, the police, the prisons and justice institutions like the Ministry of Justice, Legal Aid Council and the National Human Rights Commission.

Given its current crisis, how can the NBA tell the Buhari Administration that on judicial reform, it is simply unacceptable that the most significant intervention in the judiciary over the last two years, was the invasion of the houses of judicial officers and the failing attempts at prosecuting those arrested? Concerning the police, is the NBA in its current shape able to tell the Buhari administration that two years of change has done little to change public perception of corruption, impunity, absence of accountability, incompetence, and failure to control the law and order situation?

Is the NBA in a position to tell the Buhari Administration that, keeping thousands of persons in our prisons without trial, is not simply a law, justice and human rights issue or about costs, it is also now one of national security. The evidence of this can be seen first hand in the on-going struggle of our security agencies, including the Nigerian Military, to find secure prison facilities for arrested insurgents, who constitute a clear and on-going threat to the peace and stability of Nigeria. That over the two years of the Buhari Administration, justice institutions established to respond to the needs of the poor and the vulnerable, the Legal Aid Council and the National Human Rights Commission, are themselves now poor and vulnerable, and are struggling to fulfil their mandate.

Reconciliation and the Need for a Change of Direction

It must be increasingly obvious to the NBA leadership now, that a change of direction is urgently required. The silly practice of profiling those ‘who voted for us and those who voted against us’ should be stopped forthwith, as a component of on going peace-building efforts. Pretending that all is well in the midst of court cases and increasing vocal opposition to the administration, is simply ridiculous. The NBA President and his team should take additional deliberate steps to reach out to those aggrieved not only by the existence of his administration, but the policies of previous ones.

With just over a year before the next cycle of campaigns begins, the NBA leadership must now take a realistic look at what is achievable for the bar and for the people of Nigeria. In my respectful view, hope is not lost. Peace and the setting aside of the Federal High Court judgement nullifying the NBA Constitution are attainable goals.

The agenda, going forward, must now be limited and focused. The process of professionalising the Bar should be pursued with additional vigour. The lawyer’s verification exercise should continue. The delays encountered by lawyers in obtaining stamps should be addressed. The NBA should now provide strategic direction on administration of justice reforms, including taking up a leading role in facilitating Access to Justice for the indigent. The proposal to establish a National Pro- Bono Centre within the NBA Secretariat, should be implemented. It is also important that the NBA continues to engage Justice Sector related committees in the National Assembly. We have had more than 10 years of unsuccessful legislative advocacy for the enactment of key justice sector bills including the Police Act Amendment Bill and the Prisons Act Amendment Bill.

In all, it will be helpful for the leadership and aggrieved lawyers to keep remembering that the NBA is a professional association, and not a political party.

Olawale Fapohunda, Managing Partner, Legal Resources Consortium