Ensuring Free and Fair NBA Elections

Since the introduction of universal suffrage by e-voting in 2016, the elections of the Nigerian Bar Association (NBA) into national offices have been fraught with allegations of irregularities, manipulation and deliberate tampering with the process. This has oftentimes resulted in litigation, some of which is still pending in court. In a couple of weeks, Nigerian Lawyers will go to polls again to pick their national officers for the Association. Human Rights Lawyer, Dr Chidi Anselm Odinkalu, who has always advocated for free and fair NBA elections, proffers a panacea to the NBA which can guarantee a free, fair and credible election come July 29 and 30, 2020. The question is whether the Electoral Committee of the NBA (ECNBA), will give these suggestions any consideration

Too Big to be Left Alone: The 2020 Elections of the Nige rian Bar Association
Chidi Anselm Odinkalu
Voters Register

Seyi is a Lawyer, practicing somewhere in North-Central Nigeria. He has been enrolled for more than five years, and is active in his Branch of the Nigerian Bar Association (NBA). He is active on social media, and is competent in basic digital applications. He is punctilious about paying his Annual Practicing Fees and, as an ambitious Lawyer who desires to rise up the highest echelons of the professional grease-pole, he is also fully paid up on his Branch membership dues and has been for over five years. As such, Seyi was pleased, but not surprised when he saw his name among those listed as eligible to vote in the NBA’s leadership elections at the end of July 2020. To activate his voting right, however, Seyi needed to go to the NBA portal to verify himself. After four days of trying unsuccessfully, he had exhausted the help menu available, run out of his phone-a-friend options and was himself exhausted. The last time a similar ballot took place in 2018, similar frustrations with “verification” had precluded Seyi from voting. There was, for him therefore, a sense of déjà vu to this experience.

Determined this time to rectify this matter and ensure he was able to participate in the vote, Seyi sent a message to the Electoral Committee of the NBA (ECNBA) bringing his predicament to their attention, and seeking their assistance to resolve it. Seven days later, he had still to hear from them.
Ugo, another Lawyer in another Branch of the NBA, found that the final voters register released by the ECNBA contained three different entries for him. In effect, he was registered to vote three times as the same person. Embarrassed but conscientious, he wrote to the ECNBA at the end of June to bring this to their attention. Over one week later, they had still not acknowledged him.

Delegates System of Voting
The experiences of Seyi and Ugo, are routine among the thousands of Lawyers seeking to participate in the forthcoming elections to the leadership of the NBA. The Association, which prides itself as the largest body of Lawyers in Africa, must elect a new leadership every two years. 28 years ago, in Port Harcourt, Rivers State, the effort to elect the leadership of the Association ended up in a fiasco, which the then ruling military regime, found useful. The NBA went into abeyance, for six years. When it was resuscitated, it was on the understanding that its leadership would be elected by a handful of Branch delegates, not on the basis of universal professional suffrage among its members as used to be the practice. Being a delegate in the NBA elections became a huge revenue stream for those selected to be delegates, an endless drain on those seeking to serve the Association, and a source of corruption from sundry sources. It was also cumbersome. As this writer had occasion to recall in 2012, it was “a four-day jamboree. On the first day, delegates travel to and arrive at the venue in Abuja. On the second day, the delegates are accredited and addressed by the candidates in a “Manifesto” night. Voting takes place on day three, followed by counting and declaration of results. On the fourth day, most travelling delegates return home”. It was clear, as I pointed out then, that “[E]lections at the [Nigerian] Bar are one car crash away from being hostage to avoidable tragedy.”

Restoration of Universal Suffrage
The clamour to reform this system, was irresistible. In 2016, then NBA President, Augustine Alegeh, a Senior Advocate of Nigeria (SAN), achieved reform of the Constitution of the NBA to restore universal suffrage. The population of Lawyers in the country, had grown in geometric progression. In its first 100 years, between 1888 when Nigeria enrolled Christopher Sapara-Williams as its first Lawyer, and 1988, the country achieved less than 14,000 Lawyers on the Roll. It took just about 25 years, to add another 100,000 to Nigeria’s Roll of Lawyers.

As with most things Nigerian, however, the current figures for Nigeria’s population of Lawyers are not readily handy, but the number is well over 150,000. With this geometric growth in its population, the leadership of the NBA was well advised in 2016 to condition the implementation of universal suffrage on the deployment of digital solutions.

Achieving this, however, required data management disciplines and capabilities that were not historically very Nigerian. The NBA’s records, were historically poor. The Roll of Lawyers was kept with the Supreme Court, not the NBA, which is, in actuality, a mere non-governmental organisation (NGO). Data synergy has never existed between the NBA and the Supreme Court, nor has it ever been achieved. The NBA instituted digital democracy solutions, before it had deployed the systems or processes to manage them credibly. These gaps were liable to be instrumentalised, by those who wanted to make sure that the NBA was defanged as a force for good in Nigeria. There were many of them.

Too Important to be Left Alone
With its numbers and its reach, the NBA is, potentially a powerful force for good. Indeed, until the Port Harcourt debacle, it used to be so. Alao Aka Bashorun, the charismatic and thoughtful Lawyer who led the Association between 1987 and 1989 made the NBA a formidable force in the country, on a par, arguably with the military. When he entered the fray on any issue, the country listened. The military regime of Ibrahim Babangida, whom he wrestled, found this worrisome and invested considerable resources in discrediting it. Port Harcourt was reward for their efforts.

That experience continues to shape the way in which government and vested interests in the country, see and engage with the NBA. Sometime around 2011, as the NBA prepared to elect yet another President in 2012, a Governor in the then ruling Peoples’ Democratic Party (PDP), approached a SAN who was his personal Lawyer, and asked the SAN whom he thought “they” should support among the emerging candidates. The SAN, who seemed genuinely surprised, asked the Governor, who was not a Lawyer, why he should be interested in candidates in an election in which the Governor could not have a vote. The Governor’s answer was quite straightforward: “You don’t know that the NBA is too important to be left alone?”

The interests in the NBA elections, are not just political. There are also fiscal and economic interests. The Association is a billionaire in its own right, and generates even more billions from statutory and compliance transactions from its members. With a network of 125 branches spread all over the country, its membership and footprint is a veritable mine of data in an under-banked and under-recorded country. Access Bank, the sole banker to the NBA, has, therefore, emerged as an interested party in the Association’s elections. This is one account, it cannot afford to lose. The current President of the Association, has served for yonks on the board of directors of Access Bank. The voting solution providers in the rigged ballot that produced him, was a company in which the Bank had substantial shares. A candidate who is not in the good books of the Bank, will surely run into significant headwinds.

In a contest in which every major candidate is interested in getting ahead rather than ensuring a credible and level playing field, the concert of systemic vulnerabilities, external interests and personal ambition in a country with a huge appetite for impunity, have conspired to remove from the NBA’s ballot processes, the indeterminacy that should underpin a credible election. Now, leadership elections in the NBA are pre-determined, even before they take place not because there is no competition, but by a conspiracy of factors designed to compromise the legitimacy of any leadership, such that anyone who emerges leader of the Association, can only do so with the indelible stain of knowing that they were rigged into office.

A Crime that cannot be called by its name
In his infamous letter issued last month in June 2020 to the 1998 transitional President of the NBA, Chief T.J.O. Okpoko, SAN, senior Nigerian Lawyer, Chief Adegboyega Awomolo, himself also a SAN, appealed that “it will be a great failure of leadership (of the NBA) for the senior advocate (sic) to surrender leadership to the outer Bar, when there are willing and able senior advocates.” In an election in which two of the three aspirants for the top prize of the Presidency of the NBA are SANs, this was as close as anyone could come to openly advocating rigging the election à la carte, without calling the crime by its name. Barring last minute course correction by the Electoral Committee of the NBA (ECNBA), Chief Awomolo is likely to get his wish – the 2020 NBA elections, like the two before it in 2016 and 2018, has been set up to be rigged.

Chief Awomolo may have provided the motive or rationale for the rigging, but the mechanics for procuring it are in the hands of the ECNBA. By way of context, it is useful to explain that the NBA elections are digital. In their 2018 book, How to Rig an Election, Nic Cheeseman and Brian Klaas point out that “once upon a time, to do the dirty job of changing votes, you had to be present in the actual polling location. That is no longer true”. In an earlier piece of work on “Making Democracy Harder to Hack” published in the Michigan Journal of Law Reform in 2017, Scott Shackleford and his collaborators examined essential vulnerabilities that make rigging possible in digital democracy, focusing in particular, on three aspects: who can vote (voter rolls); how you vote (voting platforms) and counting the vote (vote computation). As will be shown shortly, all three vulnerabilities are deliberately built into the NBA’s electoral processes.

There are four vulnerabilities, which have been designed to guarantee rigging of the vote in the 2020 NBA election. These are voter rolls (register), portal integrity (or lack of it), voter verification opacity with prohibitive transaction cost, and lack of independence in the ECNBA. I will explain each of these briefly.
Voter Register: Voters in the NBA ballot, have to meet three conditions. First, they must be enrolled as Lawyers in Nigeria. This is easily confirmed from the Roll of Lawyers, kept with the Supreme Court. Every Lawyer on the Roll has a unique enrolment number, with which their enrolment can be verified.

Second, the person must have paid their annual practicing fees, by 31 March. The collecting bank for this, is Access Bank. It should be easy to verify those who paid, from the bank’s records or tellers. The only people who have access to this record, are the President of the NBA and those whom he wishes to. The current President of the NBA, himself with a long personal history of membership of the board of directors of Access Bank, cannot be in a haste to turn over this data trove to any person who – in his subjective view – cannot protect the profit interests of the bank.
Third, the voter must also have paid his or her Branch dues by 31 March. The NBA comprises 125 Branches. Each Branch manages its own processes, for collecting dues. These are not standardised. The list of eligible payees, is at the say so of the different Branch chairpersons.

Without access to the records of the bank or of the Branches, the register of voters lacks integrity and it shows. When the ECNBA issued the provisional register at the end of May 2020, it contained 21,067 names. By the time it issued what it called a final list one month later in June, it had ballooned by 186.65% to 39,321. Between the two lists, the number of voters in the Abuja Branch inexplicably grew from 2,861 to 5,799 names, a metastasis of over 202%.

A close reading of the list shows it contains multiple repetitions, omissions and even figments. By some estimates, the final list may have been padded by up to 25%. People who did not pay the practicing fees or Branch dues are there, while many who paid are not. Many Branches have no records of people, whom they claim as having paid Branch dues. There are credibly attested reports of chairpersons printing payment receipts, and back-dating fictional payments. One particular voter on the list goes by the incredible name of “Opening Balance”. The joke is that this voter has a twin, also a Lawyer called “Closing”. Their Dad, “Mr. Balance”, must be proud.

In Abuja, some Lawyers in the Directorate of Legal Services of the Nigerian Army, are threatening to drag a factional Secretary of one of the competing Branches of the Bar before the Legal Practitioners Disciplinary Committee (LPDC). They are angry that their names are missing, from what appears indisputably, to be back-dated records.
Portal Integrity: In 2018, the voting portal for the NBA election was from a compromised provider. In 2020, it is not clear who the provider is. The portal appears to be managed by the NBA itself. It is not clear who has built it. There is neither transparency to its provenance, nor verifiability or falsifiability to its operations and computations. As such, its integrity can neither be investigated, nor guaranteed.

Putative voters are required to key in the e-mail addresses with which they intend to vote, but there is no confirmation that the address they provide is actively cross-matched to and stored against their names. This is important. In 2018, three domains, Airmail, Firemail and Openmailbox, hosted at least 657 unregistered e-mail addresses used to record votes in favour of the candidate ultimately declared winner, in a ballot in which the margin of “victory” was a mere 89 votes. Unquestionably, the lack of portal integrity then made all the difference to the outcomes.

It should not be too difficult to engage external monitors for the purpose of ensuring platform integrity, or invite the leading campaigns to designate back-end agents to monitor and verify the integrity of the operations. The campaigns should demand this, and the ECNBA has a duty to invite or accede to it.

Verification Opacity and Prohibitive Transaction Cost: By meeting the three conditions for getting on the voters register, a potential voter does not earn the right to vote as such. She only qualifies for the privilege of verification. To do this, the voter is required to go to the portal and upload their details, including their qualifying certificate and an e-mail address, to which a password can be sent to them. The uploading can take up to three to four days. Many voters find this frustrating, and opt out. Passwords are generated by the portal and changed by it at will, without the agency of the voter.

The voting register does not contain the e-mail address of the voter, so it is impossible to verify in any forensic process whether an e-mail corresponds to any particular voter. On their part, the ECNBA and the NBA can put forward data-protection concerns for circumspection, with publishing of the e-mail addresses. In response, surely, that cannot be cited to justify creating deliberate balloting vulnerabilities. The opacity guarantees inflation of actual voting. In 2018, this was precisely the vulnerability that allowed for clusters of voting to happen using fake Firemail addresses, for instance, generated from one source. That is almost guaranteed to occur in 2020. The prohibitive transaction cost is engineered for targeted disenfranchisement of voting conurbations, seen as favourably disposed to unfavoured candidates.

Lack of Independence in ECNBA: Appointed to supervise the NBA election, the ECNBA lacks independent appropriations and operations. It has to function through the NBA Secretariat under the direction of the NBA President. Despite the existence of an ECNBA, aspirants and candidates continue(d) to receive letters from the NBA Secretariat and the NBA continues to be involved in directing essential aspects of the election value chain. The absence of institutional and process independence, could become a dent on the personal integrity of members of the ECNBA.
All this happened in 2016 and 2018. The litigation commenced in 2016 against the rigging of the NBA Presidency, was only concluded at the end of the tenure of the beneficiary in 2018. After the 2018 election, the Economic and Financial Crimes Commission (EFCC) and the State Security Service (SSS) instituted investigations into the rigging of the ballot for the NBA Presidency. Several staff of the NBA Secretariat, were arrested. In one case, a young mother on the staff of the NBA was arrested and detained for nearly two weeks. Her bosses were hardly perturbed.

The ECNBA has an opportunity even less than three weeks to the ballot, to avoid a repeat. It can easily infuse greater transparency into its operations, invite independent monitors to certify the integrity of its operations and accredit the campaigns for access to its records and back-end. These are not expensive steps. The campaigns should demand these. The only reason none may happen, is because the elections are not likely to be credible. I will be happy to be proved wrong, and to eat humble pie. I am also unable to understand how candidates willingly subscribe to a ballot with so many obvious vulnerabilities, that are clearly designed to compromise its integrity.

This, then, is the architecture of rigging that almost assuredly guarantees that Chief Awomolo and his gang of insecure, entitled antediluvians will get their wish. As I have said elsewhere, any system in which a minority feels entitled to rule over the majority has only one name: Apartheid. It should be resisted.
Dr Chidi Anselm Odinkalu, Co-Convenor of the Open Bar Initiative, writing in his personal capacity