Hanatu and Ifunanya: Two of a Kind?

Introduction

This might come across a bit like like comparing grapes and apples, but on a closer look, the similarities between the Minister of Arts & Culture, Ms Hanatu Musawa, and the so-called ‘baddest Lawyer’, Ifunanya Excel Grant, should become manifest. To start with, both of them are women; and they are both Lawyers. They are also presently in the eye of a media storm, having become enmeshed in unrelated (avoidable?) controversies. However, there the similarity ends. This is because different reasons are behind the negative publicity which has surrounded them in the past few weeks – and which rages unabated. Do they deserve the bad press? Are they ‘guilty’ as charged? Let us find out, starting with ‘the baddest’ of them all!

Ifunanya: Innocent Self-expression or Conduct Unbecoming of a Lawyer?

Ever since the internet was flooded with the images of a semi-nude Ifunanya Excel Grant (are the last two really her names?), apparently smoking what looked like a narcotic (marijuana?), the leadership of the NBA (and not a few of its rank-and-file) have been up in arms against what they perceive either as professional misconduct, or conduct unbecoming of a Lawyer. The former has gone as far as, initiating formal disciplinary proceedings against her. There’s been no shortage of opinions on the controversy: either for or against her.

On her own part, she has denied any wrong-doing – disowning many of the online posts as fictitious and not bearing her imprimatur. Her affirmation of several alternative personas other than her being a counsel (model, musician, artist, etc.) has not assuaged the naysayers who have continued to bay for her ‘blood’. Which side is correct? Has she broken any diktat, either professionally or otherwise? Can the NBA make the charge against her stick? 

Did She Break Any Rule?

This is the most important question. The extant code of Lawyers in Nigeria is the Legal Practitioners Rules of Professional Conduct, 2023. Of its 78 provisions, none seems to be more relevant to the case of Ifunanya than its very first one: Rule 1. It provides, inter alia, that:

“a Lawyer shall . . . not engage in any conduct which is unbecoming of a legal practitioner”.

Accordingly, the real question is whether appearing in public or sharing photographic images wearing bikinis or semi-nude (not to mention brandishing or even appearing to consume a ‘smoky’ substance) amounts to conduct which is unbecoming of a legal practitioner.

The Answer

I’m afraid, unless the rules are re-written, in the form which they are presently couched, it would be a stretch to accommodate Ifunanya’s presumed images within the spirit (if not the letters) of the RPC. Quite simply, there appears to be no precedent (at least locally) for sanctioning a Lawyer for such behaviour. It would have been different were she charged with acting (or expressing herself) in that way, in the course of performing her professional duties as a Lawyer. That would have been a no-brainer: she would have been guilty as charged. Instances of such behaviour are well documented. See, for instance RE G. IDOWU: A LEGAL PRACTITIONER (1971) 1 All NLR 126; and OKIKE v LPDC (2005) 15 NWLR (Pt 949) 471). 

However, as a learned colleague, Sylvester Udemezue correctly pointed out (see “Meaning and Scope of Infamous Conduct in a Professional Respect” published in the Nigerian Lawyer blog on June, 5th 2020), not every malfeasance committed by a Lawyer in the course of acting for a client is “infamous conduct”. He cites as an example of unprofessional conduct which is neither “disgraceful nor dishonourable,” but is merely against established norms and traditions of the profession, a Lawyer using the word, “Barrister” as a title honorific before his name (See NBA v OFOMATA (2017) 5 NWLR (Pt. 1557) 128 at 133). Another example he cites, is a Lawyer standing surety for his client; although “unprofessional,” it does not constitute “infamous conduct in a professional respect”.

He cites the contrasting examples of infamous conduct by a Lawyer in a professional respect, the following: stealing; converting or misappropriating a client’s money or property; defrauding a client; divulging privileged professional communication; acting in spite existence of conflict of interest; colluding with a client to commit illegality or fraud or perjury, or forgery; stealing another Lawyer’s client; a law lecturer participating or engaging in exam malpractice, a prosecuting legal officer colluding with the defence to destroy evidence or otherwise to pervert the course of justice; a Lawyer bribing the Judge or other court official to have judgement in his client’s favour; a Lawyer communicating privately with the Judge in a case he is handling, etc. Unfortunately (or fortunately, depending on whose side you are on), that is not the case with Ifunanya.

It is important to remember that self-expression is a civil liberty (a fundamental right) guaranteed under Section 39(1) of the 1999 Constitution, in the following words: “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference”. Constitutional provisions are required to be interpreted liberally: NAFIU RABIU v KANO STATE (1980) LLJR – SC and BRONIK MORORS v WEMA BANK (1983) JELR 46432 (SC); (1985) 35 NCLR 296.

Without appearing to endorse criminality or immorality/indecency, I believe it is not the intention of the framers of our Constitution to sanction a person who chooses to express his or herself by posing in public, dressed in a bikini while appearing to consume what is no more than a smoke-emitting substance – even if that substance suspiciously looks like a narcotic. It must be emphasised that the key words are “appearing” or “apparently”. Appearances can be deceiving – especially in this day of photoshopped digital images and artificial intelligence, where virtually anything is possible online.

By way of comparison, it must be said that Ifunanya’s daring-do pales besides the mass brawl which erupted at the end of a novelty football match between two branches of the NBA, during it’s just concluded Annual General Conference – which this paper correctly described as a show of shame. This is fast becoming a disturbing trend, following two incidents a few years ago when two male and female members of the Bar separately came to blows – one in open court, the other otherwise, but, one of whom was, in the all-female encounter, heavily pregnant. The pugilists, on each occasion, got away with no more than a rap on their already bruised wrists.

Ifunanya’s is a test case. How we all emerge from it, remains to be seen.

Minister Musawa

As previously stated, Ms Hanatu Musawa was sworn in a few weeks ago as the Minister of Arts in President Tinubu’s cabinet. Hardly had she settled down, that news emerged that she is presently undergoing the supposedly compulsory one year National Youth Service Corps programme (NYSC). Since then, many have challenged the legitimacy of her appointment on a variety of grounds, mainly the NYSC Act (Sections 2 & 13) and it’s by-laws (Section 4(9) of 2011), which supposedly prescribe successful completion of the programme, as a condition for employment in the public service. Others (notably human rights activist, Femi Falana, SAN), have cited at least one judicial decision (MODIBBO v USMAN (2019) LPELR-59095(SC) as establishing a precedent that completion of the NYSC programme is a condition precedent to vying for or holding elective office. Relying on constitutional provisions, they have extrapolated that decision to Hanatu’s case, by arguing that the same qualifications are applicable to the appointment of  Ministers as election  into the House of Representatives and the Senate. Once again, I believe this might be a case of comparing grapes with apples. The following are my reasons. 

That decision is not apposite; it is only applicable to contestants for elective office under the Constitution. A case is only authority for what it actually decided and it is inappropriate to cite it in circumstances which might seem logically to flow from it: O’ODUA INVESTMENT v TALABI (1997) LLJR-SC. However, assuming without conceding, that MODIBBO’S case (Supra) is applicable to Minister Musawa, to the extent that it was decided without reference to the provisions of Articles 13 and 15 of the African Charter (which confer the rights to work and to participate in government, respectively), it was rendered per incuriam. See OPARA v SPDCN (2015) 14 NWLR Pt. 1479 pg. 307. This is because, with the exception of the Constitution, the African Charter is superior to all municipal laws such as the NYSC Act and, of course, the by-laws made thereunder: IGP v ANPP (2007) 18 NWLR pt. 1066 pg. 457, C.A; and ABACHA v FAWEHINMI (2000) 6 NWLR pt. 660 pg. 228.

This view is without prejudice to Section 315 of the Constitution. This is because the NYSC Act is no more integral to the Constitution by virtue of those provisions, than the Land Use Act. Accordingly, the Apex Court has not hesitated to strike down parts of the latter law, notwithstanding it’s purported ‘assimilation’ into the Constitution vide Section 315(5) thereof. See NKWOCHA v GOV. OF IMO STATE (1984) SCNLR 634.