Proof of Penetration in a Rape Charge 

This article by Kayode Makanjuola considers the issue of the award of the rank of Senior Advocate of Nigeria (SAN) to Lawyers, pointing out that the current 2022 Guidelines superintending the process is not only invalid, but unjust and discriminatory against Academics. He takes a brief look at the updates of the categories of Award of King’s Counsel in the system of England and Wales which ours is based upon, and suggests that Nigeria reverts to the 2018 Guidelines for now, while the whole SAN Award process is reconsidered holistically 

Introduction

Thannual semi-ritual of awarding the rank of Senior Advocate of Nigeria in the legal profession, has seldom been free of controversy. The last one was not an exception; that time, though (like in the past few years) it was more about the perceived explosion in the number of awardees than for any other reason. I intend to buck the trend, by wondering why different rules and criteria apply to prospective awardees from the ranks of Academics than their courtroom counterparts or ‘Advocates’. What are those rules and are those differences legitimate, justifiable or defensible? Is it fair that Academic Lawyers are the ‘poor’ cousins of their courtroom colleagues, where it comes to consideration for the award? We shall presently attempt a few answers, but I warn you to be prepared to be startled, if not outrightly shocked!

Statutory Remit

The rank of Senior Advocate of Nigeria (SAN) is a prescription of the Legal Practitioners Act pursuant to which the Legal Practitioners Privileges Committee (LPPC) reviews applications for same, and confers it on those it deems to qualify based on criteria which it lays down in Guidelines  published from time to time. See Section 5(1) and (2) of the Legal Practitioners Act, the latter of which provides that: “A person shall not be conferred with the rank of Senior Advocate of Nigeria unless he has been qualified to practice as a legal practitioner for not less than ten years and has achieved distinction in the legal profession in such manner as the Committee may, from time to time, determine”.

The LPPC has, over the years, tweaked and re-tweaked those Guidelines – the present iteration of which is the 2022 Guidelines for the Conferment of the Rank of Senior Advocates of Nigeria and for Related Matters Issued under the hand of the immediate past Chief Justice of Nigeria (Hon. Justice Olukayode Ariwoola, Rtd), they took effect from the 13th day of October, 2022, and were applied to process the last two set of inductees into the rank. Of particular interest for our purposes in this regard, are the provisions of Paragraph 2(e), (f) and 9 of the Guidelines which stipulate as follows, respectively:

“(e) the award shall continue to be made primarily to Legal Practitioners who have distinguished themselves as advocates. The Committee may however, in exceptional cases, approve the award of the rank of Senior Advocate of Nigeria to members of the legal profession who have distinguished themselves as academics by making significant contributions to the practice of Law, through teaching, research and publications that have become major sources of reference by Judges, Legal Practitioners, Law Teachers and Law Students and

(f) The fulfilment of the stipulated criteria for eligibility and competence as defined and published from time to time by the Committee shall be the primary basis for the award of the rank”

(9) In any given year the Committee may in appropriate circumstances appoint not more than one academic who has distinguished himself and has made significant contribution to legal scholarship and Jurisprudence through teaching, research, published works and academic Leadership.

(2) To be eligible for appointment under this category, an applicant shall provide the Committee with at least 35 (thirty-five) copies of his published works, which shall include a minimum of-

(a) 5 (five) academic works;

(b) 20 (twenty) articles in peer reviewed journals; and

(c) 10 (ten) presentations at notable conferences and seminars.

(3) The applicant’s published works or books shall not be self-published but must have been published by a reputable publisher, whose reputation shall be assessed and determined by the Academic Sub-committee and in the case of articles, such articles must have been published in well respected Journals that are subjected to peer review.

(4) An applicant under this category must present-

(a) Detailed evidence of supervision of students, mentorship and leadership qualities along with his application;

(b) References from at least three Professors of Law (each with not less than 10 (ten) years’ experience as a Professor, who must also be resident in Nigeria) and 1 (one) of whom must be the applicant’s colleague or peer in the same field of law indicated by the applicant;

(c) evidence of full time teaching and research in a faculty of law in a reputable university, duly accredited by both the National Universities Commission and the Council of Legal Education, a recognised legal research institute or the Nigerian Law School for a period of at least 10 (ten) years immediately preceding the application 

(d) evidence of the applicant supervising postgraduate students; and

(e) evidence of being a full Professor in a faculty of law in a reputable university, duly accredited by both the National Universities Commission and the Council of Legal Education, a recognised legal research institute or the Nigerian Law School and must have been so for at least 2 (two) years preceding the application, Provided that this requirement will not apply to an applicant holding the position of the Director-General of the Nigerian Law School, where he is not a Professor of Law or has not been a Professor of Law for up to 2 (two) years”.

Problems Arising

So, what is the problem? Many, I assure you – as, indeed, ought to be self-evident from the foregoing provisions. While it is granted that the rank is a privilege (not a right), which is awarded at the sole discretion of the Committee, a lot however, can be said about perceived flaws in a process which regulates the affairs of supposed gentlemen of the noble profession of legal practitioners. To put it bluntly, are the criteria for the award of SAN to Academics needlessly more stringent than those for count-room advocates? Has the Privileges Committee set the bar unduly high in their case? Are the Guidelines themselves even valid at all? We shall get to this last poser shortly, but before then, there are yet more, as follows.

Do the provisions of Section 5(2) of the Legal Practitioners Act which, it can be recalled, empower the Privileges Committee to confer the award on the basis of applicants who have “achieved distinction in the legal profession in such manner as the committee may determine “authorise the Committee to segregate applicants on the basis of specialisation? Is that discrimination contemplated or intended by the National Assembly which conferred that power on the Committee? Is it reasonably necessary, or can it reasonably be inferred from those provisions? Does the mere fact that the award is a privilege justify the Committee in segregating legal practitioners into two apparently water-tight compartments for the purposes of the award? 

Is it fair to academic applicants that the Guidelines restrict the number that can be awarded to them in any given year to now only One out of the total number, while their court room colleagues go away with the rest? Previously, the number of Academics was in the range of 10% of the total number of awardees, give or take a couple more or less. Was that situation or scenario contemplated by the lawmakers when they enacted that provision in the Legal Practitioners Act? If it wasn’t, did the Committee overreach itself in prescribing that criterion? Did the Committee go too far? To borrow from an equitable maxim (which the Committee members are all too familiar with) is equality not equity? If the Committee has observed this injunction in the breach, would it be too harsh to admonish them thus: ‘Physician, heal thyself‘?! 

Are they not supposed to lead by example by practicing what they preach in terms of fairness, equity, even-handedness and justice? If Lawyers cannot be fair to each other, can they be fair to the larger society? Can they give what they do not have (nemo dat non habet)? Does charity not begin at home? I believe all these questions are pertinent to the status quo in terms of the discrimination (which I submit is totally unwarranted) in the criteria for the award of ‘Silk’ to so-called academic and non-academic or courtroom Lawyers. I believe that to the extent that it is heavily weighted in favour of the latter, it is inevitably skewed against the former – and, is, to that extent, unfair and unjustifiable and, therefore, needs to be urgently reviewed. 

The criteria should be more ‘academic’-friendly, balanced and less discriminatory. For a start, pegging a maximum number of such awardees from the academic community, should be completely done away with. No such limit ought to exist, otherwise it might prompt legitimate questions about its extension to more deserving factors such as gender and geographical spread, to cover applicants from parts of the country which have historically been disadvantaged. This might open the floodgates (if not quite a Pandora’s Box) of so-called Affirmative Action and similar considerations whose consequences are unpredictable. It might even revive the old debate about scraping the rank altogether – as in the case in other common law jurisdictions such as Ghana, the United States and India. No one is thinking of going that far. 

Validity of the 2022 Guidelines

Beyond all of that, however, of greater concern, to my mind, is the fundamental question of the validity, vel non, of the Guidelines themselves. By that, I simply mean that the fact that they bear the imprimatur of only the Chief Justice of Nigeria (who is admittedly the Chairman of the Privileges Committee), is problematic in a way which I shall presently explain. This is because, to the extent that the Committee consists of 15 members (vide Section 5(3) of the LPA), by virtue of Section 27(2) of the interpretation Act, they should have been executed under the hand of (to use the language of the latter statute), at least two members of the Committee. This was not the case, as the Guidelines clearly show on its face that only the Hon. Chief Justice Ariwoola executed it. I submit that, this suffices to invalidate the Guidelines. Will previous unsuccessful academic applicants for Silk be comforted by this reality? Who knows!

Conclusion 

The UK, on which Nigeria bases its legal system on, actually opened the status of King’s Counsel to Solicitors in 1995. As of 2020, the UK had 58 Solicitors who had been elevated to the rank. In 2021, 5 more Solicitors were elevated to the rank. Additionally, the rank has been extended “to those who have made a major contribution to the law of England and Wales, outside practice in the courts”. For example, Sir Robert Neill was nominated in 2024, for “his leadership of the Justice Select Committee, including his contributions in upholding the rule of law and as an advocate for the Judiciary and legal profession” (see the Gov.UK website). If this can be done in the UK, why do we in Nigeria, continue to not only discriminate against Academics, but attempt to make it impossible for them to attain the rank, while Advocates who openly plagiarise the briefs of arguments of others, contributing absolutely nothing to our jurisprudence or the development of the law, are elevated easily?

The 2022 Guidelines are not only invalid, seeing as they were executed by only Hon. Chief Justice Ariwoola, contrary to the aforementioned provisions, but, inequitable and unjust., in the interest of justice, it may therefore, be necessary for the LPPC to revert to the more equitable 2018 Guidelines for now, while a deeper consideration is given to the Guidelines. Now that a new Chief Justice in the person of Hon. Justice Kudirat Kekere-Ekun, GCON has assumed office, and also doubles as the Chairman of the LPPC, there is no better time for some positive action to be taken before the 2025 process commences. 

Even the 2023 Rules of Professional Conduct for Legal Practitioners is doubtful, given its flawed execution by only the former Attorney-General of the Federation, instead of at least two members of the General Council of the Bar as required by a community reading of Section 27(2) of the Interpretation Act and Section 1(2) of the Legal Practitioner’s Act. 

 Kayode Makanjuola, Jos