Can a lawyer called to the Bar opt out of the Nigerian Bar Association? Senior Advocate of Nigeria (SAN) Mr. Femi Falana considers this and more in this article.
Securing the future of the NBA
A few years ago, a group of Nigerian lawyers decided to revive the African Bar Association notwithstanding that the body had dissolved into the Pan African Lawyers Union in 2002. Some top officials of the PALU had wanted me to sue the leaders of the AFBA in a Nigerian court.
But I turned down the request and made them to realise that the action would not succeed in view of article 10 of the African Charter on Human and People’s Rights which has guaranteed the human right of all Africans to freedom of association.
They became persuaded when I referred them to the case of the Civil Liberties Organisation (in respect of the Nigerian Bar Association) v Nigeria (1995) 186 wherein the African Commission on Human and People’s Rights held that “Freedom of association as an individual right and is first and foremost a duty of the state to abstain from interfering with the free formation of associations.
There must be a general capacity for citizens to join, without state interference, associations in order to attain various ends.
It is submitted that under the current human rights regime in Africa, the compulsory membership of any lawyers’ body is an anathema.
If the NBA continues to operate outside the ambit of its aims and objects, lawyers have the constitutional liberty to form alternative national law societies.
For instance, article 3 (9) & (11) of NBA Constitution provides that the NBA shall ensure the encouragement and protection of the right of access to courts at reasonably affordable fees and of representation by counsel before courts and tribunals as well as the promotion and protection of the principles of the rule of law and respect for the enforcement of fundamental rights, human rights, and people’s rights.
To achieve the aforementioned objectives, the first Vice President of the NBA is saddled with the responsibility to coordinate the activities of the branches including their human rights programmes while each of the 125 branches of the NBA has a human rights committee headed by the vice chair of the branch.
This means that the NBA is the most territorially spread non-governmental human rights body in the country.
But due to the persistent failure of the NBA to galvanise its members to address the mounting abuse of human rights in the country, a number of public spirited lawyers have established human rights bodies or join existing ones to defend the human rights of the Nigerian people under the rule of law.
Such bodies which are usually led by lawyers include the Socio Economic and Accountability Rights Project (SERAP), Access to Justice, Committee for the Defence of Human Rights (CDHR), Civil Liberties Organisation (CLO), National Association of Democratic Lawyers, Human Rights Defenders, Women Empowerment and Legal Aid (WELA), Network of Human Rights Lawyers etc. Without any input from the NBA, some of these bodies successfully campaigned for the amendment of the Fundamental Rights Enforcement Procedure Rules 2009, National Human Rights Act and the Legal Aid Council Act which have facilitated the enforcement of fundamental rights and enhancement of access to justice for poor and vulnerable citizens.
In addition, these human rights groups have, through human rights cases filed by them convinced the Supreme Court to jettison the colonial doctrine of locus standi and endorse public interest litigation.
The point that I am labouring to make is that the NBA is becoming increasingly irrelevant in the defence and promotion of human rights of the Nigerian people. Even the NBA no longer takes up cases of lawyers that are arrested and detained illegally by the police and other security agencies.
For instance, the NBA has not joined the campaign for the release of Mr. Emperor Ogbonna who has been detained since March 2020 in defiance of three orders of the Federal High Court directing the SSS to restore his liberty.
Therefore, the NBA cannot muster the moral will or courage to restrain lawyers from forming or joining other societies of lawyers for the protection of human rights and promotion of popular causes that will benefit the Nigerian people.
It will be recalled that the Ibrahim Babangida junta had taken advantage of the 1992 internal crisis of the NBA over election to take over the body.
Thus, pursuant to the Legal Practitioners (Amendment) Decree No 21 of 1994, a caretaker committee was imposed on the NBA.
The Ikeja branch of the NBA approached the Lagos State High Court to enforce the fundamental rights of the members to freedom of association.
The order of interim injunction granted by the High Court to restrain the junta and members of the caretaker committee from interfering in the internal affairs of the NBA was challenged at the Court of Appeal in the case of Williams v Akintunde (1998) 3 NWLR (Pt 381) 101. In its epochal judgment the special panel of five Justices of the Court of Appeal unanimously dismissed the appeal and set aside section 23A of the decree which had not only ousted the jurisdiction of the trial court but also criminalise the filing of any action connected to or arising from the management of the NBA.
In his contribution to the leading judgment of the Court Pats-Acholonu JCA (as he then was) said that the military junta might have enacted the decree to “restore sanity and I dare say unbridled and frightening incipience and un-lawyer-like behaviour that seemed then to envelope and overwhelm the once proud professional association.”
However, his Lordship cautioned the legal profession not to wait for military dictators “to put its house in order.”
No doubt, the NBA took the advice of his Lordship by putting its house in order.
Regrettably, the house has been turned upside down, once again, as its foundation is under serious attack from a cabal of bar leaders who have institutionalised the biennial imposition of national officers through e-fraud elections.
Even branch elections of the NBA are also manipulated with impunity by the same reactionary forces.
Hence, many branches of the NBA are managed, from time to time, by caretaker committees imposed on them by national officers whose own mandate is questionable.
If the NBA does not arrest the ugly development in a decisive manner, as soon as possible, there is going to be an implosion with dire consequences.
Therefore, the lawyers who are desirous to have a united bar should be prepared to ensure that the elections of the officers of the NBA are conducted in a credible and transparent manner while the affairs of the body are managed in a democratic manner.
Otherwise, the balkanisation of the NBA is a matter of time.
After all, it has just been confirmed that only 18,000 out of the over 200,000 lawyers on the roll of legal practitioners in Nigeria participated in the just concluded controversial 2020 NBA election.
The implication of the increasing loss of interest in the affairs of the NBA by a large majority of lawyers ought to engage the attention of those who are desirous to have a united bar.
They owe it a duty to make conscious efforts to restore sanity in the bar and reposition the NBA to defend the rights of the Nigerian people which are under renewed assault under a civilian regime whose sheer contempt for the rule of law is legendary.
Lawyers who have insisted on the compulsory membership of the NBA may wish to consider the implications of certain provisions of the CAMA 2020 on freedom of association in the country.
By virtue of section 839 (1) of the law, the Corporate Affairs Commission may by “order suspend the trustees of an association and appoint an interim manager or managers to manage the affairs of an association where it reasonably believes that — (a) there is or has been any misconduct or mismanagement in the administration of the association; (b) it is necessary or desirable for the purpose of — (i) protecting the property of the association, (ii) securing a proper application for the property of the association towards achieving the objects of the association, the purposes of the association of that property or of the property coming to the association, (iii) public interest; or (c) the affairs of the association are being run fraudulently.”
It is hoped that the axe of the CAC will not fall on the NBA since it is not prepared to stop the misconduct of conducting fraudulent elections.
It is sad to note that after 21 years of civil rule members of the legal profession are yet to demilitarise their psyche.
Hence, it is being argued that every lawyer must belong to the NBA willy nilly.
Even when Nigeria was under the jackboots and civil liberties were put in abeyance some of us defended the fundamental right of Nigerian lawyers to exercise their freedom of association enshrined in article 10 of the African Charter on Human and People’s Rights.
It ought to be pointed out that the regimentation of lawyers espoused by some judges and lawyers is reminiscent of military rule.
It cannot be justified in a democratic society.
In Eperokun v University of Lagos (1986) 4 NWLR (Pt 34) 162, Irikefe CJN (as he then was) urged Nigerians to appreciate that “…constitutionally entrenched provisions, particularly those safeguarding individual rights, should not, save in a fascist system, be lightly trampled upon.”
Finally, let it be made abundantly clear that no group of Nigerians can be compelled to belong to or remain in any association by force. In other words, the compulsory membership of the NBA for the purpose of legal practice has not obliterated or extinguished the fundamental right of lawyers to form or belong to other societies of lawyers.
However, since the NBA has apparently lost focus and relevance in the country, the progressive extradition of Nigerian lawyers should continue to defend human rights and other public interests with renewed vigour, courage and commitment.
They should continue to remember the apt words of Sapara Williams that “A lawyer lives for the direction of his people and the advancement of the cause of his country.”