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Agenda for new Nigerian Bar Association by Sam Amadi

Now that Nigerian lawyers have elected new executives for the Nigerian Bar Association, it is time to set an agenda for the once powerful and relevant professional association. An association of lawyers is bound to be influential considering how important law and lawyers are to the functioning of a modern state. But the truth is that in present times, the association of lawyers in Nigeria is nowhere near influential in the things that matter for the development and survival of the Nigerian state.

Considering the current challenges of development and stability that the nation is facing and the amount of knowledge and skills supposedly deposited in law as a scholarship and professional practice and in lawyers as craftsmen, it is really surprising that the NBA is not playing leading role in helping to design effective policies for Nigerian governments. NBA is not sought after by government policy institutions to shape public policy in the country for the simple reason that that body no longer leads. It is now the patrimony of senior lawyers who are focused on professional fees and professional clientele and not on public policy and the rule of law.

Thankfully there is an opportunity to change things by shaking them up. The result of the NBA general election has created a disruption in the sense that after more than 30 years we now have someone who is not a senior advocate as president of the NBA. This is a disruption considering the unwritten rule that has foisted on the bar some who were not ready for the job in the past. Disruptions are good for transformation because they could mark a new beginning. So, let us believe that the legal profession and its social life are at the threshold of a transformation. What agenda should drive the transformation of the legal profession and its social life?

The first agenda the new NBA leadership should pursue is the restoration of rule of law in Nigeria. This sounds silly if you consider that we proudly claim we are a democracy. But it is not that silly. The Nigerian state today has lost critical components of a rule of law state. There are many events that show we are already a lapsed rule of law state even before we really entered it. We may not have slid into authoritarian state, but we are fast exiting the rule of law state. The rulers of modern Nigeria since 1999, starting with that self-styled founder of modern Nigeria, former president Obasanjo, have been working hard to retard the movement to real democracy. The level of intolerance of political authorities to the exercise of the right of free expression and opinion is alarming. This has resulted in multiple long detentions of bloggers, journalists and activists by governments in the states and at the centre. Worse is that these governors and their enablers invoke charges of terrorism to stop inconvenient speech. The judges tiptoe in support; and the NBA plays dead-brain.

The height of the institutional failure in rule of law is the removal of the former Chief Justice of Nigeria. That incident rubbished Nigeria’s rule of law standing. It was a big shame that the regulator of judicial practice in Nigeria, the National Judicial Council, did not play a proactive role to dissuade government or those behind the manipulation of the machinery of the Code of Conduct from such open disregard for a basic pillar of rule of law: natural justice. It is unheard of that a head of the judiciary would be removed by ex parte order of an administrative tribunal without hearing. And the bar leadership was missing in action. That ugly incident revealed the lack of capacity of the bar leadership to influence Nigeria’s transformation into a stable rule of law state. This failure is saddening in the context of the legacy of past bar leaderships under military dictatorship.

My generation became lawyers towards the end of military rule in Nigeria. By 1992 when we were in law school, the battle to dislodge military dictatorship and return Nigeria to democracy was at its heights. The coalition that forced out the military included student leaders. Most of these leaders were lawyers. At the Nigerian law school in 1993 we were part of meetings with established lawyers to plan actions to fight for democracy, human rights and the rule of law. The leadership of the bar-official and unofficial- including the likes of Gani Fawehinmi, Aka-Bashorun, Femi Falana, and Priscilla Kuye, inspired and protected us. The judiciary had champions like Oputa, Esho, Bello and others, who were prepared to stand up for the independence of the judiciary and the rule of law. It was the worst of time on account of the brutality of military dictatorship. But it was also the best of time because of the courage, intelligence and public spiritedness of Nigerian lawyers. I cannot forget Chief Gani Fawehinmi always pointing us to the picture of the first Nigerian lawyer, Sapara Williams, and regaling his aphorism that “the lawyer lives for the direction of his society”. It was a time of boldness and commitment to rule of law and the independence of the judiciary by both the private and public bar.

That’s the first challenge of the new bar: to regain the confidence of the Nigerian people that the NBA can become the arrowhead of a new struggle to consolidate democracy based on the rule of law in its manifold articulations. This challenge becomes more urgent in the context of growing poverty and instability of the Nigerian society. Rule of law includes social and economic rights. The NBA has to show new vigor to defend the rights of the Nigerian people from political oppression and economic destitution. In the recent past, leadership of Nigerian lawyers has been busier grabbing at fat briefs and cozying up to the ruling party, whether the PDP or the APC, than looking out for violations of rule of law and independence of the judiciary.

The most distressing failure of the leadership of Nigerian lawyers has been its silence in the face of brutal suppression of the basic freedom of Nigerian citizens by political authorities, especially state governors. We have never seen it in this wise even during military rule. The rate at which governors of states- Kaduna, Cross Rivers, Abia, Imo, Akwa Ibom- have arrested, detained and prosecuted political opponents on treason and hate speech charges for disagreeable speech is scandalous even for official police states. The courts played supporting role in the desecration of criminal justice. We expected to hear the voice of the NBA against the governors and to encourage complicit judges to defend their oaths. But we heard only echoes of indifference. It is distressing but remarkable that as lawyers celebrate new leaders, one of them is languishing in prison in Abia State at the instance of the state governor without due process. A critic of the Kano State government, Didiayata, has been missing for 12 months from his home in Kaduna State without official confirmation of his whereabout.

This is the democracy in which the new leadership of the NBA will take office. Clearly, the bar as constituted lacks the institutional integrity and intellectual resources to face this challenge. The new president and other executives, in spite of their campaign rhetoric, may not have the sufficient mental energies, values and ideas to mobilize a defeated and, one will say, conscripted legal profession to the heights of the likes of Aka-Bashorun and Priscilla Kuye. But if there is a will there is a way. They can learn quick and leverage upon the civic resources in the Nigerian society to once again lead the Nigerian society to fight and win the war against a relapse into authoritarianism, which is a present danger. They can learn fast and develop the commitment to speak truth to political power and restate the classical statement of Lord Atkin, that whether in war or peacetime, the law speaks the same language: the language of liberty.

Another challenge that flows from the rule of law challenge is to how to create a policy environment that enables sustainable economic development and political stability that foster economic and political freedoms for Nigerians. Nigeria is a failing state in every dispassionate consideration of the features of state failure. Before COVID-19, the Nigerian economy was already going downhill on account of the weak policymaking and poor management. The failure to move from consumption to production and to truly diversify the economy through the displacement of the political economy of rents and privileges meant that we would be devasted by the headwinds of oil price slump and COVID-19. Evidence shows that countries that are scrapping through the public health and economic devastations of COVID-19 are either social democracies (like the Scandinavians) or developmental states (like South Korea, Germany, Hong Kong, Singapore). Both Joseph Stiglitz and Francis Fukuyama have made this point in both Foreign Policy and Prospect magazines. Nigeria is a peripheral neoliberal economy with neither a strong private sector not a coherent public sector. We are just a consumer economy with no industrial policy that can build buffers to mitigate the present threats.

The sad thing though is that a bar association with the ideas and insights of law and development would have helped a lot to strengthen economic development policymaking and management. An association of lawyers should be next to association of economists in assisting government develop and manage policies that will drive sustainable economic development. The diminution of the NBA is pictured in its total irrelevance in the policymaking environment of all governments since 1999. Olisa Agbakoba as president understood the importance of the NBA in inserting itself into the policymaking machine of the government through epistemic authority. He commissioned me in 2009 to review the federal government economic policy framework in the context of law and development scholarship. That engagement resulted in “The Rule of Law and Economic Development: Fundamental Insights and Institutional Design for Economic Development in Nigeria”. That document has been NBA’s only significant policy offering to the crisis of economic and social development in Nigeria.

The new leadership at the NBA should take up the challenge of making the NBA relevant to economic and social policymaking. It is a good thing that the president had been chair of the section on business law. So, he could build from that experience. But the truth is that the quality of the NBA sections is still low, compared with what they need to be to influence policymaking at the highest level. We need to see more policy briefs from the sections rather than jamboree-type seminars and conferences. The sections should be able to publish internationally accredited journals on leading areas like law and economics, law and development and administrative law and governance.

Again, Olisa Agbakoba should take the honor of establishing the Section on Public Interest and Development Law (SPIDEL), a very important section for the actualization of the two agenda. I was privileged to be an inaugural member of the council of SPIDEL under Ghazama SAN. But today, SPIDEL is a shadow of the original vision. The executive should depart from the sterile conservatism of deferring to Senior Advocates in constituting these sections even when these senior lawyers have no requisite disciplinary or leadership competencies to successfully manage the sections. Section leadership is not about excelling in litigation. This is about great understanding of the policy aspects of law and proven leadership acumen. Admittedly, many of our bright senior advocates are poorly equipped in that wise.

The NBA is a no longer an attractive proposition in the struggle for democracy and development in Nigeria. Not many Nigerians are bothered about what goes on with it, especially since its leadership becomes plaintiffs in criminal proceedings on corruption charges. It has lost both integrity and intelligence as an organisation. The new leadership has a difficult task to redirect the association and reinvest it with credibility and relevance. It can succeed if it is both humble and courageous. Humble to admit that it may not have what it takes to solve these problems but can always source from the rank of lawyers; courageous to disrupt the reign of sterile conservatism in the leadership of Nigerian lawyers.

Welcome the ‘new’ bar.

Amadi, a lawyer writes from Abuja.