By Ebuka Nwaeze

The Constitution Review Committee of the Nigerian Bar Association (NBA), under the Chairmanship of Chief Asama Kadiri SAN, proposed a number of amendments to the

amended Constitution of the NBA, to be considered for adoption at the Annual General Meeting of the NBA scheduled to hold on 31st August 2023.

The proposed amendments are a mix of necessary and not so necessary additions; dangerously ambitious and even out rightly in conflict with the Legal Practitioners Act.

Firstly, one of the major proposals is found in Part II of the proposed amended Constitution, relating to the election of the General Council of the Bar.

“(2) Composition of the Representatives of the Association in the General Council of the Bar

(i) The composition of twenty (20) members representing the Association in the General Council of the Bar shall be as follows:

(a) Nine (9) Senior Members of the Association each of whom shall not be less than 25 years post-call and who shall be elected at a national election of the Association for a term of two (2) years, equally from the three zones of the Association as set out in the Second Schedule to this Constitution and shall only be eligible for re-election at a national election for another term of two (2) years.

(b) Nine (9) Members of the Association each of whom shall not be less than 10 years post-call and who shall be elected at a national election of the Association for a term of two (2) years, equally from the three zones of the Association as set out in the Second Schedule to this Constitution and shall only be eligible for re-election at a national election for another term of two (2) years.

(c) The President of the Association only during the duration of his tenure as President of the Association.

(d) The immediate past President of the Association, as an Ex-Officio member.

(ii) Qualifications for Election into the General Council of the Bar

Any member of the Association seeking election into the General Council of the Bar shall be qualified for such election if he/she:

(a) Is a full member of the Association and has paid, as at the date of his/her nomination, his/her Bar Practicing Fees and Branch Dues as and when due, for three (3) consecutive years immediately preceding the year of the election, inclusive of the year of election.

(b) Is in private legal practice.

(c) Has at any time not less than two (2) years prior to his/her nomination been a member of the National Executive Council or served as a National Officer in the National Executive Committee or served as Chairman of a Branch or Chairman of a Section or Chairman of a Forum in the Association.”

Section 1(2) and (3) of the Legal Practitioners Act provide thus:

“(2) The Bar Council shall consist of –

(a) the Attorney-General of the Federation, who shall be the president of the Council;

(b) the Attorneys-General of the States; and

(c) twenty members of the Association.

(3) The persons mentioned in paragraph (c) of subsection (2) of this Section shall –

(a) be elected to serve on the bar council at elections in which all members of the Association are entitled to vote in such manner as may be provided by the Constitution of the Association; and

(b) hold office for such period as may be determined by or under that Constitution, and not less than seven of those persons shall be legal practitioners of not less than 10 years standing.”

It is clear that Section 1(3)(a) of the Legal Practitioners Act makes election mandatory for the twenty (20) members of the Association who shall be part of the General Council of the Bar and did not give room for the president of the Association to take a seat on the Council, as was done in Section 3(1)(i) of the same Legal Practitioners Act relating to the membership of the Body of Benchers by the President of the NBA. This is an exhibition of clear intention by the framers of the Act that the President of the Association should not be a member. The only discretion available for exercise in the Constitution is the determination of the procedure and length of term for the elected members of the Association in the General Council of the Bar. It is therefore a direct conflict for the Constitution to purport to make only eighteen (18) of the seats in the Council electable and then preserve two (2) as automatic seats for the incumbent President and the Immediate past President of NBA.

This proposal does not appear to have given adequate consideration for the provisions of the Section 7(1)ii of the same proposed Constitution which gives power to the General Council to take over the management of the affairs of the Association through its Committee set up for that purpose, in the event of unavoidable circumstance or emergency making it impossible to have election at the appropriate time or the National Executive Council is incapable of functioning. If the present proposal is adopted, it will create a fusion of roles. The implication is that in the event of the situation envisaged under Section 7(1)ii of the Proposed Constitution, which essentially means the breakdown of leadership in the Association, the selfsame failed President shall be part of the Council that will take up the baton to restore the Association. It does appear that the Constitution, which seeks to fall back on the General Council as a stabilizing organ, is unwittingly introducing an element of destabilization by making the failed leader a part of the body to clean up the mess of leadership, in situations where the crises or emergency contemplated Section 7(1)ii arose from leadership failure.

Again, the Legal Practitioners Act, by dint of the provision in Section 1(2)(a) thereof, makes the Attorney General of the Federation the President of the General Council of the Bar. How right does it sound, for the President of the Association to also be a member, considering the nature of the roles of the General Council?

Another curious proposal is the requirement that a previous membership of National Executive Council, for two years, is a qualifying factor for election into the General Council of the Bar. This is contained in the proposed Amended Constitution in Section 7(2)ii(c) thereof as follows:

“(ii) Qualifications for Election into the General Council of the Bar

Any member of the Association seeking election into the General Council of the Bar shall be qualified for such election if he/she:

(a) Is a full member of the Association and has paid, as at the date of his/her nomination, his/her Bar Practicing Fees and Branch Dues as and when due, for three (3) consecutive years immediately preceding the year of the election, inclusive of the year of election.

(b) Is in private legal practice.

(c) Has at any time not less than two (2) years prior to his/her nomination been a member of the National Executive Council or served as a National Officer in the National Executive Committee or served as Chairman of a Branch or Chairman of a Section or Chairman of a Forum in the Association.”

Why should the qualification for election into the General Council be for only former members of the National Executive Council? How does membership of NEC specially prepare a lawyer to be able to contribute to the General Council of the Bar? I am unable to see the special justification for such restriction.

Another major proposal for amendment is the introduction of the “succession by ascension” as proposed in Section 9 (1) of the proposed Constitution, for the office of President, as against direct voting for the seat of the President. The proposal excludes the President from direct election.

“9. National Executive Committee

(1) The National Executive Committee shall consist of the National Officers of the Association who, except for the President, shall be elected as provided under this Constitution for a single term of two years.”

What is the justification for this radical departure? The text of the proposal does not give any clue. It is only proposed in Section 9(3) that the immediate past Vice President shall ascend to the seat of the President. The words of the proposal are as follow:

“(3) With respect to the office of the President, is the immediate past Vice President of the Association. FOR THE AVOIDANCE OF DOUBT, ascension to the office of President of the Association shall be by succession, save for the circumstances listed in paragraph 4, part III of the Second Schedule to this Constitution. Provided that where the office of the Vice President is vacant at the time of succession, election may be held for the office of the President. This provision shall become operative after the 2024 elections of the Association.”

The question in the hearts and lips of every lawyer is: why the sudden change? The Constitution Review Committee, having not provided official explanations for the total departure from the status quo, leaves all and sundry to speculations.

Some persons have suggested that it is way of reducing the contention and humongous expenses generated by the race to the Presidency of the Bar. If that is the reason, does the proposal not merely transfer the contentions and expenses to the seat of the Vice President, the occupant of which will automatically ascend to the seat of President after two years? Given the experiences of recent past, where the two year tenures of National Officers are characterized by contestations between the President and his Vice or the General Secretary, will creating the office of the “President in waiting” not exacerbate that recurring problem? Will it not leave Association with two captains in the same boat, where the President in waiting will oppose or threaten to undo whatever the incumbent President is seeking to do?

One would have thought that the problem of undue expenses by aspirants during the campaign for the Presidency of the Association and indeed other positions in the National Executive Committee, would be curbed by the strengthening of the campaign rules and strict enforcement of existing campaign Rules, and not by creating the semblance of a “Chieftaincy Stool” in the leadership of the Association, which will compel an aspiring Legal Practitioner to abandon his/her law practice for a total of four years in order to be the President of the Bar.

These are important factors to be carefully adverted to by the Members in the consideration of the proposed amendments during this Annual General Meeting.

Nwaeze is a Senior Legal Practitioner, Former member of NBA National Executive Council and Current Member of the General Council of the Bar.

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