Preamble:
At the Special Delegates Conference of the Nigerian Bar Association (NBA) in Abuja in July 2015, the NBA Draft Constitution and the Uniform Bye Laws were overwhelmingly adopted and the provision for Universal Suffrage and Electronic Voting (e-voting) were thereby also adopted for the conduct of subsequent NBA National Elections as those provisions were embedded therein. The Constitution has been further amended but the provision has remained extant. Some leading and forward looking Branches of the NBA like the Lagos branch have also adopted e-voting.
However e-voting has had many challenges in successive NBA Elections, chief of which has been accusations of vote manipulations. The 2020 Election followed a similar pattern. Unlike the past though, the current beneficiary of that Election has taken the bull by the horns and is willing to cleanse the Augean stables. He has therefore set up an Electoral Reform and Audit Committee to undertake that task.
The Elections:
Upon the adoption of the NBA Constitution in 2015, the NBA followed through and on the 30th and 31st of July, 2016, our collective and long held dream of universal suffrage and e-voting (though some have attempted to draw a fine line between e-voting and i-voting) became a reality. The process leading to the vote itself was not smooth. Practitioners experienced many challenges ranging from missing names on the voters register, difficulty in updating their details and to accreditation blues but the voting itself was smooth, simple and seamless.
In the end, the Election result was disputed by the losing candidate, Chief Joe Kyari Gadzama, SAN and it subsequently became a subject of legal challenge in the Court of Law. The case was bogged down in Court for two years before it was eventually dismissed at a time the tenure of the candidate returned elected, Abubakar Balarabe Mahmoud, SAN had ended and another President in Paul Usoro, SAN elected to succeed him.
The latter Election was very acrimonious. Right from the campaigns which at first had Afam Osigwe, Prof. Ernest Ojukwu, SAN, Chief Arthur Obi Okafor, SAN and Paul Usoro, SAN in a four horse race before Afam Osigwe was disqualified was ran in such an unhealthy manner that it always seemed there would be a lot of falling out in the aftermath of the election and so it proved. We went through a very difficult and divisive process and came out bitterly divided and angry. Like the one before it, the election results were disputed and Chief Arthur Obi Okafor, SAN headed for the Courts. As it is typical of the judicial system in Nigeria many times, the challenge became an exercise in futility by the time Mr. Olumide Akpata was elected President of the NBA two years down the line.
These matters remained unresolved and the wounds of those still smarting from defeats which they considered unjust in manipulated elections in 2016 and 2018 were largely left untended. These grievances remained when we again embarked on the recent exercise that produced the incumbent President.
The Road to Reform:
You will recall that many practitioners had become disillusioned with the erstwhile NBA electoral delegates process long before the election of 2014 in Abuja. Matters came to a head at that point and it became obvious that the NBA will have to swim or sink with the electoral choice it makes going forward.
I had written in strong and certain terms when we returned to Lagos after the Abuja elections in July of 2014 in a long piece titled “NBA Elections: The Imperatives for Reform”. I had argued then that it had become clear that the reform of the NBA electoral process is a moral, constitutional, political, social and economic imperative if the NBA must remake itself anew and move forward.
I then identified broad reasons why the reform should be undertaken then to allow universal suffrage and e-voting. I exhaustively and comprehensively analysed those reasons. The broad reasons I canvassed under 10 sub-heads then were:
The Right to be Heard, Freedom and Liberty of Choice, Guarantee of Voters Right, Fairness and Transparency, Cost and Expense, Risk and Insecurity, Corruption and Indiscipline, Zoning (The Elephant in the Room), Nigerian Women and Politics, and Reform the Electoral Process Now.
You can access the full article on my blogsite: random-stephens.blogspot.com under the blogname ‘random musings’.
The remarkable thing at the time is that the NBA Lagos branch championed the call for reforms and in the Draft Constitution and Uniform Bye Laws the Branch sent to the NBA, it amongst other things canvassed universal suffrage and e-voting. Many Leaders of the Branch fought long and hard for the process to be so reformed. Many Bar Leaders and branches across the country equally pitched tent and fought for the reforms to allow universal suffrage and e-voting.
Perhaps even more remarkable is that the NBA Leadership led by Austin Alegeh, SAN who was the chief beneficiary of the “unjust old order” was willing and committed to undertaking the reforms and it did. That exemplary show of leadership is what is called for again at this time. Mr. Olumide Akpata must be willing to see this through.
A Second Wave of Reforms:
The time is auspicious and the second wave of reform of the Electoral process of the NBA must be undertaken now if our divided house will not fall. This is why it is such a good thing that the President, Mr. Olumide Akpata in his inaugural speech immediately set up a Committee to undertake an Audit of all past Elections conducted since e-voting was introduced into the Electoral process and the lexicon of the election process of the NBA.
The membership of the Committee fills one with enthusiasm as the head of the Committee, Ayodele Richard Akintunde, SAN’s antecedents in the legal profession and his many years of conducting free, fair and transparent elections at the NBA Lagos branch validates the President’s choice as the right one. Equally of gravitas is the fact that the Chairman is not known to be partisan and is not beholden to any of the many power blocks – some past and present Leaders, tribal, ethnic and other forums – that have proliferated in the NBA in recent years.
It would have been irresponsible all be it convenient to wish away the challenges faced in this election. The NBA has indeed chosen the path of moral rectitude by acknowledging the shortcomings of this process and the need to improve on it. I do not for once believe that these problems are intractable. They could be made minimal if we are unable to eradicate them all as it is often impossible to solve all problems militating against any human endeavour in one fell swoop. If we do the right things now and are committed to the long and tortuous course of reforms then in a short while we shall reap the bounteous benefits.
The Terms of Reference for Reforms:
The Terms of Reference of the Committee includes:
a. To audit the elections of National Officers of the NBA of 2016, 2018 and 2020 and recommend reforms (if any) of the electoral process;
b. To receive Memoranda and carry out extensive consultations across all demographics of the NBA on the experiences of the 2016, 2018 and 2020 NBA Elections in order to make recommendations that will strengthen the conduct of transparent, free, fair and credible elections of National Officers of the NBA;
c. To review post-election audit reports (if any) for the 2016, 2018 and 2020 election of National Officers of the NBA by the Election Committee of the Nigerian Bar Association (“ECNBA”) or any other body appointed to conduct the post-election Audits;
d. To identify any issues, failures or irregularities with the process and conduct of the 2016, 2018 and 2020 elections of the National Officers of the NBA and make recommendations;
e. To study the provisions of the NBA Constitution (as amended) on elections of National Officers of the NBA and propose amendments as may be deemed necessary;
f. To identify international best practices on conduct of elections of Professional Associations similar to the NBA that will impact positively on the quality and credibility of elections of the National Officers of the NBA;
g. To review the efficiency of the National Secretariat in assisting the Election Committee of the Nigerian Bar Association (ECNBA) and make recommendations to strengthen the role of the ECNBA and its independence in dealing directly with branches on data collation and management with minimal interference of the National Secretariat of the NBA;
h. To review and recommend ways to strengthen data collation, storage and management for elections;
i. To work on all such areas that would improve Data Collection of Members of the NBA and Electronic Voting to guarantee free, fair, transparent and credible elections;
j. To do anything that the Committee may consider relevant or necessary in connection with these terms of reference; and
k. To make recommendations deemed necessary for the realization of these terms of reference.
The Trajectory of Reforms:
Thank God we have now largely learnt what is wrong after three successive disputed elections. We hitherto accepted that a new way must have its new troubles. But now we must rise up to the task of reform and the only way to go is to address those troubles headlong, audit, reform and get better.
I. Time: If only the ECNBA had more time to prepare for NBA elections! I believe that if successive ECNBA’s were given more time, say two whole years at least, to prepare for Elections, then some of the problems associated with our elections are easily surmountable. The NBA has to now move on to a Standing and Permanent Election Committee of NEC which works always to prepare and improve on our elections year in, year out. The membership can be a revolving one which ensures that the Committee is always constituted at all times. The current system where every NBA President sets up an Adhoc Committee to conduct one off elections and many times not early enough with little or no time to even adhere to a simple electoral time-table recommended by the Constitution is untenable and already a fundamental breach of the Electoral process.
One innocuous example would suffice! The NBA Constitution requires the ECNBA to publish the voters register at least 28 days before the Elections. I do not recall that this has ever been done for reasons alluded to in the preceding paragraph. Worse still, NEC may not have had the time to meet again to abridge time within which to display the voters register and thus bring the exercise within the purview of the Constitution.
Even when I thought one would suffice, I am inclined to put a few more examples on the front burner to aid the Committee’s work.
The Constitution provides that the ECNBA shall determine the qualification of candidates from whom nominations are received at least one month before the Election. Has the ECNBA ever done this within the Constitutional time frame? In 2020, no candidate knew his or her fate until a few days to Election day.
The Constitution provides that the Elections should be held in July of the election year. Have we always adhered to this? I know for a fact that the 2018 Elections were held in August. Surely the ECNBA will know why that was so!
The Constitution also provides that the List of candidates must be published at least 21 days before the Election. Do we usually do this within the prescribed period?
In the midst of the cacophony, an important Constitutional provision has been lost. This is the provision that requires the ECNBA to give to the Branches Preliminary Notice of the forthcoming Elections at least 70 days before the Elections, communicating to them what positions are to be filled by each zone not less than 42 days before the date of the Elections! I will not be shocked if even past Presidents do not remember this particular Constitutional provision.
You will do well to note in this stead that the ECNBA met with the candidates only once, a few days before the 2020 Election and the inability of the ECNBA to meet with the candidates as often as was necessary was put down to time constraint yet again.
The Audit and Reform Committee must consider and legislate for this. Though we may not be able to foresee and legislate for every exigency but some stare us in the face benignly and I believe the issues adumbrated above are such and the Reform and Audit Committee must help us find a solution to this perennial problem of time constraint at our Elections.
II. Process: Universal suffrage and e-voting has now been called into question unfortunately. Are we to stick with this and or twist and turn? There is no denying the gains of universal suffrage. It was what we wanted and canvassed for. It is right that we now have it.
Nonetheless some Leaders of the Bar have questioned the utility of the process in producing the right Leadership for the NBA in contradistinction to the hitherto Delegates System before 2015. They have challenged the NBA to show them what has changed apart from the great opportunity post 2015 affords all Lawyers to vote and have a direct bearing in the direction of the affairs of their Association. They contend that the many ills associated with the old delegates system are still with us and have even exacerbated in some cases.
The pre-election provisions of the NBA Constitution are almost impossible to adhere to by any candidate. If those were to be enforced as part of the process, almost all candidates will be disqualified. Costs and expense has skyrocketed. Miles and miles of travel with the attendant cost and risk has increased. Where candidates could narrow down the field, identify areas of campaign and strength to focus on in the past, they can no longer do so today.
Candidates for the prime offices of President and General Secretary must now of necessity reach all the urban, provincial and far flung branches across the country and woo voters with all manner of incentives which in the end amount to some gut wrenching and astronomical figure. The Constitution says candidates cannot visit branches to canvass for votes but they brazenly do so and label it consulting, felicitating and standing in solidarity with other Bar Leaders and Branches.
In the same vein, the Constitution says not to sponsor Branch events but who cares? The Constitution forbids publication of campaign materials except those handed over to the ECNBA for publication in the NBA Election website but the social media, and even the conventional press is awash with subtle and brazen campaign publications throughout the Election season.
The Constitution prohibits receipt of financial assistance or inducement from certain quarters but we hear that States and Corporation treasuries are usually opened to some anointed candidates. At Election time, endorsements – genuine and otherwise – keeps coming in from cultural and or ethnic affiliations and partisan branches of the NBA and other power blocks in the profession.
What was envisaged to improve on and cut down the cost of the delegate system has more than defeated that purpose many times over. With the unverified expenses of the candidates in the last elections bandied about one shudders to think what would have been were there no Covid – 19 scourge to limit travel time, visit to far flung places and the attendant sponsorship of Branch events and sundry parties and campaign push the candidates would have engaged in still if there were no Covid – 19.
It is therefore imperative for the Committee to consider this and make recommendations to tweak and or if considered desirable as it is to allow the process continue to subsist at our collective peril.
III. Platform: This is akin to the Elephant in the room. The major bottlenecks the Elections have experienced have had to do with choice of service providers and platforms to power the e-voting. Where you could say the contracted service provider, Law Pavillion made the best of a novel situation and we could largely live with the outcome in 2016, the 2018 Election in comparison was as chaotic as they come.
From the onset, there were issues of adoption by a regional forum in the NBA which did not go down well with some. The disqualification of a young and popular candidate in the race for President also became a divisive issue. All these and many more allowed tension to build up to the time of the election proper itself.
The Election platform adopted and the service provider chosen was to be the biggest point of contention yet. The chosen company, Chams Plc, featured prominently in accusations of malfeasance and conflict of interest. The then President of the Bar, A.B. Mahmoud, SAN, had to doubly assure and reassure candidates that the process was not orchestrated and or skewed in favour of anyone. Some of the candidates reluctantly accepted to work with Chams Plc when the process was unbundled to allow another service provider, Crenet Lab Limited handle an aspect of the Election – verification of eligible voters details independently of Chams Plc – to ensure transparency. Finally an Election Audit was promised and Lawyers went to the polls.
What then followed was an Election marred in controversy, accusation and counter accusation of Electoral heist. One of the candidates, Chief Arthur Obi Okafor, SAN sought redress in Court and amongst others sought an Order of Court to compel an Electoral Audit as promised by the NBA President in the run up to the polls and which he believed ought to have been carried out before the results were announced. The learned SAN was in Court for two years and as has become predictable the matter suffered the same fate as many before it. The Presidency of the beneficiary of that Election had run its course and another President, Mr. Olumide Akpata had been elected.
The third of the successive Elections which produced the current President of the Bar, the 30th President and first to be chosen from the Outer Bar in a very long while was both heralded and met with opposition from some members of the Bar and vehemently so by one of the candidates, Dele Adesina, SAN who protested not only the results of the Election but the process leading to the voting itself and the emergence of the new President.
Dele Adesina, SAN made his case so elegantly and passionately to the NBA, the ECNBA and the Trustees of the Nigerian Bar Association. When none of these exalted bodies could help him, he left matters as they were perhaps to God Almighty who will judge all humanity in the end and administer a just recompense that many will never find in this world. But unlike the others before him who felt aggrieved with the outcome of the Elections in which they participated in and were declared unreturned, he declined to engage the judicial process which he knew from bitter experience of the other two before him will most likely be another exercise in futility.
What stands out here is that the three Candidates for President – Dele Adesina, SAN, Babatunde Ajibade, SAN and Mr. Olumide Akpata – in the run up to the 2020 Elections had raised serious doubts over the readiness of the ECNBA, the integrity of the platform and the service provider they had chosen to conduct the Election. Those concerns were again not adequately addressed. Maybe if the ECNBA had more time as already canvassed above to demonstrate to the candidates and the teeming members of the NBA its readiness and the integrity of the platform they had settled on, things might have turned out differently.
Be that as it may, the pertinent question still ought to be posed! Can we divorce universal suffrage from electronic voting? I think the mistake we often make is to think that in our peculiar circumstances, they are one and the same. But the reality is that they are not intertwined. We can have one without the other. We can have a hybrid even, if we so desire. We can for example allow all Lawyers vote manually in their various Branches with the results collated real time and sent to the NBA. Good a thing, the Constitution already allows manual voting at the Branches where it is not feasible to conduct e-voting. That way, we would minimize the risk of anyone interfering with, manipulating and or compromising the Electronic platform the NBA utilizes at Elections.
The Reform and Audit Committee must therefore see this as a critical core of whatever recommendations for reform it makes at the conclusion of its Assignment.
IV. The Electoral Committee of the Nigerian Bar Association (ECNBA): Who are the people who conduct our Elections? How are they appointed? What are their usual terms of reference? Is the appointing authority’s discretion unfettered? What is the role of NEC in this?
I have read the NBA Constitution many times over and it does not appear there is a clear guideline on how to zero in on the many issues that may be considered in making appointments into such an important Committee of the NBA. The President of the NBA usually exercise wide and far reaching powers in this regard even though the Constitution does not give him the power to do so in the first place.
By the Second Schedule to the Constitution, the responsibility to appoint members of the ECNBA resides with NEC but you would find that successive Presidents arrogated these powers to themselves. The only quarter they give when they make the appointments is to come to NEC for confirmation if they bothered. These appointments already made but disguised as nominees are almost always confirmed.
The Committee ought to now consider this and make clear recommendations on how members of the ECNBA will be appointed. Is it plausible for example that the President proposes nominees that NEC rejects and go on to present a List of nominees entirely different from the one proposed by the President?
This is important because a President who is beholden to a particular power base or who himself is interested in a particular kind of President emerging will leverage on his power of appointment of members of the ECNBA to constitute a Committee which will do his bidding or those of the powers to whom he is subservient.
V. Audit: In my books, this is the most critical aspect of the Committee’s work. No audit was conducted in 2016 because it was not contemplated at the time and as such was not factored into the Electoral process. In 2018, an Audit was specifically promised perhaps not sincerely as latter events would suggest. Consequently nothing came of it. In 2020, Dele Adesina, SAN demanded an investigation which in essence amounted to an audit into the Elections and even called for its cancellation as he believed that the Election was manipulated at several levels to ensure a pre-determined outcome. This was not done.
This is what Mr. Olumide Akpata in a show of strength and exemplary leadership has ordered and the Committee has set to work on its mandate. But really what does it mean to audit the last three Elections? What is intended? What outcomes can we reasonably expect from the audit? What can the recommendations be? Can the Committee find fault and recommend sanctions? Will it be just another soothing balm exercise that in the final analysis adds no real substance to our search for Electoral reform and a closure to our biennial rancorous Elections?
These and many other questions agitate the minds of members of the Nigerian Bar Association and even the larger public which looks upon the Association as a beacon of hope in an otherwise gloomy Nigerian world.
If this current Audit is to make sense, it must be far reaching in its probe, recommendations and the course charted for future action. If the Committee like many others across the Country before it only finds that the Elections were not perfect but we have to live with it and hope for a better future it would not have advanced our cause beyond where we were in 2016 and still are.
We expect the Audit Committee to be able to determine if any of the Elections it is auditing were manipulated, who manipulated it and who the intended beneficiaries were. We expect the Committee to prescribe commensurate and deterrent sanctions in the event they make such a determination. We expect the Committee to make clear, workable recommendations on the course the NBA Elections should take henceforth which as a matter of necessity must include provision for an Audit of future Elections before results are announced.
Conclusion:
If we do not already know, the last Election and the events leading to the last Annual General Conference (AGC), the fall out that followed, the events leading to the emergence of an nNBA, the vociferous ‘call out’ of the NBA by ‘Egbe Amofin’ over the Elections, the rude jolt of the amendment of the Rules of Professional Conduct and sundry issues now amply and palpably demonstrates to us that there is trouble in the house our very noble forebears built.
If we are not already in dire straits, may we never get there! The work of this Committee is such an important one that if done right will greatly help us reverse course, aid us and this administration on the part to realizing the ideals of an NBA that truly works for all in these times and in times to come.
Stephen Onimisi Obajaja Esq., a Partner at the Lagos Law Firm of Fountain Court Partners was Secretary of the Nigerian Bar Association, Lagos Branch from 2015 – 2017.
