On 26th September, 2017 the A.B. Mahmud SAN, OON led exco of the NBA constituted a 13 member committee to review the 2015 NBA Constitution.
The Terms of Reference of the Committee are as follows:
- To thoroughly study the NBA Constitution with a view to identifying areas that require amendment and propose appropriate amendment that will promote the objectives of the Bar.
- To review the NBA Constitution and receive memoranda from members on all aspect of the NBA Constitution that require amendment.
- To propose appropriate amendment in the areas pointed out in the President’s speech where the Constitution is lacking
- To review and propose amendments as may be deemed necessary to the NBA Constitution.
- To propose amendment(s) that in the opinion of the Committee would bring the NBA Constitution in line with best international practice(s).
- To prepare a draft NBA Constitution for presentation at NEC at the Extra- Ordinary General Meeting within six (6) weeks of inauguration.
- To consult Bar leaders across the Country on its Terms of Reference and reflect inputs.
- To do any other activity (ies) incidental to the above terms of Reference.
Besides the above terms of reference, the NBA President in his speech during the inauguration of the committee stated as follows;that one of the areas that require total constitutional overhaul and which the Committee should pay close attention to is in respect of leadership succession in NBA, and the mode of electing NBA National Officers.
According to him, an extensive study of different models and best practices across diverse jurisdictions and countries revealed that no Bar Association or Law Society used the current NBA model of leadership succession and election of National Officers.
The NBA President said that even amongst other professional Associations and Trade Union in Nigeria like ICAN, Nigerian Medical Association, Nigerian Society of Engineers, and NLC, Mahmud believes their leadership succession model is far more advanced and in line with international best practices compared with NBA.
“The current NBA leadership succession and election model are expensive, primordial, obsolete, risky, and may throw up mediocrity” Mahmud posited.
He maintained that the existing system does not ensure that the best candidate emerges, as it ensures the primacy of politics over professionalism.
In view of this, he urged the Committee to interrogate and review the current electoral system with a view to recommending reforms.
This challenge among others, Mahmud noted, relate to the governance structure of NBA.
He however stated that in view of current realities, emerging trends, and challenges facing the Bar association, the NBA President said it has become imperative to amend or review the current NBA constitution.
From the above and going by the emphasis placed by the President in his speech, it can be safely deduced that one of the sole purpose for the review of the constitution is the issue of succession and mode of elections.
By item 6 on the terms of reference which is ” To prepare a draft NBA Constitution for presentation at NEC at the Extra- Ordinary General Meeting within six (6) weeks of inauguration” salient issues arises for determination in this unbridled attempt to re-write the 2015 constitution and some of which are as follows:
- In veiw of the extant provision of Section 20(1) of the constitution, can this adminstration sincerely embark on this review exercise to its logical conclusion by the calling of an Extra- Ordinary General Meeting? I posit this question as Section 20(1) states as follows” this constitution shall not be amended except at an Annual General Meeting of the Association by 2/3 majority of those present and entitled to vote, provided that 2/3 of the branches of the Association are represented AND provided that at least sixty(60) days notice of the proposed amendment shall have been given to the General Secretary who shall have circulated same to delegates at least thirty(30) days before the proposed amendment is tabled for discussion at the Annual General Meeting “ what is at this point germane to note is the fact that the operative word in this section is SHALL. For the purpose of emphasis I will again repeat the first arm of the section to wit” this Constitution shall not be amended except at an Annual General Meeting of the association… ” it is unambiguous from this provision that it is only the Annual General Meeting of the association that can amend the Constitution. Section 10(1) of the Constitution provides as follows ” There shall be a general meeting held annually called Annual General Meeting. Any other meeting shall be called an Extra-Ordinary General Meeting” Section 10(2) provides that” The Annual General Meeting shall hold on such dates and place as may be determined by the National Executive Committee ” However Section 11(1) provides that” The Annual General Conference shall hold on such dates as may be determined by the National Executive Committee provided that the Annual General Meeting shall be held in course of the Annual General Conference ” Applying the sui generis rule of interpretation on the above cited provisions of the constitution, the power of the National Executive Committee to fix a date and place for an Annual General Meeting as contained in Section 10(2) is subject to the provision of Section 11(1) so that any date and place fixed for an Annual General Meeting must be within the time of the holding of an Annual General Conference. It must be noted that an Extra- Ordinary General Meeting of the association cannot be called to amend, review and rewrite the constitution as the only body empowered to carry out that sacred duty of constitutional amendment or review is the Annual General Meeting. Any attempt by the present regime to call for an Extra-Ordinary General Meeting for the purpose of amending or reviewing the constitution is illegal and will be null and void abinitio.
- Can this adventure of constitutional amendment or review be achieved under the present regime of A.B. Mahmud SAN OON? As aforestated, the NBA by its Constitution holds its Annual General Meeting in August during the Annual General Conference of the association. In its two year tenure, this regime held its first Annual General Meeting on thursday, 24th August 2017 at Landmark Event Centre, Lagos. The second and last Annual General Meeting of this regime will hold in August, 2018 on a date and place to be determined by NEC. Can that meeting holistically and practically consider and approve any review/amendment to the Constitution in view of the fact that a new regime will be waiting in the wings to be sworn in a day after the AGM. Furthermore, the present régime will be burdened with the task of giving account of its stewardship for the two years it held forth at the NBA House, will this burden be also saddled with the task of a constitutional amendment or review at the same place, time and date?
- Considering the grave concern raised by the President in his speech on succession and mode of elections in the NBA which the President described as expensive, primordial, obsolete, risky and may throw up mediocrity, can this committee headed by the indefatigable Mallam Yusuf O. Ali SAN fulfill the daunting task of reviewing the constitution to allay the fears and frustrations of the President on the twin issues of succession and mode of elections expressed by him within the limits of his administration in order to have the elections of his dreams or is he setting the framework for the review to be actualized by the incoming administration? In my attempt to answer the above question to determine the ambit of the mindset of the President it is pertinent to again look at the time frame given to the committee as contained in item 6 on the terms of reference. The committee is mandated and expected to present a Draft NBA constitution to an Extra- Ordinary General Meeting of the Bar six weeks after its inauguration. Jerry Foder in his book Language of Thought stated thus ” spoken and written language derive intentionality and meaning from an internal language encoded in the mind” When you juxtapose the time frame given to the committee, the concerns expressed by the President and the mandate to the committee to present the Draft Constitution to the Extra- Ordinary General Meeting, it becomes elementary to decipher that the President’s intention is to review the constitution for the sole purpose of using same to conduct the next general elections of the NBA. The question is can this be feasible considering the provisions of Sections 10(1)(2) ,11(1) and 20(1) of the 2015 NBA Constitution earlier cited and discussed above. What must be taken home by all concerned members of the NBA is that this administration had once ridden roughshod on the constitution as evident at the NEC meeting held in Aba, Abia State where a decision of the Annual General Meeting held at the 2016 Port Harcourt AGC on the leadership tussle in Abuja Branch of the NBA was overturned by the National Executive Committee Meeting in Aba. Inasmuch as i do not subscribe to the decision of the Benin NEC and it’s confirmation by the AGM in Port Harcourt on the leadership question in Abuja Branch, you do not use an illegality to cure a bad decision. What the A.B. Mahmud administration should have done was to wait for the Lagos AGM to cure that wrong decision but impatience took the better part of it. The result of that unconstitutional act is the litany of court actions bedeviling, bewitching and embarrassing the NBA today. Have this administration learnt any lessons from that made in Aba misadventure? the answer is definitely NO and that is prompting a second and more bestial attack on the constitution and our collective sensibilities. Anyone who daydreams that the Bar as it is today will fold its hands in utter frustration and allow a second blitzkrieg on the constitution should better have a rethink because I see a clear and present danger. I advise the President to thread cautiously on this matter as the landmines that will bring the NBA and his administration to its nunc dimitis are being unwittingly planted, programmed and ready to be detonated by him. Let the wise counsel of Ahitophel prevail.
S.Long William, Former Secretary NBA PH
Former Secretary EBF
Chairman EBF ICT Committee