By Ajibola Oluyede
The Nigerian Bar Association seeks by its theme for its 2019 Conference to “face the future” in the areas of legal practice and education, rule of law and future of human rights, sectoral and structural transformation, diversity and inclusion for development, technological innovation and disruption.
The magnitude of the scope of issues this conference hopes to cover is indicative of the understanding by some of the leading practitioners in this country of the enormity of the problems that confront the future of the profession in Nigeria.
Therefore let it not turn out that the laudable ideas behind this impressive theme and its array of sub-topics will again be no more than a mere fleeting noise with no substantial impact.
To ensure that this conference is as impactful as it promises I believe that every member of the profession, who daily experiences, one way or the other, the impact of the inefficiencies, lack of vision, corruption, mediocrity and mendacity that have brought the profession to ground zero, should really place a demand upon those occupying positions of leadership to regard the profession as being in a state of emergency and therefore submit, at the end of this conference, a work plan consisting of deliberate steps to reposition the profession in Nigeria to become more relevant to the aspirations of our country, sub-region and continent at the very least.
I am persuaded that the only reason the profession is still marginally relevant to the development of this country today is because of the few developments we have seen in recent years, including the lessons learned from the International Bar Association, the NBA’s association with the American Bar Association Section on International Law, the creation of specialized practice sections and new interest from non litigation lawyers.
However, we must admit that a lot needs to be done if this country is to have a future for lawyers.
Today the pursuit of excellence that ought to be the hallmark of the profession has lost ground alarmingly to the pursuit of title and advantage.
The strictures of a corrupt and mediocre national system foisted on the country by its myopic military rulers continue to hamper the progress of the entire country, no less the legal profession.
We must accept that the future of Nigeria will determine the future of the Legal Profession in the country that the real showpiece of a vibrant and progressive legal profession is the Legal system it operates and the benefits this brings to the polity.
In “facing forward” then, it is important for our profession to deliberately remove the blinkers of narcissism and take a clear look around it at the environment in which it is operating in order to be sure that it is looking in the right direction when it says it is looking at the future.
Having done that, its should then “face forward” by preparing the profession through deliberate developmental steps to meet the challenges that the future will pose to the Country, its legal system and consequently the profession of lawyers that (in the order of Roscoe Pound) ought to repair, maintain, invent, innovate and implement measures to ensure the society does not experience a complete break down as current trends in our country seem to portend.
There is a lot to say and listen to about the need for the profession to “face forward” and no doubt the conference promises an array of capable speakers who will properly interrogate the theme.
However, I take the liberty of my freedom of speech to make this modest contribution to the discussion regarding the process of “facing forward” from the perspective of (i) ensuring we are actually looking in the right direction (ii) preparing for the challenges of the future.
FACING FORWARD INVOLVES ADJUSTING TO ENSURE A GOOD VIEW OF THE FUTURE.
Sometimes I have wondered if the Nigerian legal profession will be able to stand the test of time and some of my positions about certain aspects of the organization and management of the profession has stemmed from my conclusion that unless the profession repositions or reinvents itself, it will not be a relevant institution in the future, at least not in Nigeria as we know it today.
Fortunately we have been able to elect a new President of the NBA who has the capacity to see the profession holistically and therefore better apprehend what the future holds.
THE FUTURE IS EGALITARIANISM:
Disregard of the problems of ACCESS TO JUSTICE has been one of the major hindrances to the relevance of the profession.
Over 75% of Nigerians today find no relevance for lawyers in their lives. They see the profession as elitist with its formalities, rankings, and corruption.
Legal aid has failed to take off in this country in a manner that would be useful to the daily-oppressed peoples of Nigeria.
In any event even if it was available it would be ineffective since it could not provide the kind of service that would enable their cases get the traction and solution that they need in view of the scheduling problems faced by the courts.
Where a judge’s daily cause list is populated by over 30 cases on the average and the only hope any case has of being heard is if it involves a “Senior Advocate of Nigeria” (SAN), legal aid would not be of any benefit since only some of those aspiring for the SAN title find involvement in legal aid matters relevant.
Once they have the title they immediately become experts in areas that they consider more lucrative and forget the “expertise” they professed in order to procure the rank.
The rank of senior advocate in this sense (as in many other ways) poses an obstacle to the future of the profession in so far as these “leaders of the Bar” are satisfied with this state of affairs, which they believe is part of the glory of being a Senior Advocate of Nigeria.
Rather than waste a lot of effort trying to reform the unreformable process of appointing SANs we should find a solution to the scheduling problem in the courts. I believe that resolving the scheduling problems of the courts alone will go a long way in reducing the desperation fuelling the almost mindless pursuit of the title of SAN.
Ideally, no litigant should have to wait in court watching “African Magic” only to find at the end of the day that his case scheduled for hearing that day is so far down the list that the tired judge has to throw in the towel before that litigant’s case can be called.
I have appeared in various capacities in litigation in many other countries (including in England where our inspiration often comes from) and I find that every case is scheduled in such a way that you only have to show up in court at a particular time on a particular day and your case will be called and heard for the period of time allotted to it.
Why can’t we do that in Nigeria? Is it because of inadequate facilities, judges or just the pleasure of those who benefit from this gross inefficiency?
In some courts even the court clerks have made a business out of positioning cases on the “cause list”.
My junior colleagues in our firm report to me often that if one is not a senior advocate but one is willing to pay for it, one can have one’s case/s positioned higher up on the list so that, after the senior advocates have been served, one’s case may then stand a chance of being called before the poor judge’s energy fails him for the day. What a mess.
This scheduling mess makes a mockery of our justice administration system and further cements the mediocrity that the rank of SAN seems designed to institutionalize.
I am not criticizing SANs here I am criticizing the entire concept. I believe that it is anachronistic, unnecessary and unconstitutional.
It is a vestige of our colonial mentality and has served no useful purpose in the profession that I can point to other than creating a mythical class of lawyers who are, mainly undeservedly, regarded as the best in the profession.
Our constitution, a Republican one, finds no place for the stratification that the SAN scheme (an imported and adapted English Queens/Kings Counsel concept) seeks to establish amongst litigants in Nigeria.
Let me say now that I have known and still know many outstanding lawyers who have been or still are Senior Advocates of Nigeria. In the same way I have known and still know many outstanding lawyers who were never and still are not SANs.
However, the presence of many very able lawyers amongst the troop of SANs does not justify this retrogressive ranking of lawyers.
Why should anyone be a “Senior Advocate of Nigeria” just because he was appointed one by a group of people operating mainly on subjective parameters?
Even in England, from which we borrowed the idea, there are growing calls for its abolition and (in response to the growing criticism) the appointments to that rank have now been handed over to an independent body, which includes non-lawyers.
Furthermore, the criteria for appointment are now objective and relevant to the growth of the profession and its estimation amongst the consumers of its services in that country.
In Nigeria apart from the fundamental illegality of the scheme, we still have some gatekeepers who for no justifiable reason annually make a media event out of deciding that they only wish to appoint a certain number from those they have already adjudged as entitled. This breeds the corruption, ethnic jingoism, unethical lobbying and desperation that have bedeviled the scheme.
The gross repugnance of the scheme to good conscience in Nigeria is made more palpable by the mad rush for the title, which has now resulted in desperate seekers engaging or acquiescing in grave malpractices and corruption in a bid to acquire this “mythical rank” that (I am told) immediately transforms them into wealthy, successful lawyers.
The worthy wearers of that unnecessary title were already successful and wealthy from their legal practice only, before applying for the title.
I think a Senior Advocate of Nigeria should be one by reason of his successful career as an able litigator and not by appointment. What I mean by this is that we should follow the American example where notable lawyers are known by reputation and not by appointment to a rank.
The result of our own SAN scheme is that the pursuit of excellence has fallen by the wayside in the rat race by everyone to procure this title by hook or crook.
Lawyers coming into the profession today who wish to pursue careers as litigators are scarcely inspired by the ideal of becoming the best through hard work and focus, especially when they hear some of our SANs speak in court and wonder how they acquired that rank.
The impression many young lawyers have is that aspiring for excellence and real contribution to the growth of the law in Nigeria is only necessary after becoming a SAN.
Another untoward consequence of this unnecessary ranking is the growing migration of lawyers (who obtained their rank of SAN from a specialized practice in the provinces) to Lagos and Abuja to set up practices as specialists in areas they have never touched in their entire careers leading up to their appointment as SAN.
Unfortunately, the uninformed consumers of legal services, misled by the media into believing that the title of SAN is evidence of capacity to do all things, do commit their ventures into the hands of these lawyers to their chagrin and loss.
Perhaps a regulatory requirement for lawyers to mandatorily obtain professional indemnity insurance may soon cause some to close down such practices once serial shipwrecks cause their premiums to rise beyond their capacity to pay.
Perhaps, also, consumer protection activism against lawyers may also force lawyers to stick to what they actually know.
However, in the meantime let it be noted that the shipwreck of clients’ ventures by lawyers further weakens the capacity of Nigerian lawyers generally to become involved in the development of the economy as some of these badly burnt consumers often turn to foreign firms or proceed without the legal services they need.
There is no reason why these SANs from the hinterland cannot develop their practices in those locations and help the development of the area in which they had been based for over a decade at the minimum.
This migration of able hands from the hinterland cannot bode well for the future of the profession as I point out below when discussing the role of lawyers in the diversification of the Nigerian economy.
If the major relevance of a SAN to our legal system is the capacity it gives some lawyers to accumulate cases they cannot ably handle, then it is time we scrapped the entire scheme and allow the profession to throw up its best practitioners into positions of leadership in a more organic manner.
Now, the fault is not only with the Bar but also with the judiciary.
The military rulers during the dark ages of Nigerian history made a deliberate effort to phase out the best minds from the judiciary by appointing cronies and other unworthy persons as judges and into the administration of the judiciary, to the extent that at some point it was becoming increasingly difficult to find judges who understood what it really means to be a judge.
The quality of litigation practice in Nigeria is a reflection of the quality of the judges.
The predictability that aids the kind of legal advice by lawyers to their clients that would reduce resort to litigation is so sadly missing at every level of the courts.
This is certainly one of the major reasons for the many accusations of corruption against judges in Nigeria.
This is not to corroborate the many false accusations made against some judges and justices, especially by the EFCC, when these judges have dared to resist the pressure to give the kind of decisions the EFCC or its principals prefer.
I have, myself, been a victim of such false accusation of being in league with a former Chief Judge of the Federal High Court merely because I had brought a Fundamental Rights application before the judge for then Senate President Bukola Saraki, which the EFCC feared would be decided against them.
To pre-empt the decision of the judge and support an application for withdrawal of the case-file from the judge, after judgment had been reserved, a false report was published, using the notorious Sowore and his unethical Sahara Reporters (appropriately named as it is so bereft of scruples).
That report, like so many other false reports, is still in circulation till now though proven to be false.
This kind of politicization of the so-called “fight against corruption” is responsible for its current underperformance.
Nevertheless, I believe it will take us at least 25 years of deliberate steps to weed out unworthy persons from the judiciary, ensure that proper background checks are done on those seeking appointments to the bench and persuade the best minds to agree to take up the service before we can again have a judiciary that is respected around the world.
In the meantime I advise that the NBA commission an examination of the case scheduling problems of the judiciary with a view to improving access to justice for all.
DIVERSIFICATION OF THE NIGERIAN ECONOMY IS THE FUTURE:
The profession must make itself relevant to the DIVERSIFICATION OF THE NIGERIAN ECONOMY.
It is now quite clear that the Nigeria of the future with adequate infrastructure and a thriving world-leading economy cannot be built on the meager and uncertain earnings from our fossil deposits alone, which may not benefit the country beyond 2040.
We must take advantage of the other resources that our territory is blessed with.
The large expanse of arable land, which is justifiable basis for our claim to being able to feed Africa in a sustainable and environmentally responsible manner, sustainable development of our solid minerals sector, eco-compliant electricity generation and supply, are just a few of the economic sectors that need the participation of more lawyers.
Many more lawyers are needed in the provinces in regard to these activities to help the government with regulation, sourcing of developmental and venture capital, structuring of business relationships to enable successful ventures, dispute resolution and much more.
It is important for the NBA to deliberately help lawyers in the provinces to see this future and prepare for it. Legal education should therefore also be targeted at improving awareness amongst lawyers of potentials in these areas, developing the relevant legal knowledge and skills to service these needs and help develop the sectors.
The current emigration to Abuja and Lagos of good lawyers from the provinces is fueled by the notion that these are the places to make money once you have become a SAN. This is not good for the future of the profession.
In the first place the kind of work that these lawyers wish to take up in these bustling and overcrowded cities may not be work they are kitted for and often this may result in losses to the clients who, based on the lawyer’s title, believe he has the needed competence.
This lowers the profession in the estimation of such wounded clients and closes the door to actually competent Nigerian lawyers who can do the work.
POLITICAL RSTRUCTURING OF NIGERIA INTO A TRUE FEDERALISM IS THE FUTURE:
Nigerian lawyers need to be sensitive to the socio-political needs of the country, particularly the the urgent need to RESTRUCTURE NIGERIA to abate its ongoing partitioning.
Many of the ailments bedeviling our country today are outcomes of the long years of military rule including the Unitary Constitution we currently fraudulently call a Federal Constitution.
The failure of this country to rise to its potential of greatness is directly related to the concentration, by our constitution, of power in the hands of one man at the center: “The president of the federal Republic of Nigeria”.
Even if such a man was enlightened and progressive he would still not be able to bring this country to its optimum under a unitary structure, especially given the entrenched inefficiency and corruption in the “Federal” civil service, the scourge of poverty upon the polity, the inadequate financial resources available to governments and the focus on sharing revenues accruing mainly from crude oil sales.
The future of Nigerian lawyers is dependent upon the future of Nigeria. If we are not more sensitive to the happenings around us in this regard we may eventually find that we no longer have Nigerian lawyers.
Perhaps we may have Arewa lawyers, Odua Lawyers, Biafra Lawyers, etc, but certainly not a Nigerian Bar Association that we currently so cherish.
It is in the above context that I congratulate the leadership of the Nigerian Bar Association for this promising Conference which by its theme and subtopics is targeted, no doubt, at resolving important issues, including, I hope, those I have raised in this modest contribution.
I wish us all a successful conference.