The date for the election of a fresh set of national officers to take over the running of the affairs of the Nigerian Bar Association is almost upon us. By now, the administration of A.B. Mahmoud, SAN should be preparing its endcue. Expectedly, activities on the lawyers political landscape are at fever pitch, albeit one hears constantly monotonous warning refrain: “ban on campaign has not been officially lifted”. I wonder whether there was a ban in the first place to warrant the avowal. Anyway, that’s a discussion for another day. But whether the “ban” is lifted or not, the blind can see and the deaf can hear that all the candidates have in several clever ways, intensified campaigns and solicitation for votes. So true that since men have learnt to shoot without missing, birds have learnt to fly without perching!
Of all the positions in contest in the forthcoming elections, none has generated so much debate and diatribe as that of the President. As at the last count, four contenders, Paul Usoro, SAN, Prof. Ernest Ojukwu, SAN, Arthur Obi Okafor, SAN and Mazi Afam Osigwe, a former General Secretary of the NBA, have been screened by the Electoral Committee (ECNBA) constituted by the incumbent President. Headed by Professor Auwalu Hamish Yadudu, a Professor of Law and former Legal Adviser to the late Head of State, General Sani Abacha, the ECNBA in a publication dated 13th June, 2018 and titled “SCREENING RESULT SHEET OF THE 2018 NBA NATIONAL OFFICERS ELECTIONS” cleared all but one of the four contenders for the office of President. It was indicated that Mazi Afam Osigwe was “not cleared”. The following day, the ECNBA addressed a letter to Mr. Osigwe, conveying the outcome of the screening exercise to him as follows:
“RE: DETERMINATION ON QUALIFICATION TO CONTEST FOR NATIONAL OFFICE
The above subject refers;
With the formal opening of nomination application by the ECNBA on the 12th day of June, 2018, the Committee regrets to inform you that your screening for qualification to contest for the national office of President was unsuccessful for the reasons stated hereunder:
1. There is no evidence before the Committee to show that you have paid your Annual Dues and other financial obligations to Nnewi Branch as and when due for at least 3 years preceding this years (sic) election.
2. That there is no satisfactory proof of your relocation to Nnewi Branch to accommodate you within the window of exception created by the proviso to Paragraph 4(1) of the Third Schedule to the NBA Constitution, 2015 as amended.
3. Payment of 2016 and 2017 Branch Annual Dues cannot be verified”
The ECNBA’s decision above has sparked off a raging debate amongst members of the NBA. Supporters of Mr. Afam Osigwe are all over the media space contending the injustice, incorrectness or wrongness of the electoral umpire decision and calling for immediate his reinstatement immediately. Quite significantly, supporters of the other “cleared” candidates are also outdoing themselves in the social media over this development.
There are several aspects from which one can view this decision and it really is not important whether the decision is ultimately reversed following the appeal which has now been lodged by Mr. Afam Osigwe.
In some quarters, it is being contended that the decision is a product of the political intrigues of the NBA. Afam is the youngest of the four contenders. He is equally the only one that is not a Senior Advocate of Nigeria. Apart from a few occasions which can be counted on the mutilated fingers of a leper, the NBA the administration and control of the affairs of the NBA has been held by the members of the exclusive club of Senior Advocates of Nigeria. There is no written law anywhere suggesting that only the SANs can be President of the NBA, but over the years, members appear to have ceded or yielded that position to the learned Silks. Thus the emergence of Mr. Afam Osigwe as a contender for the office is viewed in some quarters as an affront and a challenge to the old order. Some members have also make the age of Mr. Osigwe an issue. At 46 years, he is considered as being “too young to run” even when the constitutional age to contest election to the office of President in Nigeria has now been sliced down significantly to 30 years! It has even been suggested in some quarters that the decision of the ECNBA is only but an affirmation of the resolve and determination of a ‘powerful’ bloc to stop the young Afam Osigwe from running for election. This much was alluded to in the letter written to the ECNBA on 14th June, 2018 in response to his disqualification.
Now given the clear provisions of the NBA Constitution and the facts which are now in the public domain on this issue, can one really say that the ECNBA got its decision spot on? This write will attempt to provide answer to this catholic question by an examination of the relevant provisions of the NBA constitution and a juxtaposition of same with the available factual trajectory of the issue. In doing so, I will preface my intervention by seeking to know whether the extant or operative Constitution of the NBA, i.e. the Nigerian Bar Association Constitution, 2015 has been amended. This question has become pertinent in view of the reference to an “NBA Constitution as amended” in the ECNBA’s letter to Mr. Afam Osigwe and which imply that its decision was impelled by the provisions of the said amended Constitution! Truth is the ECNBA is sorely wrong on this. What is correct is that the NBA Constitution remains in the form in which it was adopted on 27th August, 2015. It has not been subjected to any form of amendment since its adoption. Therefore, it is misleading, outrightly erroneous and totally preposterous for the ECNBA to predicate its triadic reasons for the disqualification of Mr. Afam Osigwe on the provisions of a non-existing constitution. It is not only embarrassing, it is scandalous. On this score alone, the decision of the ECNBA is vitiated and should not be allowed to stand. But I will not dwell much on this.
The provisions of the NBA Constitution, 2015 which are relevant to this discussion are sections 3, 8(4), 9(2) and Paragraph 2.6 of the Second Schedule thereof. For ease of reference, the said provisions are hereunder reproduced:
Section 3
“Qualification to hold a National Office
A member of the Association shall be qualified to hold a National Office if:
a. He/she is a full member of the Association and has paid, as at the date of his/her nomination, his/her practicing fees and Branch Dues, as and when due, for three (3) consecutive years inclusive of the year of election.
b. He/she is in private legal practice;
c. He/she has at any time prior to his/her nomination been a member of the National
Executive Committee or Branch Executive Committee as indicated hereunder:
(i) For contestants for the offices of President, First Vice President, Second Vice President and Third Vice President – for not less than two(2) years at the National Executive Committee.
8 (4) – Disqualification from Holding any National Office
A member shall not be qualified to hold any national office in the Association if during the election campaigns:
(a) There is evidence that he/she is sponsored by or has received any financial assistance or inducement from any government of the Federation, or members, organizations or bodies corporate;
(b) He/she sponsors or is associated with sponsoring a Newspaper or Magazine article or any electronic broadcast, vilifying other candidates or extoling a candidate’s virtues;
(c) Any member who has held an elective office as a national officer for two (2) terms shall not be eligible to contest for a national office until at least ten (10) years after his/her last term of office.
Section 9 (2) – ELECTION INTO NATIONAL OFFICES
The procedure for the appointment of the members of the Electoral Committee, nomination of candidates for election, withdrawal of nominations and disqualification from election shall be as set out in the Second Schedule.
SECOND SCHEDULE – ELECTIONS
PARAGRAPH 2.6 – DISQUALIFICATION FOR ELECTION
Subject to the provisions of this constitution, a member shall not be eligible for election as a National Officer if:
(a) He/she is not a Nigerian Citizen;
(b) He/she is a member of a political party in Nigeria.
(c) He/she has been adjudged bankrupt or has made a composition or arrangement with his creditors;
(d) He/she is adjudged mentally unfit to take up position by a competent medical authority;
(e) He/she has been convicted of a crime or has been indicted by the disciplinary committee for an alleged offence or professional impropriety”
(Underlining supplied for emphasis)
From a global scanning of the entirety of the 2015 NBA Constitution, the foregoing are the only provisions which are useful in the determination of the vexed issue of “qualification” to or “disqualification” from holding any national office in the NBA. Thus the next germane question is which of these provisions did the nomination of Mazi Afam Osigwe infracted upon to necessitate his disqualification? Although the ECNBA was not kind enough to expressly refer to any section, it is not difficult to deduce that at the heart of the issue is the application or proper interpretation of the provision of section 3(a) of the constitution in which the requirement of payment of practicing fees and branch dues as at when due for 3 consecutive years was enshrined.
It is a notorious fact that Mr. Afam Osigwe was a member of the Abuja branch in 2016 and 2017. He was a member of that branch when he contested election as General Secretary of the NBA and remained so even after leaving office. At least we now know that Mr. Osigwe “relocated” or transferred his membership to the Nnewi branch in January this year. This fact has been corroborated by the Nnewi branch leadership who equally confirmed that Mr. Osigwe paid his branch dues and settled all other financial obligations to the branch for the year 2018 as and when due. In my view, therefore, once Mr. Osigwe has submitted to the ECNBA proof of payment of both his practicing fees and branch dues (Abuja for 2015, 2016 and 2017) and Nnewi (for 2018), the stipulation of law in section 3(a) is satisfied. To require him to produce proof of payment of annual dues in respect of Nnewi branch for three years is, with respect, absurd and unjust.
There is nothing in section 3(a) of the constitution which makes it mandatory for a member to belong to a particular branch for 3 years consecutively before he can qualify to contest a national office. Indeed, any interpretation along this line will do violence to and stifle other provisions of the Constitution and negate its general principle or objective. Quite significantly, section 13(4) makes it possible for a member who changes his place of practice or residence to also change his branch as he desires.
The Committee equally considered Mr. Afam Osigwe ineligible to run for the national office he seeks because he did not provide satisfactory proof of his relocation to the Nnewi branch. Accordingly, he could not be accommodated within the exception to paragraph 4(1) of the Third Schedule to the NBA amended Constitution. Clearly, the ECNBA must have set an unbelievable standard to be satisfied by anyone wishing to convince it that he/she has relocated or changed his membership from one branch to another. Otherwise it is curious that after submitting a letter of good standing duly issued by the leadership of the Nnewi branch in accordance with the provision of paragraph 4 of the Third Schedule to the NBA Constitution and affirming his membership of the branch, submitted proof of payment of Annual dues for 2018, submitted the voters list for Nnewi branch to ECNBA [the name of Afam Osigwe is said to be No. 86 on the list], provided proof of principal place of residence/practice, etc, the ECNBA still did not find satisfactory proof of Mr. Afam Osigwe’s relocation!
Meanwhile, I had earlier in this write up expressed my astonishment at the reference by the ECNBA to an NBA Constitution, 2015 as amended and I have stated that this law is unknown and non-existent. The reference to paragraph 4(1) of the Third Schedule of the imaginary amended constitution or of the NBA Constitution, 2015 is of no moment. In sooth, it beggars belief that the ECNBA has not averted itself to the provisions of section 9(2) of the Constitution, which states unambiguously that the disqualification of any person from participating in the national election of the NBA shall only be in accordance with the provisions of the Second Schedule. At the risk of being pedantic, the provision section 9(2) is again reproduced below:
“The procedure for the appointment of the members of the Electoral Committee, nomination of candidates for election, withdrawal of nominations and disqualification from election shall be as set out in the Second Schedule.”
Be it noted that the Third Schedule to the NBA Constitution, 2015 is only but the uniform bye-law for branches as confirmed by the Head Note to in the Schedule thus “THE NIGERIAN BAR ASSOCIATION UNIFORM BYE LAW FOR BRANCHES. It contains elaborate provisions which relate to the management and control of the branches of the NBA. It has its own unique provisions for such issues or subjects as membership, good standing, officers & membership of the executive council, duties of officers, NEC representative, standing committees, general meetings, finance, removal or resignation of officers, elections, eligibility to vote, duties of election committee, procedure at election, amendment, applicability, etc. In virtually all the paragraphs of the schedule, the word “branch” was used. See in particular Paragraph 23 of the said Schedule where it is stated unequivocally that:
“The Bye-Law shall apply to the Branch to the exclusion of any other Bye-Law”
See also section 13(15) of the Constitution which provides as follows:
“The Uniform Bye-Laws set out in Part I of the Third Schedule to this Constitution shall be applicable to every Branch….”
The point being made is that it is wrong, unlawful and illegal for the ECNBA to require any member of the Association seeking election into any national office of the Association to produce a letter of good standing in order to qualify to contest the election. With profound respect to the Committee, the guidelines formulated by it and which contain this requirement, have derogated from the provisions of the Constitution. They can expound the provisions of the constitution but cannot expand them.
But assuming without conceding that the provision of the said Paragraph 4(1) applies, what does the provision even say? I set it down below:
“4. GOOD STANDING
A member is in good standing and, if he so desires, shall be entitled to a certificate of that status signed by the Chairman of the Branch if:
(1) In addition to his Bar Practicing Fees, he has paid his annual dues and all other financial obligations to the Branch as and when due for at least the immediate preceding three years, unless he was enrolled or had relocated to the State where the Branch is situate within a shorter period which shall then be the threshold point instead of three years”
Speaking for myself, I cannot in good conscience and given the peculiar facts of this case which I have disaggregated earlier, endorse any interpretation which suggests that Mr. Afam Osigwe cannot be accommodated within the exception created in Paragraph 4(1) above. But then I am not the ECNBA!
At any rate, the reasons stated in paragraphs 1 and 2 of the ECNBA’s letter to Afam Osigwe which I have set out earlier in this paper are mutually exclusive. Why complain of no evidence of payment of annual dues from a contestant who is said not to have satisfactorily proved relocation?
Lastly, the third reason given by the ECNBA for disqualifying Mr. Afam Osigwe is that “payment of 2016 and 2017 Branch Annual Dues cannot (sic) be verified. Let me state from the very outset that of all three reasons given, this gave me so much headache! I struggled in vain to appreciate the true import of this reason. But whether the tense “could not” ought to have been employed or “cannot” was rightly used, the critical thing here is that I see here an archetype of giving a bad a dog name in order to hang him. I thought that it was the responsibility of the ECNBA to verify every claim made by any person who submits nomination for election into a national office. Or is it now the other way round? If the ECNBA has a challenge doing its work, shouldn’t it report to the NBA President who constituted it in the first place rather than take it out on a hapless candidate who did all that was required of him, to wit, submission of evidence of payment of the branch dues.
In summary and when all things are considered, the decision of the ECNBA disqualifying Mr. Mazi Afam Osigwe is wrong, perverse, incorrect, illegal and made in clear violation of the provisions of the NBA Constitution 2015. It should and ought to be reversed without much ado.
Aikhunegbe Anthony Malik, Esq., LL.M, FCE, FCTI
Legal Practitioner & Notary
Abuja
aikmalik@yahoo.com