‘The Amendment is Dead on Arrival’ – Raymond Nkannebe
It is almost a mute point, at least to legal practitioners and political scientists that the paramount objective of any lawmaking exercise, is to achieve advancement in the affairs of a society, group or organisation. In this connection therefore, lawmaking is a response to the identified problems within a State or organisation. Classical thinker, Socrates probably put it best when he argued that, “only decrees based on knowledge of objective justice can count as true laws”.
As human societies continue to evolve, so too her laws, rules and regulations, in line with the dynamic and organic nature of laws and societies respectively. All over the world, the act of legislation is a forward-looking endeavour, and never an exercise steeped in backwardness, much less tyranny. The reason is not far-fetched: human societies do not proceed in a retrogressive movement.
Lawyers are all too familiar with the Mischief rule of interpretation of statutes, that traces its ancestry to the Heydon’s Case. Under this principle, lawmaking is informed by the need to suppress a mischief, and advance the remedy. This principle unarguably strikes at the core of the lawmaking process, and demonstrates the philosophy behind the lawmaking power that rests with parliament as well as other institutions saddled with the power of making subsidiary laws and regulations.
Purported Amendment of the RPC
Against the foregoing background, the vacuity of the purported amendment to the Rules of Professional Conduct of Legal Practitioners in Nigeria (RPC) 2007 by the Honourable Attorney-General of the Federation, Abubakar Malami, SAN, which has rightly agitated the legal community, can be better appreciated and interrogated.
With a tooth comb in hand, I have gone through the purported deleted sections of the RPC, namely sections 9(2); 10; 11; 12 & 13 thereof, and it is clear to my mind that if allowed to stand, would precipitate the beginning of the end of legal profession in Nigeria, which remains the envy of other professional associations.
On many fronts, the so called amendment is dead on arrival. Firstly, by the tyrannical manner in which it purports to have been made, it is unconstitutional, ultra vires the powers of the learned Attorney-General, null and void. And, in terms of what it portends for the legal profession, it is conservative, backward-looking and seeks to set the clock of the Nigerian Bar Association (NBA) backward, at a time when the theme of its just concluded Annual General Conference (AGM) speaks of stepping forward.
Let me attempt a brief overview of the sections purportedly deleted by this unilateral, perfunctory and arbitrary exercise of power, against the mischief behind their ‘enactment’ in 2007 by the Bayo Ojo, SAN-led Council of the Bar.
Rule 9(2) which to all intents and purposes gives fillip to Section 8(2) of the Legal Practitioners Act, L11 LFN, 2004 (which provides for mandatory payment of practicing fees by every legal practitioner), seeks to ensure that Lawyers who continue to derive revenue from the practice of the ‘trade’, pay their due practicing fees. The logic behind this provision is so elementary, that it should not be adumbrated. But, for completeness, I hasten to submit that payment of fees is an incidental obligation of membership of any group or association.
Rule 10 seeks to wean off quacks and impostors in the profession, by the aid of unique stamps and seals provided by the NBA. Of course, at a fee. The wisdom behind this salutary provision was underscored by no less an authority than the Supreme Court of Nigeria in the famous case of Yaki v Bagudu (2015) 18 NWLR (Pt. 1491) 288 thus, “the rules are made by professionals to protect and guard jealously the enviable legal profession”.
Rule 11 instructively provides for the Continuous Professional Development (CPD) of Lawyers through attendance of courses, seminars, lectures, workshops etc. Who can fault the thinking behind this ethical and professional imperative? Lawyers do not trade in articles or goods, like traders in Balogun or Bodija markets. On the contrary, they trade their knowledge and skills. Today, the average Lawyer is as relevant as the amount of information at his disposal. In our current world of broadband and information highway, of what use is the Lawyer who would not enlist in continuous professional development, in meeting the highly technical demands of his/her calling? Strangely, this is what the leader of the legal profession in Nigeria, Abubakar Malami, SAN recommends for the Nigerian legal community, at a time when the ‘business space’ of Lawyers continues to suffer encroachment from other quarters.
Finally, Rules 12 and 13 seek to ensure due compliance with the provisions of Rule 11 on mandatory career development, and proper regulation of the profession by due notification to a local branch of the Association upon the setting up of a law practice by a Lawyer either alone, or in association or partnership with another, respectively.
Assuming Malami succeeds in foisting his will and weal on the legal community, the instruments of ‘control’ and paraphernalia of due regulation that have held the profession and the Bar Association close knitted as well as in good esteem, would be eroded: Lawyers would not be obligated to pay their practicing fees to the NBA, or their branch dues at the local level; any Tom, Dick and Harry would be ‘entitled’ to practice in our courts or settle pleadings provided they can afford a wig and gown, or are able to muster some legal jargons; the importance of professional development would be denuded, and finally, law practices would spring up arbitrarily with no standards of regulation. In effect, the floodgate of the prostitution and bastardisation of the noble profession would be opened, with consequences that are better imagined. Can this be the wishes of the General Council of the Bar (the “GCB”) for the legal profession in Nigeria?
This brings me to the manner in which this purported instrument was issued. The commencement note reads, “in exercise of the powers conferred on me by Secyion 12(4) of the Legal Practitioners Act Cap L11 LFN, 2004 and all other powers enabling me in that behalf, I, Abubakar Malami, SAN Attorney General of the Federation and Minister of Justice and President General Council of the Bar make the following rules”.
The GCB is made up of at least 50 members per Section 1(2) of the LPA, and the quorum of the Council is pegged at eight members per Section 1(4) of the same Act, for purposes of the proceedings of the Council. As at the time of this writing, there is no word yet, of when the hallowed Council sat to approve of the so-called amendments, as it should be with any lawmaking process.
All we hear is of an Attorney-General arrogating the powers of the Council to himself, and making orders in a manner that would make the worst despotic regime cringe with both envy and scorn. Yet, the purported amendments are made to be binding on an Association of arguably the finest minds, and whose members run in excess of 100,000. Is that the best approach to law making? Can the whims and caprices of one man modify the fundamentals of an Association, only because he is a nominal President of an arm of the Association? The answers to the above posers do not task serious thinking; they however, help to unmask the leprous hands of the so called “New NBA” in the unfolding drama.
We had seen a letter written to the Honourable Attorney-General issuing from the promoters of that contemptuous group and titled, “RE: NOTIFICATION OF THE FORMATION OF NEW NIGERIA BAR ASSOCIATION (NNBA)” in the wake of their white elephant project, where they had sought the “understanding” of the Honourable Attorney-General. Could this be a statement of that solicited understanding? There are no reasons to think to the contrary.
At a time when the Honourable Attorney-General should be occupied with efforts at saving Nigeria from paying a whopping $9.6 billion in judgement debt to the British Virgin Island company, P&ID Ltd, it beats one hollow that he is rather more interested in meddling in a “proxy war” within the NBA that is as baseless as it is irrational, even if it means prostituting his nominal office as the President of the GCB, and by extension, the Chief Law Officer of the Federation.
Having won at the last election into the National Offices of the Association, there is no reason not to imagine that these ugly developments are strategic landmines by some reactionary forces within the “establishment”, to distract Mr. Olumide Akpata from delivering the goods he had promised thousands of Nigerian Lawyers who had voted for him at that important election.
To this group, striving for a schadenfreude moment like Shylock, It must be told: if we should bring down the NBA today because of one moment of unjustifiable grievance, there’ll be no NBA for any of us to savour tomorrow. Let it be known that, the future of the NBA exceeds the brief two-year tenure of the current administration. If there’s anything therefore, that we must do, it is to support the administration and quit this obsession with courting a needless ill wind that will blow no one any good. Two wrongs after all, do not make one right.
Raymond Nkannebe, Legal Practitioner, Lagos