Ahmed T. Uwais Replies Udemezue Sylvester, Says His Opinion Suggests That The NBA Constitution Is Ex Post Facto, Says 2016 Election Activated Rotational Presidency

I read, with dismay, a poorly researched, poorly written and divisive commentary on the NBA Elections. That commentary not only seeks to divide the Bar along tribal and ethnic lines, it also suggests that no lawyer from Edo State is constitutionally competent to lead the NBA until 2026. The commentary raises serious concerns for many reasons: it lacks logic, it feigns ignorance of the NBA’s constitutional and leadership history, it is incendiary, and insulting to us as lawyers. That commentary was written by Mr. Sylvester Udemezue, a Lecturer at the Nigerian Law School.

The basic underlying assumption of that commentary is that the 2015 NBA Constitution, as amended (the “Constitution”), has retroactive or retrospective effect. Thus, the Constitution (and its provisions on rotational presidency, which, hitherto, did not exist) governed the NBA elections concluded before the Constitution came into effect. This is because the entire commentary proceeds on the premise that Mr. Augustine Alegeh SAN (from Edo State) was the NBA President from 2014 to 2016. Accordingly, and consistent with the provisions on rotational presidency in the Constitution, no lawyer from Edo State should lead the NBA until 2026. This argument defies logic and is wrong in law.

We all know that the original version of the Constitution took effect in 2015, about one year after the election that saw the emergence of Mr. Augustine Alegeh SAN as NBA President. We also know that the amended version of the Constitution took effect in August 2019 (see sections 22 and 23 of the Constitution). Given these facts, one wonders how a Constitution that took effect in 2015 went back in time to govern the NBA elections of 2014, which brought Mr. Alegeh SAN into office. The law is quite clear on the legal status of ex post facto laws, particularly where the law in question has the status of a constitution, relates to elections, or relates to criminal liability. The rule of law generally requires that no law should be retrospective or retroactive. By suggesting that the rotational presidency provisions of the Constitution applied to the NBA elections of 2014, is Mr. Udemezue suggesting that our Constitution is ex post facto and violates a core principle of the rule of law? For the sake of our system of legal education, of which he is supposed to be an integral part, I hope not.

Without doubt, the NBA election of 2016 (which saw the emergence of Mr. A. B. Mahmoud, SAN) was the first national election governed by the Constitution. That election activated the provisions on rotational presidency in the Constitution, and serves as the point of origin for any assessment of the implementation of those provisions. Those provisions applied to the Northern Zone in the 2016 elections and to the Eastern Zone in the 2018 elections. Thus, as far as those provisions are concerned, the coming elections would be their very first application to the Western Zone for the purposes of the NBA Presidential elections. Nothing in the Constitution recognises, acknowledges, or validates any actual or perceived zoning arrangements before 2015. Accordingly, Mr. Udemezue’s argument suggesting otherwise and excluding lawyers from Edo State from the list of those eligible to lead the NBA this year is baseless and incendiary.

Even if, contrary to common legal sense, we accept the Constitution as ex post facto and ignore the fact that the Constitution is the fons et origo of the provisions on rotational presidency, Mr. Udemezue’s argument would still be very feeble and counter-intuitive because it ignores the NBA’s leadership history. To demonstrate how counter-intuitive his argument is: Mr Udemezue recently declared his support for Dr. Babatunde Ajibade SAN. The learned Silk is from Ekiti State – his father is from Ado-Ekiti and his mother is from Idoani in Ondo State. Interestingly, Mr Wole Olanipekun SAN, who led the NBA from 2002 to 2004 is from Ekiti State. His Excellency, Rotimi Akeredolu SAN, who led the NBA from 2008 to 2010, is from Ondo State. Mr Dele Adesina SAN, who ran for the office of NBA President in 2014 and intends to run again, is also from Ekiti State.

From the above, and consistent with Mr. Udemezue’s arguments, Dr. Babatunde Ajibade SAN and Mr. Dele Adesina SAN, are NOT constitutionally competent to lead the NBA now. In fact, no lawyer from Ekiti or Ondo State would be competent to lead the NBA until the late 2030s or the early 2040s. In this regard, one cannot ignore the manifest inconsistency between Mr. Udemezue’s argument and his public support for the candidacy of Dr. Babatunde Ajibade SAN. For effect, I have reproduced Mr. Udemezue’s argument below, with some additions in square brackets:

“The Western Zone – Delta, Edo, Ekiti, Lagos, Ogun, Ondo, Osun, and Oyo.▪ It is my respectful view they [sic] any candidate coming out from [EKITI] State for NBA Presidency is contesting in violation of the law governing NBA National Elections. ▪NBA Presidency is not for only [EKITI] lawyers. It is not only [EKITI] Lawyers that are capable of leading the NBA. WE [sic] have competent hands within all states in Nigeria. There are 8 states in the western zone as shown above …That, with the greatest respect, would not fair, not just and not Constitutional [sic]. *▪What does the rotational presidency provision of the NBA Constitution mean if the NBA Presidency rotates only within [EKITI] State, each time it comes to the west? ▪Such, if allowed, would mean that the provisions of our own constitution are meaningless to us. ▪If lawyers cannot observe the provisions of their own constitution, how on earth could we be justified to criticize or condemn other non-lawyer politicians when they trample upon or desecrate the constitution of the federal republic? ▪Let a competent Lawyer from another State within the Western Zone lead the NBA from 2020 to 2022”.

Mr Udemezue’s garrulity, often without critical thought, on this subject is now working against the candidacies of Dr Ajibade SAN and Mr. Adesina SAN. At this point, publicly distancing one’s self from Mr. Udemezue would be a smart political strategy for anyone contesting in these elections.

In the period leading up to the 2014 NBA elections, well before the enactment of the Constitution and its provisions on rotational presidency, I recall that efforts to reach an understanding on zoning were rejected by Egbe Amofin. In a recent article titled “We Must Not Permit The Manipulation of History”, Orji Uka succinctly describes this when he stated thus ‘…while I cannot claim to have first-hand knowledge of what transpired, there have been several credible accounts of a meeting where lawyers from the Midwest requested that the Presidency be reserved for them, but this was flatly rejected. The above is fortified by the fact that, contrary to the dishonest impression that the NBA Presidency was zoned to the Midwest in 2014, there were indeed 3 very distinguished lawyers from the South West on the ballot to wit, Mrs. Funke Adekoya, SAN, Deacon Dele Adesina, SAN, and Mr. Niyi Akintola, SAN. Thus Mr. Augustine Alegeh, SAN, emerged as NBA President in spite of, and not because of, the lack of an arrangement between the Midwest and the South West.’ Consistent with their attitude in 2014, the communique issued by the Egbe Amofin after their meeting of 14 December 2019 also clearly zoned the office of the NBA President, from now till 2032, to all states within the Western Zone, excluding Edo and Delta, perhaps, as a further demonstration of the fact that there is no pact between the South West and the Midwest on rotational presidency.

If, for whatever reason, I decide to join Mr Udemezue in the pit of tribal and divisive politics, I would argue that Mr Augustine Alegeh SAN is an Estako lawyer, and represented that group/section within the Western Zone. Mr Olumide Akpata, on the other hand, is a Bini lawyer, which is another group/section with the Western Zone. Since the Constitution does not define what qualifies as a group or a section within each zone, one may interpret it to mean: (i) each NBA Branch within each zone; (ii) each local government area within each zone; (iii) each state within each zone; or (iv) each language group within each zone (i.e. Yorubas, Binis, Esans and the others). By championing arguments like this, Mr Udemezue is fanning the embers of ethnic rivalry within the NBA. He must be stopped from bringing lawyers to disrepute.

Finally, let us jettison these ethnic sentiments and focus on competence. I think that we will all fair better if we read less from Mr. Udemezue.

My name is Ahmed T. Uwais