Automatic And Compulsory Membership Of The Nigerian Bar Association (NBA): An Assumption Taken Too Far

By Kazeem A. Oyinwola

The Nigeria Bar Association (NBA) has, until recently, been regarded as the association for all legal practitioners in Nigeria. In fact, it has been assumed that its membership is automatic on all lawyers in Nigeria upon enrolment at the Supreme Court of Nigeria. This assumption is sometimes taken too far by some lawyers to suppose that the membership of NBA is compulsory on all lawyers called to the Nigerian Bar. One wonders the specific aspect of human rights or constitutional law jurisprudence this assertion is anchored on! NBA performs certain roles, no doubt, and its existence is acknowledged or recognized in some statutes establishing some regulatory bodies in the legal profession in Nigeria. Perhaps, this acknowledgment and recognition of the NBA in those statutes make lawyers forget that NBA is just an association with the same legal consequences as any other association registered under Part C of the Company and Allied Matters Act (CAMA) or what makes NBA different?

Like every other association (professional or otherwise) registered or incorporated under Part C of the Companies and Allied Matters Act (CAMA), no statute establishes NBA. It therefore goes without saying that NBA and its members are governed among themselves by the NBA Constitution. But what has happened over the years that the assumption that membership of NBA is automatic and compulsory on all lawyers has been taken for granted? What is the status of NBA and why do lawyers, the learned men, take it hook, line and sinker that its NBA membership is automatic and compulsory on them?

If we are to separate the myth from the reality, NBA was registered as an association on the 8^th day of April, 1983 under the then Land (Perpetual Succession) Ordinance on 1958. When the Company and Allied Matters Act (CAMA) came into force, it replaced the Land (Perpetual Succession) Ordinance under which NBA was registered. Then the incorporated trustees replaced the registration done under the Land (Perpetual Succession) (Ordinance but now) Act, 1958 and registrations done under the previous law are validated. Therefore, NBA is deemed be an incorporated trustee under Part C of CAMA. In a paper I co-authored titled: ‘Imposition of the NBA Seal/Stamp and the Question of Fundamental Right to Freedom of Association’ published in the Nigerian Law Journal vol. 19, No. 2 2016, we captured the situation thus:

“NBA being incorporated trustees, only the trustees, not the members, obtain legal personality. Thus, the legal title of the association does not vest in all the members but only on the few members called the trustees. To this extent, it will not be out of place to suppose that the NBA is not a juristic person which can sue or be sued in its name (only the Trustees can be sued and the description will be ‘Incorporated Trustees of….’). Admittedly, there are references to the existence of the NBA in a number of statutes, the question is: does a mere fact of reference to an association in a statute, without more, makes it acquire a status higher than that of any other association with similar registration? We suppose that the mere references to or acknowledgement of its existence in those statutes notwithstanding, NBA it is still an association as its name simply implies, Nigeria Bar Association.”

Thus, the reality is that NBA is an association and it is myth to regard it as a regulatory body in the legal profession. After all, it is the Nigerian Bar lawyers in Nigeria are called to and not the Nigerian Bar Association. Lawyers need to get the difference between the ‘Bar’ in the ‘Nigeria Bar’, the profession, to which lawyers are called; and the ‘Bar’ in the ‘Nigerian Bar Association’, the voluntary association of lawyers called to the Nigerian Bar. Getting this difference will assist lawyers a great deal to stop assuming that all legal practitioners in Nigeria are called into the Nigerian Bar Association thereby supposing that the membership of NBA is automatic and compulsory upon enrolment.

If we will be sincere with ourselves, automatic and compulsory membership of NBA is not supported by any law not even the NBA Constitution. Notwithstanding that this myth has existed for so long, the stark reality is that NBA is not the only professional body or association of legal practitioners in the legal profession in Nigeria. Bodies like the Nigerian Association of Law Teachers (NALT), Muslim Lawyers Association of Nigeria (MULAN), Law Officers Association of Nigeria, Christian Lawyers Fellowship of Nigeria, and National Association of Catholic Lawyers exist within the legal profession. As far as CAMA is concerned all these associations including the NBA registered under Part C of CAMA or deemed registered as such have the same legal consequences of registration under CAMA. None is higher in terms of legal consequence of registration than the other. They are all associations bound by the applicable provisions of CAMA. Thus, the assertion that membership of the NBA is automatic upon enrolment or that its membership is compulsory is a wrong assertion. In fact, it is an assertion that is inconsistent with all known human rights instrument/conventions nationally and globally. Indeed, it is an assumption taken too far!

How can compulsory membership of NBA pass the test of section 1(3) of the 1999 Constitution for its obvious inconsistency with section 40 of the 1999 Constitution? How can compulsory membership of NBA be justified in the face of article 10 of the African Charter on Human and People’s Right, an human right instrument that has been ratified and domesticated/incorporated by virtue of Cap. A9 LFN 2004? Or how where can we situate such compulsory membership under the Universal Declaration of Human Rights (UDHR) when article 20 of the same UDHR prohibits compulsion of membership of an association or trade union? Or can we say such compulsory membership is in line with article 22 of International Covenant on Civil and Political Right (ICCPR)? Therefore, it is not only legally wrong to suppose that membership of NBA, an association, is compulsory on all lawyers in Nigeria, it is an aberration to human rights and constitutional jurisprudence to hold such view/opinion. Exactly where do lawyers in Nigeria get it wrong? Doesn’t the right to freedom of Association enshrined in section 40 of the 1999 Constitution include the right to choose not to join a particular association?

Is it not ironical that the NBA Constitution itself does not support the assumption that its membership is automatic and compulsory? For avoidance of doubt, section 4 of the NBA Constitution 2015 provides that: “(1) There shall be two categories of membership; viz (a) Full membership, and (b) Honorary membership.” According to the said NBA Constitution “(i) A full member of the Association shall be any person duly enrolled at the Supreme Court of Nigeria as a legal practitioner and registered with a Branch of the Association”. Thus, for a legal practitioner to be considered to be a member of NBA such a legal practitioner must be duly enrolled as a legal practitioner at the Supreme Court of Nigeria and, in addition, such a person must then register with a branch of the NBA. Going by this provision of the NBA Constitution, it is legally wrong to assume or even suppose that that once a lawyer is enrolled at the Supreme Court, he/she automatically becomes a member of NBA. Going by the above provision of the NBA Constitution, it goes without saying that without registration with a branch of the NBA, you are not yet a member of NBA your enrolment at the Supreme Court notwithstanding. So exactly where does NBA derive power to make its membership compulsory on all lawyers in Nigeria? What is the jurisprudential legal basis being relied on?

When the Abacha regime promulgated the Legal Practitioners’ (Amendment) Decree No. 21 of 1993-4, the Civil Liberty Organization approached the African Commission on behalf of the NBA. This cumulated in the African Commissioner’s case of Civil Liberty Organization (in respect of Nigeria Bar Association) vs Nigeria (2000) AHLR 186 (ACPHR 1995). In that case, it was contended on behalf of NBA before the African Commission that section 10 of the African Charter gives the right to freedom of association, that freedom of association is enunciated as an individual right and it is first and foremost a duty of the state to abstain from interfering with the free formation of associations. It was further contended that there must always be a general capacity for citizens to join, without state inference, an association in order to attain various end. It was further argued on behalf of and in favour of NBA that in regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom and that the competent authority should not override constitutional provision or undermine fundamental rights guaranteed by the constitution and international human rights standards. Thus, it was submitted that the interference with the free association of NBA by the provisions of the Decree is inconsistent with the preamble to the African Charter and constitutes a violation of article 10 of the African Charter. The African Commission agreed with this argument and held that there was a violation of articles 6, 7 and 10 of the African Charter.

This was the argument in favour of NBA premised on the right to freedom of association. Now, is compulsory membership of NBA consistent with article 10 of African Charter? I ask again, by insisting that membership of NBA is automatic and compulsory on all lawyers in Nigeria is NBA not projecting the exact opposite of what it should represent? Or can anyone tell us or explain to us how foisting compulsory membership of NBA on all lawyers in Nigeria is consistent with article 10 of the African Charter, article 22 of ICCPR, Article 20 of UDHR and section 40 of the 1999 Constitution? Lawyers are presumed to be learned in law and how exactly do we end up tolerating this automatic and compulsory membership of NBA this long? Each time we assume or suppose that membership NBA is automatic and compulsory we are actually spiting directly on the face of human rights and constitutional jurisprudence. If man is free to associate, why shouldn’t he be free to dissociate? Let this resonate across the length and breadth of the legal profession that the right to freedom of association carries with it the freedom and privilege to choose not to join a particular association.

Kazeem A. Oyinwola writes from Abuja, the Federal Capital Territory.