{FULL DETAILS}19 Specific Amendments Proposed For The NBA Constitution 2015, GS To Furnish Annual Returns At AGM Not AGC, NEC’s Powers Extends To Appointment Of Exec.Dir For NBA

TheNigeriaLawyer Cross Check

* To Abolish The Offices Of Legal Adviser, Asst Sec, Ors,

The Nigerian Bar Association has proposed 19 amendments to be made in the Association’s 2015 constitution. A synopsis of the proposed amendments and explanatory notes are contained in a Notice coming from the National Secretariat signed by the NBA president, Paul Usoro (SAN) dated 30^th July, 2019 and was sighted by TheNigeriaLawyer (TNL). The proposed amendments are as follows:

PROPOSED AMENDMENT NO. 1 SECTION 7(5)(e)

Original provision

“Subject to the provisions of the Legal Practitioners Act and other provisions of this Constitution, the National Executive Committee shall exercise and execute the following powers and functions . . . appoint a Director of Administration and such other staff for the Association, under terms and conditions as prescribed by the letter of appointment. The director of Administration shall be a holder of University Degree in Law or any of the Social Sciences with experience in management and administration;”

New provision

“Subject to the provisions of the Legal Practitioners Act and other provisions of this Constitution, the National Executive Committee shall exercise and execute the following powers and functions . . . appoint an Executive Director and such other staff for the Association, under such terms and conditions as may be prescribed in their respective letters of appointments. The Executive Director shall be a person who has been called to the Nigerian Bar or who holds a University Degree in any of the Social Sciences and, in either case, also has a postgraduate degree or professional certificate and experience in any of the following study”

Explanatory note

The National Secretariat’s organogram that was approved by NEC at its meeting that was held on 28 March 2019 (“NBA Secretariat Organogram”) provides for the position of an Executive Director and this amendment reflects that NEC decision. Financial management and administration are, perhaps, the NBA’s weakest spots and we believe that the Executive Director can best add value to the Association if he is skilled and experienced and can provide required support to the National Officers in these areas, more so, as the Finance and Human Resources Units in the Secretariat report directly to him/her.

PROPOSED AMENDMENT NO. 2 AREAS: FINANCE, ACCOUNTING OR BUSINESS ADMINISTRATION;” Section 7(5)(g)

Original provision

“Subject to the provisions of the Legal Practitioners Act and other provisions of this Constitution, the National Executive Committee shall exercise and execute the

following powers and functions . . . appoint one of their members or a suitable member of the Association to fill and/or perform the duties pertaining to a vacant office, which said vacancy may occur due to mental or physical infirmity or any other cause;”

New provision

“Subject to the provisions of the Legal Practitioners Act and other provisions of this Constitution, the National Executive Committee shall exercise and execute the following powers and functions . . . appoint one of their members or a suitable member of the Association to fill and/or perform the duties pertaining to a vacant national elected office, which said vacancy may occur due to mental or physical infirmity or any other cause;”

Explanatory note

So that the “vacant office” is not confused with the offices of full-time employees of the Association at the National Secretariat, we thought it wise to qualify the “vacant office” with the words “national elected” so the phrase now reads “vacant national elected office”. This corresponds with the fact that NEC members and the National Elected Officers serve part-time unlike the full-time employees of the NBA at the National Secretariat.

PROPOSED AMENDMENT NO. 3 SECTIONS 8(2); 8(3)(c)(ii); 8(3)(c)(iii); 8(3)(d)(ii); 8(3)(d)(iii); 8(3)(d)(iv); 8(5)(f)

Original provision

On National Officers and Qualifications

New provision

The positions of 2nd Assistant Secretary, Assistant Financial Secretary and Legal Adviser have been axed in these amendments. The General Secretary now has only one (1) Assistant Secretary.

Explanatory note

First, the NBA Secretariat Organogram provides for a Corporate Registry that would report to the General Secretary through the Executive Director. That Registry, with full-time qualified lawyer employees, will assist the General Secretary in recording minutes of meetings and keeping the corporate records of the Association thereby creating corporate institutional memory for the NBA. These therefore eliminate the need for 2 (two) Assistant Secretaries; a single Assistant Secretary, in our view would be sufficient.

Second, with increased use of technology, financial transactions and the attendant documentation will be fully automated and the Financial Secretary, working with the Finance Unit of the Secretariat, would have no need for an Assistant, particularly, given the fact that his primary constitutional responsibility is to document and publish the names of practitioners who pay their Annual Bar Practicing Fees.

Third, the Legal Services Unit of the National Secretariat, we believe can effectively cover the functions that were ascribed to the Legal Adviser under the 2015 NBA Constitution. This amendment therefore removes overlapping responsibilities more so as the Legal Services Unit has a reporting line through the General Secretary to the National Executive Committee. For a better understanding of these issues, please refer to the NEC-approved NBA Organogram.

PROPOSED AMENDMENT NO. 4 SECTION 8(3)(e)

Is entirely a new provision proposed to be an additional paragraph to provide thus:

“The National Officers, and in particular, the President and the General Secretary, must be persons with proven administrative skills and experience and persons of means with demonstrable capacity to serve without expecting or having consideration for pecuniary rewards and/or remuneration.”

Explanation

This is a new provision that will enhance the quality of aspirants to the offices of President and General Secretary – the two critical livewires of the Association.

PROPOSED AMENDMENT NO. 5 SECTION 5. 8(3)(f)

Is entirely a new provision proposed to be an additional paragraph to provide thus:

“The Treasurer and the Financial Secretary must in addition to their law qualifications be persons with basic understanding and appreciation of finance and accounting.”

Explanatory note

This is a new provision that will enhance the quality of aspirants to the offices of Treasurer and Financial Secretary – the two critical positions that deal with the finances of the Association and the reporting responsibilities thereof.

PROPOSED AMENDMENT NO. 6 SECTIONS 8(5)(b); 8(5)(c); 8(5)(d)

The old provision

“The First Vice President . . . shall be responsible for the coordination of the activities of the group of Branches as may be assigned to him/her by the National Executive Committee and shall pay periodic visits to the Branches so assigned to him/her such that he/she would have visited each of such Branches at least once during each year and shall make periodic reports to the National Executive Committee on such visits.”

Similar provisions are contained in Sections 8(5)(c) and 8(5)(d) for the Second and Third Vice Presidents.

The new provision

“The First Vice President . . . shall be responsible for the coordination of the activities of the group of Branches as may be assigned to him/her by the National Executive Committee or the President and shall pay periodic visits as necessary and/or required to the Branches so assigned to him/her and shall make periodic reports to the National Executive Committee on such visits.”

Explanatory note

In recent history, the Presidents have been the ones assigning areas of jurisdiction and zones to the Vice Presidents in the terms of these provisions and we have merely formalized that position in these amendments. We also believe that visits to all the branches in any Vice President’s assigned zone must not be mandatory particularly in this age when technology makes it feasible to conduct virtual meetings. That fact, coupled with the state of insecurity in Nigeria and the attendant risks that goes with road travels (which is the predominant mode of travel to these Branches), discourage the mandatory visits to the Branches by the Vice Presidents more so when virtual meeting arrangements can achieve the same purpose. The cumulative costs of such mandatory visits by the three Vice Presidents would also truly be enormous and the savings therefrom could be utilized for other well-meaning purposes. We therefore replaced the mandatory visits with visits “as necessary and/or required”.

PROPOSED AMENDMENT NO. 7 SECTION 8(5)(e)(v)

Old provision

“The General Secretary – The General Secretary under the overall direction of the President shall be in charge of the National Secretariat and other offices of the Association and his/her duties shall include the following . . . He/She shall furnish an annual return or special reports of the activities of the Association or any of its organs at the Annual General Conference;”

New provision

“The General Secretary – The General Secretary under the overall direction of the President shall be in charge of the National Secretariat and other offices of the Association and his/her duties shall include the following . . . He/She shall furnish an annual return or special reports of the activities of the Association or any of its organs at the Annual General Meeting;”

Explanatory note

From the context, this was obviously a clerical slip or typographical error – instead of “Annual General Meeting” the draftsman wrote “Annual General Conference”.

PROPOSED AMENDMENT NO. 8 SECTION 8(5)(g)(iii)

Old provision

“The duties of the Treasurer shall be as follows . . . He/She shall prepare or cause to be prepared and submitted to the First Meeting of the National Executive Committee an annual budget containing the estimated revenue and expenditure of the Association for the period 1st September of every year to 31st August of the following year;”

New provision

“The duties of the Treasurer shall be as follows . . . He/She shall prepare or cause to be prepared and submitted to the last Quarterly Meeting of the National Executive Committee in any Calendar Year an annual budget containing the estimated revenue and expenditure of the Association for the succeeding Financial Year covering the period January to December of any Calendar Year;”

Explanatory note

This amendment reflects the prayer for a change of the NBA’s Financial Year which, hitherto and up to date, appears in practice to be from August of any calendar year to the July of the succeeding year. We have placed before the Annual General Meeting, a proposal for a change that would have the Financial Year running from January to December of each calendar year. Amongst the several benefits therefrom, this would have a salutary impact on the preparation and presentation of the Association’s Annual Budgets. For a full discourse on this, please, read our Concept Note on the Financial Year Change Proposal which has been published.

PROPOSED AMENDMENT NO. 9 SECTION 8(5)(g)(v)

Is entirely a new provision proposed to be an additional sub paragraph to provide thus:

“The duties of the Treasurer shall be as follows . . . He/She shall cause to be prepared and presented to the National Executive Committee at its quarterly meetings the Management Report and Accounts of the Association for the preceding quarter. The said Quarterly Management Report and Accounts shall be published and circulated to all members of the Association upon adoption by the National Executive Committee;

Explanatory note

This is a new provision that seeks to entrench the practice of quarterly financial reporting, which was introduced and has so far been sustained by the current NBA administration purely out of conviction and not as a constitutional obligation. The proposed amendment would greatly enhance financial accountability and transparency in the administration of our Association and its sustainability would not be dependent on the goodness of heart, whims and dispositions of incoming NBA administrations.

PROPOSED AMENDMENT NO. 10 SECTIONS 8(5)(g)(vi); 8(5)(g)(vii)

Old provision

“The duties of the Treasurer shall be as follows . . . He/She shall circulate to every member of the National Executive Committee the audited accounts and balance sheet for the preceding year;”

We have reproduced this Section 8(5)(g)(vi) merely illustratively. The same amendment has been effected in Section 8(5)(g)(vii) which obligates the Treasurer to “submit an annual report to the Annual General Conference to which shall be attached the audited accounts and balance sheet for the preceding year” – now amended to read “the preceding Financial Year”.

New provision

“The duties of the Treasurer shall be as follows . . . He/She shall circulate to every member of the National Executive Committee the audited accounts and balance sheet for the preceding Financial Year;”

Explanatory note

These amendments merely qualify “the preceding year” so they are understood by the reader to be references, not to calendar years but to “the preceding Financial Year”.

PROPOSED AMENDMENT NO. SECTION 11 8(5)(g)(viii)

Is entirely a new provision proposed to be an additional paragraph to provide thus:

“The duties of the Treasurer shall be as follows . . . In respect of any Election Year, he/she shall, in addition to the audited financial statements for the preceding year, also present to the Annual General Meeting the following financial statements and reports:

1. Half-Year (January-June) Audited Financial Statements; and
2. Unaudited Management Report for the period ended one week to the Annual General Meeting date.”

Explanatory note

This is a financial reporting obligation that should bring some sanity into the management of the Association’s funds in the dying days of an NBA administration by introducing reporting obligations on the day before handover to an incoming administration in respect of the Association’s half-year audit and the unaudited accounts as at “one week to the Annual General Meeting date”. This would hopefully eliminate the disputations and quibbles as to what the closing balances and liabilities that were left behind by outgoing administrations. For more on this, please read our Concept Note on the Financial Year Change Proposal.

PROPOSED AMENDMENT NO. 12 SECTION 8(5)(g)(ix)

Is entirely a new provision proposed to be an additional paragraph to provide thus:

“The duties of the Treasurer shall be as follows . . . He/She shall circulate to every member of the National Executive Committee the financial statements and reports specified in sub-paragraph (vii) above prior to the Annual General Meeting.”

Explanatory note

Same comment as above – i.e. the immediately preceding Section 8(5)(g)(viii)

PROPOSED AMENDMENT NO. 13 SECTION 8(6)(a)

Old provision

“The National Officers shall meet at least once in every calendar month at such time and place as the President may direct. The President shall preside at the National Officers’ Meetings and in the absence of the President, the First Vice-President and failing him, the Second Vice President shall preside.”

The new provision

“The National Officers shall meet once in every calendar month at such time and place as the President may direct provided that such meetings may be held via teleconference, video conference, or by any other electronic medium, means or platform. Subject to the further provisions of this Constitution, the President shall preside at the National Officers’ Meetings.”

Explanatory note

Sections 8(5)(b)(i), 8(5)(c)(i), 8(5)(d)(i) and 8(5)(d)(v) all provide for the chairing of meetings in the absence of the President and we thought it unnecessary to reproduce a part of these provisions in this Section 8(6)(a). The standard phrase “subject to the further provisions of this Constitution” incorporates all the afore-listed provisions.

Second, we introduced in this Section the use of technology for hosting meetings of the National Officers in order to reduce constant travels by National Officers (with the attendant costs not to mention travel risks and dangers).

PROPOSED AMENDMENT NO. SECTION 14 15(8)

Is entirely a new provision proposed to be an additional paragraph to provide thus:

“Without prejudice to the preceding provisions of sub-paragraph (7), the National Executive Committee may, as necessary and required, impose sanctions upon the President and the Treasurer in the event of a failure by the Treasurer (a) to prepare and publish any of the financial statements and reports that are incumbent upon the Treasurer to publish under this Constitution; and/or (b) prepare and present to the National Executive Committee the Annual Budget of the Association as mandated by this Constitution.”

Explanatory note

This is a new provision that seeks to instill discipline in the financial reporting and budgetary provisions of the Constitution. Even though these financial reporting and budgetary provisions are primarily the responsibilities of the Treasurer, the President cannot escape responsibility given the fact that the Constitution vests in the President responsibility of being the Captain of the Ship and ensuring that all the provisions in the Constitution are fully complied with by the National Officers. To that extent, we propose that the President should be sanctioned alongside the Treasurer for these fundamental breaches of the Constitution that are listed in this new provision. Equally important, by making this provision to be “without prejudice to the preceding . . . sub-paragraph (7)”, it allows room for the National Executive Committee to impose sanctions other than their removal from office – the big stick that is stipulated in sub-paragraph (7) – against the President and the Treasurer in respect of these breaches. Of course, NEC, at its discretion can also wield the “big stick” in the said paragraph against these Officers e.g. if there are persistent breaches of these financial reporting and budgetary provisions. The very prospect of these sanctions, in our view, will encourage compliance by NBA administrations, starting with the current administration.

 PROPOSED AMENDMENT NO. 15 SECTION 18(3)

Is entirely a new provision proposed to be an additional paragraph to provide thus:

“Without prejudice to the preceding subparagraph (2), the President shall be the final authorizing person in respect of all electronic banking payments. Provided that all payments, electronic or not, shall be vetted and recommended for payment by the Treasurer and/or the General Secretary prior to the President’s approval and subsequent uploading (in the case of electronic payments) and payment authorization.”

Explanatory note

This provision introduces electronic banking transaction and payment systems to complement the cheque-writing system – a practice that is actually going out of date. In point of fact, the NBA currently runs an electronic payment system. The 10% of the Bar Practicing Fees that were paid to Branches were all paid electronically.

Indeed, virtually all our payments are now done electronically and directly to the bank accounts of the service providers and direct recipients of the funds. This constitutional provision that we have introduced provides for mandatory checks and balances by mandating that “all payments, electronic or not, shall be vetted and recommended for payment by the Treasurer and/or the General Secretary prior to the President’s approval and subsequent uploading (in the case of electronic payments) and payment authorization”.  This provision also holds the President primarily responsible for the management of the Association’s funds and resources and eliminates the excuse that he was not aware of what may have been happening below him.

PROPOSED AMENDMENT NO.16 SECTION 21(1)

New transitional provision to provide thus:

“The occupants of the National Officers of 1st Assistant Secretary, 2nd Assistant Secretary, Assistant Financial Secretary and Legal Advisers as at the commencement of this Constitution shall continue to occupy and perform the functions of those offices as specified in the Nigerian Bar Association Constitution 2015 up to the completion of their respective terms of office.”

Explanatory note

This is a transitional provision that takes care of the current occupants of the offices of 1st Assistant Secretary, 2nd Assistant Secretary, Assistant Financial Secretary and Legal Adviser – positions that have been axed in the amendments hereof. See Item 3 of these Synopsis.

PROPOSED AMENDMENT NO. 17 SECTION 21(2)

Ditto

“Upon the expiration of the tenure of the occupants of the offices specified in the preceding sub-paragraph (1) hereof, the said offices shall no longer exist as offices of the Association and shall no longer be contested for in the National Elections of the Association.”

Explanation

Ditto

PROPOSED AMENDMENT NO. 18 SECTION 22

(erroneously numbered)

“The Nigerian Bar Association Constitution, amended and adopted at the Delegates Conference held in Lagos on 20th August, 2009 and further amended and adopted at the Annual General Conference held in Owerri on 28th August 2014 is hereby repealed.”

The new provision

“The Nigerian Bar Association Constitution 2015 is hereby repealed.”

Explanatory note

This is a Repeal provision that would come into effect when and if the Annual General Meeting resolves to amend the Nigerian Bar Association Constitution 2015 in the terms of our proposals. In point of fact, the Annual General Meeting reserves the flexibility of either repealing and replacing the Constitution, as amended, or merely amending the Constitution in the terms of the proposed amendments in which case, the Constitution will be known and cited as “Nigerian Bar Association Constitution 2015 (as amended)”. Either route would achieve the essence of the proposed amendments.

PROPOSED AMENDMENT NO. 19 SECTION 23

(erroneously numbered as 22)

Old provision

“This Constitution may be cited as the Nigerian Bar Association Constitution 2015 and shall come into effect upon its being approved by the General Meeting.”

New provision

“This Constitution may be cited as the Nigerian Bar Association Constitution 2019 and shall come into effect upon its being approved by the General Meeting.”

Same explanatory notes as for the immediately preceding Section 22.

TheNigeriaLawyer Cross Check