NBA Election: Money Driven Campaigns, Voters Verification, Portal Integrity, Ajibade, SAN Writes Committee, Lists 6 Issues & Recommendations

A former presidential candidate in the 2020 Nigerian Bar Association (NBA) National Elections, Mr Babatunde Ajibade, SAN has submitted his memorandum to the NBA Electoral Reform & Audit Committee saddled with the responsibility of auditing the 2016, 2018 and 2020 elections of the Association.

In addition, he has identified six areas of concerns and proffered recommendations thereto.

The memorandum which was made available to TheNigeriaLawyer listed 6 issues, ranging from integrity of voters register, money-driven campaigns, verification process, the integrity of portal amongst others and consequently, he has given his recommendations on all the identified issues.

The memorandum reads:

Memorandum on Electoral Reforms in the Nigerian Bar Association

Thank you for your invitation to submit a memorandum on electoral reforms in the Nigerian  Bar Association (“NBA”).   As a contestant in the immediately  preceding election, I have recent and relevant experience of the shortcomings in the current system and I am pleased to share my recommendations for reform hereunder.

1 .1           Background

The integrity of the voters’ roll/register is the lynchpin of any credible election. Under the current NBA Constitution, voters are required to have paid their Bar Practising Fees (“BPFs”) and Branch Dues as and when due for the year in which the election  takes  place.    This  is  stipulated in  section 2.2(f)  of the second schedule to the NBA Constitution 2015 (as amended).   The due date for payment of these fees is on or before 31  March and this is stipulated in section 9(1) of the Rules of Professional  Conduct 2007 (“RPC”) for BPFs and in section 3(3) of the Uniform  Bye-Laws for Branches contained in the third schedule to the NBA Constitution.  Thus, the first step in securing a credible election is to have an efficient means of ascertaining the names and identities of members who have met this requirement as soon as possible after the cut• off date of 31  March in the election year.

1.2      Areas of Concern

1.2.1   There  have  been  allegations  of  manipulation  of  lists  of  financial members of various branches by their  Branch Chairmen and other Executive Committee members.    Aside from the allegations of manipulation  of lists of financial  members by some branches,  record keeping has been a major problem with the NBA and its branches.   It is sad that the NBA and/or its branches do not have a clean database of the association’s members and that attempts have to be made in each election year to  build a database from  scratch.    This,  undoubtedly, creates significant challenges leading  to  many eligible  voters  being disenfranchised  and to allegations  that ghost voters  are  injected  into the system to inflate the votes for particular candidates.

1.2.2   In  the last elections,  for example,  there were  different versions  of the voters’   lists   with   significant   complaints   of  wrongful   omission   and inclusion of names in respect of each version,  including the ubiquitous member “Opening  Balance”!

1.3       Recommendations

1.3.1   I     recommend  that  the  NBA  leverage  on technology  to  resolve  this recurring issue.   Currently,  the NBA national  body is  able to ascertain the names and identities of members who have paid their BPFs by 31 March in  each year with ease.   This is  because members are directed to pay their BPFs into a dedicated account with a designated bank and to indicate their names, branch and enrollment number on the payment slip.   Thus,  all that the NBA national  requires to ascertain the identities of members who have paid is a print out of the statement of account at the close of business on 31° March.

1.3.2  The  Uniform  Bye-Laws for  Branches should be amended to compel NBA Branches to also open dedicated accounts for receiving  Branch Dues in the same way that  NBA National  receives  BPFs.   As with national, all payments of Branch Dues must reflect the name and SCN number  of the  member  paying.    Once this  is  done,  all that will  be required to ascertain who paid as and when due will  be a print out of the Branch’s bank statement.

1.3.3   I   recommend that the Uniform  Bye-Laws for Branches should stipulate a short fixed period after 31  March in an election year in  which the statement  of  the  Branch  Dues  account  for  each  Branch  will  be forwarded  to the Electoral  Committee of the NBA (‘ECNBA”),  failing receipt of which the members of that Branch will be disqualified from voting in the national elections for that year.

1.3.4  Sequel  to  the  above,  a  competent  audit  firm  should  be  given  the mandate to compile the list of eligible voters based on a cross• referencing  of  the  statements  of  account  of  the  NBA  National’s dedicated  BPF account and the dedicated  Branch Dues accounts of the NBA Branches.   If this exercise  is carried out immediately after the 31  March cut-off date for  payment of BPFs and Branch Dues,  the NBA will  have a conclusive  and credible  voters’  roll/register well  in advance of the elections that are to hold in July.

2. Money Driven Campaigns

Background

As members of the most noble of all  professions, we are expected to set an example for the rest of society by our conduct.   Unfortunately, NBA elections have attained notoriety as being monetized  especially for the offices of the President and the General Secretary.  Aspirants are expected to travel to the majority of the NBA branches (currently  125),  make donations to branch law weeks,   branch  projects  and  become  emergency   philanthropists  to  curry favour  of voters.    Indeed,  there  are  allegations  of direct  cash  inducements being demanded and given to voters by aspirants to elicit their votes.

2.2      Areas of Concern

2.2.1   I      am  of  the  view  that  selecting  the  leadership  of  a  professional association such as the NBA should be a function of the character and track record of the persons seeking to lead,  their contribution to the profession and the content of their proposed programmes for the association and not a function of the depth of their pockets.

2.2.2  The menace caused by the monetization of NBA elections has been recognized  by  some  of  the  provisions   in  the  election  guidelines contained    in   the   second   schedule   to   the   NBA    Constitution. Specifically,  section 2.3 (f),  (g) and (h) seek to regulate the extent and the means by which candidates may campaign.    However, these provisions are not sufficiently detailed and they have been observed more in the breach in previous elections than in obeisance.

2.3      Recommendations

2.3.1    I    am of the view that the provisions of the election guidelines need to be a lot more detailed and prescriptive of what candidates for election into  national  offices in  the association can and cannot do and what branches,  fora  and  sections  of  the  association  must  not  do  in  an election year.  A non-exhaustive list of some of the suggested dos and don’ts are as follows:

(a)       candidates for elective office  should be prohibited from making any donations, either in cash or kind,  to any branch, forum or section  of  the  NBA  in  the  calendar  year  leading  up  to  an election;

(b)      branches,  fora and sections of the  NBA should  be prohibited from soliciting contributions/donations/sponsorship of any sort from  candidates  who   have  signified   an  intention   (whether formally or informally) to contest into any national office;

(c)       candidates who have signified  an intention  (whether formally or informally)  to contest for election into any national  office should be prohibited from paying physical visits to any branches of the association or to any offices of members of the association to campaign;

(d)       the  ECNBA  should  send  the  manifestos  of  the  candidates directly to all the eligible voters and candidates should also be able to circulate their campaign materials electronically through online platforms;

(e)       the ECNBA should organise debates,  either  physical  or virtual, to  be  held   between  the  candidates  in  each  of  the  zones recognized by the NBA Constitution for aspirants to the office of President  and  General  Secretary  while  a  single  nationwide debate can be scheduled for aspirants to other offices.    In  this day and age of technology,  I     believe those who are genuinely concerned  with  having  good  leadership  will  take  out time  to watch such debates and be able to deduce from the manifestos and reputation of the aspirants,  the persons they feel  can do the job.

2.3.2   For these prescriptions to have any impact however, the ECNBA must establish that it  has the will to enforce the regulations put in  place.   As I note in  2.2.2 above,  the current guidelines contain some prescriptions and the ECNBA issued additional prescriptions  in the run up to the last elections.    However,  these  prescriptions  and  guidelines  were  flouted with seeming  impunity,  thus rendering them useless for their intended purpose.

2.3.3   There  are concerns that despite the  notoriety  of the flouting  of these guidelines  (including  undisputed  evidence circulated on social  media), the ECNBA failed to act,  on the basis that it had not received a petition. The  ECNBA should take a much more robust approach to protecting the sanctity of the electoral  process,  otherwise  establishing  rules and prescriptions will be an exercise in futility.

3. . Voters Verification Process

3.1       Background

Since the  inception  of electronic voting  by the  NBA,  one major  source of concern is the process of voter’s verification by the ECNBA as this has led to disenfranchisement  of many voters.   This in  turn has led  to voter apathy as the  number  of  voters  in  every  election  is  far  lower  than  the  number  of registered or qualified voters.

3.2      Area of Concern

In the 2020 election, the process of voter verification was tedious and complicated for many voters who had to visit the NBA portal to upload their credentials  to be eligible  to vote,  even after paying their BPFs and Branch Dues as and when due as required by the NBA Constitution.  The portal was slow  and  it  took  many  days  and  several  attempts  for  some  members  to complete the verification process.   This resulted in many members becoming disenchanted  with  the  process  and  losing  interest  in  participating  in  the election.

3.3      Recommendation

The NBA must organize and maintain a standard database of all  practicing lawyers  and update same annually to reflect  members that  have complied with the requirements for practicing.   This will aid the ECNBA in  conducting the  process  of  voter  verification  at  election  time  and  provide  a seamless procedure for deciding the leadership of the NBA. The verification process for eligible voters must be made simpler with the use of modern technology and done immediately after the compilation of the voter’s roll and well in  advance of the actual  dates for the election to allow time for voters’  complaints to be dealt with by the ECNBA.

4. . Voting Portal  Integrity

4.1       Background

While the idea  of electronic voting is  a welcome development,  the last three NBA elections   have  been  controversial  with  allegations   of  rigging  and manipulation of the process.  These allegations have arisen due to alleged or obvious inadequacies in the capacity and integrity of the portals employed.  A vivid example is the significant number of voters who were inexplicably unable to cast their votes in the last elections.

4.2      Area of Concern

The voting portal deployed in the last three NBA elections have proven to be unreliable.   In the last election,  candidates  were  kept in  the dark as to the identity  of the  service  providers  and  could  not  carry  out  an  independent assessment of the competence, capacity or quality of the portal.

4.3      Recommendation

4.3.1    I   recommend that the establishment of the voting portal and conduct of the   actual   elections   should   be   outsourced   to   a   professional organization  with  a reputation  to protect,  such  as one  of the  big 5 consulting firms.

4.3.2  Also,  the  various  candidates   must  be  allowed  to  interrogate  the quality,  capacity and  integrity of the  portal  through  their  chosen  IT professionals.

5. Independence of the ECNBA Background

A  major  determinant  of any electoral  process  is  the  independence  of the electoral umpire from any form of interference or control by internal or external parties.   It is their independence that will guarantee them making decisions without bias in favour of or against any candidate.

5.2      Area of Concern

Section  9  and  section  2.1(c)  of  the  NBA  Constitution  provide  that  the members  of  the  ECNBA  shall  be  appointed  by  the  National  Executive Committee (“NEC”).   However, in  all the elections that have been held under this Constitution,  the sitting  President of the NBA has unilaterally appointed the members of the ECNBA without recourse to members of  NEC and NEC has merely  rubber  stamped  this  decision.   This  has resulted  in  the sitting President exercising an overbearing influence over the ECNBA and has made it impossible for the ECNBA to have the requisite independence.

5.3      Recommendation

I     recommend that the provisions of the Constitution  stipulating that members of the ECNBA should be appointed by NEC should be amended and be made more prescriptive.   I   am of the view that the absence of a laid-out  procedure for  the  appointment   of  ECNBA  members   is  what  has  enabled  the  NBA Presidents  to  usurp  this  power.     I      recommend   that  the  members   of  the ECNBA  should  be a standing  committee  to  be constituted  ex-officio  by the Chairmen of each of the Sections and Fora of the NBA for the time being,  and with the Chairman of the ECNBA being the most senior of these members.

6. . Audit of Result

6.1       Background

The  last  three  elections  of the  NBA  conducted  via  electronic  means  have been  questioned  by  various  interest  groups  as  no  provision  was  made  for audit of the result to verify the authenticity of the data received from the server before declaring  same as the true position of the wishes of the voters.

6.2       Area of Concern

The non-provision  of audit of election result by the ECBNA or an independent committee   has  cast  doubt  on  the  authenticity  of  results  declared   by  the ECNBA.   The failure  to permit  audits  of past  elections,  even  when  credible allegations  of breaches  of the election  portal  and compromise  of the  server have been made has caused  reputational damage to the NBA and fuelled the perception that these elections were manipulated.

6.3       Recommendation

I    recommend  that,  where  it  is  demanded  by any of the candidates,  provision be made for audit of election  results before declaring  same as the final  result after  close  of  voting.    The  audit  must  be  carried  out  within  a  stipulated time-frame  by the  ECNBA  supported  by an  independent  committee  with the input of the various candidates.

7. . Conclusion

7 .1         I    thank  you once  again for the opportunity  to contribute my thoughts  on this important  reform  exercise.    Our  association  has  survived  three  contentious and  fractious   elections  under  the  electronic  voting  and  universal  suffrage system  established   under  its  2015  Constitution.    Three  attempts  over  six years  is  a  sufficient  period  for  us  to  identify  and  address  all  the  teething problems that attend this system.

7.2      I      am  extremely   concerned   that  the  association   will  not  survive  a  fourth fractious  election  process  and this  is  what  makes the work of this committee of such critical  importance to the association.   I    wish  you Godspeed  in your deliberations  and the wisdom  to make the  right  reform  recommendations.    I also  wish  the  leadership  and  membership  of our  association  the wisdom  to adopt and faithfully  implement  such reform  recommendations  as are made in the common  interest of the association  and all its members.

Yours faithfully,

Dr. Babatunde Ajibade, SAN