#NBADECIDES2020: The Election Of Unintended Consequences

By Chidi Anselm Odinkalu

The Election of Unintended Consequences

Balloting for the leadership vote of the Nigerian Bar Association (NBA) on 29 July had both indeterminacy and predictability – indeterminacy as to whom the outgoing leadership truly backed to succeed it but predictability as to the inadequacy of the arrangements for the vote. With just over 130,000 lawyers on Roll, the Nigerian Bar prides itself as the largest professional organization in Africa. Since 2016, its leadership elections had been conducted digitally, granting every living Nigerian the notional right to vote as long as they have paid their annual practicing fees for the year of the election and also subscribed to one of the 125 branches of the Association.

In 2016, balloting in the NBA was followed by acrimonious claims of election rigging, which ended up in the civil courts. By the time judgment was reached in January 2019, the tenure against whom the suit was instituted was long ended. In 2018, the rigging was bare-faced and would result two years later in criminal charges for digital fraud.

In the month before the most recent ballot, it turned out that a senior lawyer had launched a not-so-quiet advocacy for the contest for the position of presidency of the NBA to be somewhat pre-determined. Thereafter, the campaigns caught fire and public imagination. Many factors were at play. No one knew how the COVID-19 pandemic would affect turn out. Ethnic politics was huge factor. Money was present.  The competence and good faith of the Electoral Committee of the NBA (ECNBA), were in doubt. Yet, #NBADecides2020 may ultimately have been determined by two curveballs outside the control of the Association, its organs or the candidates – the misguided sense of professional entitlement of one Senior Advocate of Nigeria (SAN) and a criminal indictment by the Economic and Financial Crimes Commission (EFCC). It was arguably a contest framed and determined by the laws of unintended consequences.

Two-By-Two Ethnic Politics

This year, as always, the marquee position was for presidency of the NBA. Three candidates, all men, were in the running but, wherever you looked, they showed up in pairs. Dr. Babatunde Ajibade and Olumide Akpata were both of the Lagos Bar. Dele Adesina, the other candidate, belonged to the Ikeja Bar. Adesina and Ajibade were both from Ekiti State in south-west Nigeria, Akpata came from Edo State in the mid-west. Ajibade and Akpata were both born in Ibadan, Oyo State. Adesina was born in the state of his origins. Ajibade and Akpata were both products of Nigeria’s Unity School system – Ajibade went to the Federal Government College, Odogbolu in Ogun State while Akpata attended Kings College, Lagos.

Two factors would ultimately feature the most in the campaigns and prefigure the outcome. One was that both Adesina and Ajibade were Senior Advocates of Nigeria (SAN), while Akpata, a former Chair of the NBA’s Section on Business Law (SBL), built his practice and reputation as an expert in transactions, with in being one. The other was that both Adesina and Ajibade are seen as Yoruba from the western states of Nigeria. This is where the story gets interesting.

Eligibility to contest for the office of the president of the NBA is based on a policy of regional inclusion or rotation. For this purpose, Nigeria is divided into three zones approximating to the three founding regions of Nigeria at Independence in 1960, namely: East, North and West. The office rotates to the next zone after two years. This year, it was the turn of the West. In 1960, Nigeria’s Western Region included the territories and communities that became Mid-West Region in 1964 and are today known as Edo and Delta States. Until 2012, the rotation appeared to exclude the Mid-West. In 2014, they insisted on fielding a candidate, Augustine Alegeh, SAN, when the rotation to produce a president last landed in the West. Alegeh beat three other candidates then to emerge victorious.

This year, a conclave claiming to represent Yoruba lawyers, better known as Egbe Amofin, weighed in on the contest by endorsing Dele Adesina as their preferred candidate for the presidency. In doing this, they persuaded some other aspirants from their part of the country to stand down their ambitions. Tunde Ajibade, who is no less Yoruba than Adesina, resolutely declined to stand down his own ambition, effectively denying the Egbe Amofin a consensus (unlike in 2010). This was the first chink in the armour of ethnic bar politics in the 2020 election cycle. The second was the failure of the cauldron of a single-narrative, ethnic politics to burn Olumide Akpata, whose paternal origins are in the Mid-West, by suggesting that he did not come from the West. Rather than derail his candidacy, it this early whispering effort appeared in failing to burn his ambitions to have propelled it. The early trajectory of unintended consequence had been set.

Asiwaju’s Misguided Epistle

Sometime in June 2020, Asiwaju Gboyega Awomolo, SAN, one of Nigeria’s more senior lawyers, addressed a letter to Chief Thompson Onomigbo Okpoko, the most senior living former president of the NBA. The letter complained of an “unannounced but powerful and potent revolutionary move by our junior colleagues, who are very much in larger numbers, to wrestle the office of the NBA (sic) from the rank of SAN.” To redress this, Chief Awomolo suggested that Chief Okpoko should lead a counter-revolution, requiring him to exert his utmost to see that the presidency of the NBA is kept within “the tradition of the rank and seniority” of SAN. Rounding off his advocacy, Chief Awomolo, lamented that “it will be a great failure of leadership for the Senior Advocate to surrender leadership to (sic) Outer Bar when there are willing and able Senior Advocates.”

This letter was not meant to be public. Sometime in the last week of June 2020, it leaked, suggesting that someone among its recipients found it in poor taste. But taste was the least of the problems with it. First, it was a mis-guided attempt to clothe narrow ethnic advocacy with high purpose and to end-run the democratic process. To understand its direction of travel, Adesina became SAN in 2007, ahead of Ajibade who took the rank in 2009. If the club of SAN were to be the consideration and seniority in terms of admission into it dispositive as Awomolo advocated, there was only one way the election was to be determined – in favour of Adesina – whose claim to the inside track, mind you, was that he was endorsed by the Egbe Amofin, an ethnocentric conclave not exactly part of the NBA.

Second, it should have been evident to Chief Awomolo that Chief Okpoko was probably the wrong person to whom to address such advocacy. Apart from being the senior-most former Bar President, Chief Okpoko is also the leader of the Mid-West Bar, which had a candidate in the contest in Olumide Akpata. Akpata began his legal practice in Warri, the city in the Niger Delta where Chief Okpoko built his practice. In a contest in which ethnic origins had high salience, Chief Okpoko could only support Awomolo’s design at the risk of suffering exile from his natal origins and professional home in the twilight of his life. Far from his design, Awomolo triggered an unintended consequence in a ferocious blowback. Without knowing it, he had launched an “anyone-but-a SAN” campaign which did not need any amplifiers to catch fire. There was only one beneficiary of this blowback, a fact that must not have been lost on those who leaked the letter in the first place.

Accounting for Fraud

In the week preceding #NBADecides2020, the rigging of the 2018 ballot finally caught up with the Association. On 22 July, the EFCC filed 14 counts of cybercrimes charges against two staff of the Association, Sarah Ajijola and John Demide,  for various acts allegedly done “with the intent of gaining an electoral advantage in favour of Mr. (Paul) Usoro”, the man who was eventually declared winner in the 2018 vote with a supposed victory margin of a mere 86 votes. According to the charges filed by the Commission, the activities of Ms. Ajijola and Mr. Demide, including digital identity-theft and spoof voting, resulted in a harvest of 1,004 votes being fraudulently credited to Mr. Usoro. Quite clearly, from the charges, the Commission alleges that but for the activities of these staff, Mr. Usoro clearly lost the election.

There was an unsettling, Teflon quality to these charges. It is inconceivable that these two minions could have run an operation to rig the elections of the NBA without the participation of the then leadership of the Association, led by A.B. Mahmoud, SAN; the ECNBA at the time, which was chaired by a law Professor, or the Secretariat of the Association led at the time by general-secretary, Abiola Olagunju, and Chief of State to the President, Muritala Abdurasheed, who was also the campaign supremo for Mr. Usoro. Then, of course, there was the question how minions could have been charged while the beneficiary was free to supervise his own succession. Unsurprisingly, everyone was fidgety. A man who could procure such a circumstance could hardly be trusted with delivering a credible election. The result was another unintended consequence – heightened vigilance.

Discounting the Members

The joke was always that lawyers are poor with numbers. The question whether this is cock-up or conspiracy has always been an open one. In these NBA elections, it was all nearly all about the electoral roll. Voters in NBA ballots have to meet three conditions. First, a voter must be enrolled as a lawyer in Nigeria. This record is kept by the Supreme Court. Second, the person must have paid their annual practicing fees by 31 March. Access Bank collects these payments. The national NBA keeps this record. Third, the voter must also have paid his or her branch dues by 31 March. The NBA comprises 125 branches. Each branch should keep records of these payments. In reality, few do.

The list of voters should be compiled through a data reconciliation process between the records of the Supreme Court, the NBA Secretariat and each of the 125 branches. The Association has historically never bothered to do this because the gaps are profitable for election rigging and private profit. It was not much different in these elections.

The constitution of the NBA requires the ECNBA to issue the list of eligible voters within 28 days of the vote. With elections scheduled to take place on 29 July, the final list of eligible voters should have been out by 1 July. In reality, there was none until five hours to the vote on 29 July. The ECNBA issued a provisional list at the end of May with 21, 067 names. By the end of June, the ECNBA replaced the first provisional list with a second, which grew by 86.65% to 39,321 names. This was the list with which members were required to verify their identities. The idea was only those who were verified would make the final list of accreditation.

When the ECNBA eventually issued the final list on 29 July, it had dropped by 9,686 or 24.63% from 29,635. This was not at all unreasonable at first blush. The ECNBA had managed to eliminate “Opening Balance”, a prominent member on its initial list, whose existence could not, however, be verified. But, in so doing, it had created a scandal. An unknown branch called “Diaspora International”, with 87 members had crept into the list. Obollo-Affor branch in Enugu State with 39 names in the penultimate list had ballooned by about 2,000% to over 600, with names harvested from nowhere. Many branches were populated by figments. Mr. Adelodun was practicing in Aba, Ganzallo had migrated to Owerri and in Abuja, they were looking for Ms. Otele. Meanwhile many who had verified and been digitally assured that they were confirmed to vote could not find their names. A prominent victim was Chief Priscilla Kuye, the only female president in the history of the Association. This, was the closing balance on the voting roll and with a mere five hours to voting, there was no opportunity to correct it.

To say that this raised hackles about the credibility of the ballot, the integrity of the portal and the abilities if the ECNBA would be an understatement. None of these concerns were satisfactorily answered before the conclusion of the election. One of the presidential candidates, Olumide Akpata, personally protested these issues to the ECNBA and hired his own digital forensics team to test the integrity of the data portal of the NBA. When he communicated their report to the ECNBA, they took umbrage. The campaign team of Dele Adesina similarly complained.

A Credible Mess?

When the votes were eventually tallied in the early hours of 31 July, there were 18,256 cast, a turnout of 62%. Olumide Akpata polled 9.891 or 54.3% to beat Tunde Ajibade, SAN, who polled 4,328 or 23.7% and Dele Adesina, SAN with 3,982 votes or 21.81%. Eight hours to the end of voting, over 14,300 (48.25% of the voting roll) notices to prospective voters sent by the SMS channels were undelivered. The margin was substantial but the process was messy. In the end, reluctantly, most people appeared to agree that the most popular candidate was declared winner in the contest for the presidency but the flaws in the process created a mess. Along the way, the NBA also elected in Joyce Oduah only the second woman to be general-secretary in its long history.

It fell to Mr. Usoro, whom the EFCC says was installed with votes from the ghosts, to defend the integrity of the ECNBA. Predictably, even a Senior Advocate of his abilities cannot sensibly square the circle between between credible and mess.

If and when he assumes office as the 30^th president of the NBA at the end of August 2020, Olumide Akpata will have his work cut out. Restoring the credibility of the Association, distracted as it is by the incredulous lows of electoral fraud and financial malfeasance of the past few years will be high on his list of priorities. An inter-generational dialogue between younger and older lawyers is needed. The choice of Mr. Akpata is not a rejection of responsible elders at the Bar but of the entitled, unaccountable, old ways of doing things exemplified by Chief Awomolo’s letter. Above all, however, he will have to work hard to keep his campaign promise of bequeathing to his successor a reformed and much less flawed process than the one that has produced him. This begins with making the NBA credible in the management of membership data and information. That will be the biggest – and most fitting – unintended consequence of #NBADecides2020.

Odinkalu is co-convenor of the Open Bar Initiative (OBI) and writes in his individual capacity.