Nigerian Bar Association National Election 2020: [Not] Learning From History

By Rotimi Ogunyemi

The Spanish-born American writer, George Santayana is credited with the profound statement that those who cannot learn from history are doomed to repeat it. If urgent remedial measures are not put in place by the Electoral Committee of the Nigerian Bar Association (“ECNBA”) in the coming days, I fear that the 2020 national elections of the Association scheduled for 29-30 July 2020 will be heading for a spectacular failure, and the most unfortunate thing will be that any discerning mind would have seen it coming.

The Nigeria Bar Association, better known by its acronym NBA, describes itself as Nigeria’s foremost and oldest professional membership organisation and Africa’s most influential network of legal practitioners, with over 120,000 lawyers on its roll in 125 active branches across the 36 States of the Federation and the Federal Capital Territory of Nigeria. Following a crisis that deprived it of national leadership for a six-year period from 1992-1998, the Association introduced a delegate system for electing its leaders that helped in attaining peace and giving the Association a platform for normalcy to return to its activities, but left majority of its members disenfranchised and having no direct say in the election of their leadership. For an Association that prides itself as being engaged in the promotion and protection of human rights; the rule of law; and good governance in Nigeria, this left a dent on the image of the Associatin until universal suffrage was restored by the Association under the leadership of Austin Alegeh, SAN.

To actualise this universal suffrage, which was first put in place for the election that led to the coming into office of Abubakar Balarabe Mahmoud, SAN in August 2016, the NBA introduced electronic system of voting. Issues with the electronic voting system in 2016 triggered litigation that outlived the NBA Executive Committee that resulted from that election. Those issues were magnified in the 2018 election that instated the administration of the incumbent President, Paul Usoro, SAN. There were credible reports of electoral malpractices in that exercise to the extent that the Economic and Financial Crimes Commission (EFCC) and the State Security Services (SSS) both commenced investigations into the process, leading to the arrest of some staff of the Association. Indeed, it has recently emerged that the EFCC has filed criminal charges against some staff of the NBA for rigging the 2018 election. Although the judicial challenge by one of the ‘losers’ of the 2018 election was ultimately futile, the Association is yet to recover from the crisis of confidence occasioned by the electoral debacle. The prevailing sentiment therefore is that if the NBA with an electoral population of less than fifty thousand is unable to conduct a credible poll, then they have no moral clout to advocate for credible elections for the rest of the country.

It is for the above reasons that any right thinking member of the Association and the society at large would have expected the Paul Usoro Administration and the ECNBA to do everything possible to ensure a credible, transparent, free and fair electoral process in 2020. With less than 5 days to the election, nothing on ground is indicative of that desire. Instead, everything suggests that the ECNBA is headed for the same path that birthed the infamous 2018 election process. If history is permitted to repeat itself, it might be difficult for the Association to survive the fallout this time around.

A few public commentators have written about the 2020 NBA election with some even going as far as predicting with a degree of confidence, and on the strength of the reality on ground, that the 2020 election will be rigged. Two of the Presidential candidates have [directly or indirectly] also written to the ECNBA to register their displeasure with the state of [non] preparations of the electoral body, with the election only a few days away. It is in this regard, that I write [in my unique capacity as both a lawyer and an information technology practitioner] to (i) lend my voice to the call on the ECNBA to get their acts together and prevent a crisis that is sure to arise if they bungle the 2020 national election; and (ii) call on indigenous Information Technology companies not to lend their imprimatur to a shambolic exercise that will ultimately reflect badly on the Technology sector in the country. From a detailed consideration of the process, it is easy to identify five areas of vulnerability that the ECNBA must take a second look at if they are truly desirous of conducting a credible election.

The first issue with the 2020 election is that less than 5 days to the election, there is no credible voters register. Paragraph 2.3(d) of the 2nd Schedule to the NBA Constitution 2015 (as amended) prescribes that the ECNBA shall, in conjunction with the National Secretariat of the NBA, publish the full list of all legal practitioners qualified to vote, at least twenty eight (28) days before the date of the election. It is an open secret that the list published by the ECNBA and termed ‘FINAL VOTERS REGISTER’ is anything but credible. Even a cursory examination of the list reveals multiple cases of duplication of names that are at best indicative of a shoddy and incompetent collation exercise or at worst determinative of a design to induce election rigging. There is also the now infamous case of OPENING BALANCE included in the so-called final voters register when there are hundreds of duly registered legal practitioners whose names are missing from the list. The ECNBA in their Statement No. 012 admits that their so-called final voters register still requires a “clean up exercise in case of names found to have been duplicated”. To date they are yet to advise the electorate of the result of such clean up exercise, which means that no one other than themselves have an indication of the final list of voters, once again leaving room for manipulation of the election result.

A related issue is the strange refusal of the ECNBA and the leadership of the NBA to make available the Access Bank PLC data which is the only credible data to show the names of the legal practitioners who paid their Bar Practising Fees as and when due. One of the criticisms of the 2018 NBA election was the allegation that some lawyers were allowed to vote in favour of a particular candidate despite not having paid their Bar Practising Fees and Branch Dues by 31 March of the relevant year, in contravention of the express provisions of the NBA Constitution. To ensure that such complaints are not repeated this year, the ECNBA ought – in the interest of transparency and good faith – to make that data available to the three Presidential candidates, otherwise they leave themselves at the risk of being accused of having a vested interest.

The third issue with the current electoral process in the NBA arose from the ECNBA’s reliance on the NBA Branches to provide the names of the members who paid their Branch Dues by 31 March 2020. The result of this exercise is a voters list with very questionable integrity. To be eligible to vote at the NBA election, the NBA Constitution requires a member to have paid his/her Bar Practising Fees and Branch Dues by 31 March of the election year i.e. 31st March 2020 in this election cycle. While the NBA can point to the Access Bank record as conclusive proof of payment of Bar Practising Fees, most Branches have no such credible records for the payment of Branch Dues. This is what accounts for the miraculous increase in the list of eligible voters between May 2020, when the ECNBA released the provisional list of voters and June 2020, when the final list was released.

That said, the responsibility of ensuring the compilation of a credible voters register with the ECNBA, and their actions have left a lot to be desired. In earlier statements, the ECNBA requested the Chairmen of the 125 NBA Branches to submit the names of eligible voters AND to submit proof of such payments in the form of Branch bank statements. Subsequently, the ECNBA diluted this requirement by merely requesting the Branch Chairmen to provide any form of proof. This resulted in the production of payment receipts of doubtful provenance and in some cases, no receipts at all. When the ECNBA published the so-called final voters register, signed off by the Chairman and Secretary of the ECNBA, it became the document of the ECNBA and the attempt by the ECNBA to pass the buck to the Branches is mere face-saving and unacceptable. By publishing the list of voters, the ECNBA guaranteed that they had reviewed the list against the prism of the evidence of payments provided by the Branch Chairpersons. Once again, a simple reference to the Access Bank data will suffice to eliminate those who did not pay their Bar Practising Fees by 31 March while the rest of the list can be forensically examined to ensure that only duly qualified legal practitioners are included in the proper final list of voters. Why this data remains top secret is anyone’s guess.

To complicate what is already a tedious process, the ECNBA has introduced a completely irrelevant requirement: the verification of already verified lawyers for the purpose of voting. Paragraph 2.4(c) of the 2nd Schedule to the NBA Constitution 2015 empowers the ECNBA to issue guidelines for the conduct of electronic voting. These guidelines may include the verification of members but only in order to afford all registered voters the opportunity to vote at the election. The current verification exercise of the ECNBA appears designed to actualise the opposite by enfranchising ineligible voters and disenfranchising eligible voters. As stated above, the NBA Constitution requires members to have paid their Bar Practising Fees and Branch Dues by 31 March 2020, this results in a list of eligible voters.

The NBA Constitution also provides for verification of voters, which results in a second list of verified members. The verification currently being undertaken by the members of the NBA is not a verification of eligible voters that should have resulted in the third list of verified eligible voters but a verification of all NBA members on the NBA Portal, inclusive of those who did not pay their Bar Practising Fees and/or Branch Dues as and when due. What the ECNBA is doing is to conflate two distinct requirements of the NBA Constitution and the result is the predictable confusion that has already led to three postponement of the closure of the verification exercise.

In reality, the verification exercise has been anything but seamless. What the ECNBA requires from NBA members – thousands of whom either have no password or have forgotten theirs – is to log into their account and update their records. However, in many cases, the operators of the NBA portal are not instantaneously treating the requests for the retrieval of these lost or forgotten passwords as is the case everywhere else. In some cases, these emails take up to 2 weeks to deliver and many may never get theirs before the election date. In 2020, this is completely unacceptable.

The last issue with the 2020 NBA election process is the questionable integrity of the verification and voting portal. The ECNBA promised in their Statement No. 014 to “put forward the Guidelines for electronic voting which shall amongst other things provide for a place, time and platform to be utilized for electronic voting for the elections to enable our members to vote without difficulty” and to hold interactive sessions with the stakeholders in this regard. Less than 5 days to the poll, the ECNBA is yet to issue this guideline. This means that they are yet to disclose the platform to be utilized for the electronic voting and the Information Technology company responsible for deploying the platform. Beyond this, there are already several credible reports of members who received email notifications of attempts to log into their portals or to change their passwords that were not initiated by them. There is also report from an IT company highlighting the porous nature of the NBA portal. These can only be a foretaste of what is to come with the election itself.

The foregoing issues make it difficult to disagree with those who have predicted that the 2020 NBA election is designed to be rigged in favour of a particular candidate. It is in light of the above, that I call on indigenous Information Technology companies not to lend their imprimatur to a shambolic exercise that will ultimately reflect badly on the Technology sector in the country. It will be recalled that at the beginning of the year, a senior member of the Bar called on the NBA to use only foreign Information Technology companies for the conduct of the election to avoid manipulation. This is a vote of no confidence on the Information Technology sector in Nigeria that should not be allowed to stand. Only the conduct of a transparent, credible, free and fair election can prove the learned Senior Advocate of Nigeria wrong. Unfortunately, however, there is nothing on ground other than fantastic optimism to suggest that the opposite will be the case.

Everyone is watching and the stakes are high, not just for the legal profession in Nigeria but also for the indigenous software companies who must rise to the occasion and write their names on the positive sands of time, if they are to get the needed recognition and be trusted to implement and manage big technology projects. The imperativeness of conducting a credible poll for the NBA is clear for all to see. The ways to actualise this are simple and straightforward. Why the ECNBA has chosen the difficult and complex path to complicate matters is bewildering. And that is putting it mildly. If the legal profession in Nigeria is not doomed to repeat history, with fatal consequences, the ECNBA must get its acts together. They are already running out of time.

Rotimi Ogunyemi
Managing Partner,
Bayo Ogunyemi & Co.
Co-Founder, Spindlar CyberLaw Centre
Chairman, ICT Committee
NBA – Section on Business Law