It is indisputable that the provisions of the Nigerian Constitution are binding on governments, authorities and persons. Section 1 (1) of the 1999 Constitution provides: The Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
To further express the superiority of the Constitution, Section 1(3) adds: If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
Since human rights are enshrined in our Constitution, it follows therefore that the provisions containing our fundamental rights are also binding on governments, authorities and persons.
It is, however, generally accepted that fundamental rights in fact existed before the Constitution. Thus, the entrenchment of human rights in the Constitution did not create them, instead it protects and guarantees them from undue interference and enables their assertion.
Among these fundamental rights we speak of are rights such as right to life, right to dignity of the human person, right to personal liberty, right to freedom of expression and the right to peaceful assembly and association.
This article focuses on the right to freedom of association particularly. It seeks to examine the issue of whether the concept of mandatory associations (like the Nigerian Bar Association) is recognised under our law.
Section 40 of the 1999 Constitution of the Federal Republic of Nigeria provides amongst other things that: Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.
From the foregoing, it will be seen that the right to freedom of association, being one of the rights mentioned in the said provision, can be derogated from. However, same can only be derogated from on grounds contained in the Constitution.
In light of the above, where can one find justification for the view that the concept of “mandatory” associations is recognised under our law?
In other words, how does one reconcile the existence of “mandatory” associations with the provisions of Section 40 of the 1999 Constitution and under international law?
At this point, perhaps we should cross-examine the Legal Practitioners Act with the goal of finding out whether it is an Act made pursuant to the exceptions to the right of freedom of association.
Perusal of this Act will reveal that the intention of our lawmakers is basically to literally provide for the existence of lawyers and regulate the law profession through the regulatory bodies established thereunder.
It should be observed that the Nigerian Bar Association was not established by this Act or any other law whatsoever. In fact, it is no longer in dispute that the NBA is registered at the Corporate Affairs Commission as incorporated trustees.
Also, the LPA must necessarily be presumed to have been made pursuant to item 49 of the Exclusive Legislative List which provides for the power of the National Assembly to regulate professional occupations in Nigeria. And it is in exercise of this power that a governing Council (the General Council of the Bar) was established and charged with the general management of the affairs of the profession. What this means is that clearly, the LPA does not purport to derogate from the right to freedom of association but exists to govern the law profession through the Bar Council and other bodies established thereunder.
However, there is some anomaly in Section 1 of the LPA that may have contributed to making some members of the Bar (and the Bench) believe that membership of the NBA is compulsory.
Section 1 of the LPA, LFN CAPL11 2004 provides thus: There shall be a body to be known as the General Council of the Bar (in this Act referred to as “the Bar Council” which shall be charged with the general management of the affairs of the Nigerian Bar Association (subject to any limitations for the time being provided by the constitution of the Association) and with any functions conferred on the Council by this Act or that constitution.”
By the wording of this provision, at least two things are clear, i.e. that the General Council of the Bar is charged with a duty and that the NBA is a self-regulating association.
What is not so clear is why the duty the General Council of the Bar is charged with is limited to the general management of the affairs of the NBA, as opposed to the general affairs of the legal profession in Nigeria. Why has it presumed without any basis whatsoever, that all lawyers belong to this association?
Laws like that of the Medical and Dental Practitioners Act, empowers their Council to regulate the affairs of the profession concerned as a whole. It does not restrict it to some association or presume that everyone must belong to an association to practice their profession. See Section 1 of the MDPA which makes no mention of any association but effectively provides for the regulation of the medical and dental professions.
The NBA is mentioned not just in Section 1 of the LPA but indeed, the NBA enjoys quite a great number of mentions in the LPA and RPC. But can these mentions, serve as the basis for overriding the lawyer’s fundamental right to freedom of association? I think not. The only exceptions to the fundamental right to freedom of association must be traceable to the Constitution.
If the 1999 Constitution intended to regulate professional occupations through mandatory associations, it would have stated so under item 49 of the Exclusive Legislative List. Such intention would however have had to be reconciled with Section 45. A fundamental right such as the right to freedom of association simply cannot be derogated from in the manner attempted by Section 1 of the LPA.
In consequence of the foregoing, since the NBA is neither a body made pursuant to Section 45 of the 1999 Constitution, nor is it even a body established under the LPA, Section 1 of the LPA is in breach of Section 40 of the Constitution and must be considered void.
It is clear that instead of creating a mandatory association to serve as regulator; our law chose to regulate the law profession through regulatory bodies. This option has also been used in regulating other occupational professions in Nigeria; an example is the Medical and Dental profession.
It needs to be added that the Supreme Court’s recognition of the power of the NBA as regards the seal and stamp cannot validly be stretched to imply that all lawyers must be members of the NBA. One can very well choose not be a member of the NBA, but would nonetheless be bound to comply with the Bar Council’s Rules of Professional Conduct. This is because the enabling power to issue the stamp and seal comes from beyond the NBA; it comes from the Bar Council, the maker of the RPC. Indeed this is why the seal and stamp is compulsory and not because the NBA said so.
We must remember that because no lawyer can be pre-empted from joining an association does not mean all lawyers must join the association.
In light of the foregoing, insisting that membership dues must be paid before one can acquire the statutory stamp is in violation of the Constitution. This pre-condition in effect violates one’s right to assemble freely, especially those of non-members of the association.
I conclude by stating that I remain a committed member of the NBA and I strongly believe it remains the foremost professional body in Nigeria. However, no matter how useful an organisation might be, it cannot serve as basis to override a person’s right to freedom of association if it does not at the same time find justification under the law.
Lari-Williams is a lawyer based in Lagos