Law  

‘NBA crisis shows politicians have finally infiltrated the association’

Chief Robert Clarke

Chief Robert Clarke, a Senior Advocate of Nigeria (SAN), in this interview with ONYEDIKA AGBEDO says the crisis rocking the Nigerian Bar Association (NBA) indicates that politicians have succeeded in infiltrating the association. However, he does not envisage the disintegration of the association despite the formation of the New Nigerian Bar Association (NNBA) by some aggrieved lawyers, saying the new group will fail in their mission. Clarke also bares his mind on the insecurity in Southern Kaduna and the agitation against the Companies and Allied Matters Act (2020), among other issues.

The NBA has been in the news for the wrong reasons of late. From a disputed election to the controversy that greeted the dis-invitation of Governor Nasir El-Rufai to its annual conference and then the emergence of a splinter group, New Nigerian Bar Association (NNBA). What do you think is the problem?
The problem has been caused by political influence in the association. Whenever you find politics coming outside the political arena into any other organisation, the politicians tend to destroy that organisation. It is a clear fact that for the past 15 years, politicians have tried a lot to infiltrate the Bar association and as of now, they have done so. This is to the extent that for any lawyer to aspire to be the president of the association, he needs money because they have made the election process in the association look as if it is a do or die affair.

Many facts give rise to this in the sense that the Bar association, as it is today, is a very rich association. We have so much money in the hands of the officials of the association and every young lawyer is aspiring to go inside the association and see what they can get from it. The dispensation of the former president of the association, Paul Usoro, has not given any encouragement to any real Bar man, because he himself was caught in the influence of politicians. He was sponsored by his state; he spent a lot of money and found himself being charged to court for receiving contracts that amounted to over N1 billion. This weakened his period of the presidency.

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Also, there was the notion that a state government sponsored a candidate in this last election. In the process, elections into the Bar association too has been able to give an impression that Nigerians can never, whether it is e-voting or manual voting, get its elections right. And we hope that, that will be rectified because Nigerians are looking forward to e-voting. However, we are aware that many Nigerians are hackers. So, the notion that the election was rigged is on the ground also. But I believe that once you lose an election, you should be able to align yourself with the new dispensation.

Now, whether the Bar association will survive or not because of the decision of the association to withdraw an invitation to El-Rufai leaves much to be desired. The Bar association, I will say, hurriedly invited him. They also invited former President Olusegun Obasanjo and Governor Nyesom Wike of Rivers State, who are also politicians.

Now, is it Obasanjo’s regime that has a good record as against El-Rufai’s regime? I am not being a lawyer for El-Rufai, but the problem in Kaduna State is a problem I have known for the past 25 years. You remember that it was this same Kaduna crisis that made a General, Lekwot, to be charged by Babangida’s regime and he was sentenced to about five years imprisonment. So, the problem in Kaduna State has been there; it is a problem of ethnicity and religion. Kaduna South is Christian; Kaduna North is Muslim. Therefore, it is an inherited problem for El-Rufai, whereas if you look at Obasanjo’s regime, there were many atrocities committed under his watch.

So, if you used the rule of law as an excuse to withdraw the invitation to El-Rufai, then you should have withdrawn from the other politicians. If you look at the circumstances, he is even better than people like Obasanjo and Wike that their invitations were retained. So, to that extent, I do not agree with the Bar association.

But I do not subscribe to the Muslim section of the Bar association now using that as an excuse to form a different association. The Bar is one. Whatever problem is arising is a national problem. Ethnicity and religion are the trouble cankerworm in Nigerian politics. So, it has to show itself but we, as lawyers, should endeavour not to allow it to divide our association.

So, I believe the response by the Muslims will not have any effect, because many of us who know the Bar, know that whether Muslim or not, you are not looked upon based on that aspect of life but based on what you can do for the Bar. I therefore believe that with time, this fractionalisation within the NBA will be cemented.

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The Conveners of the splinter group have said that they broke away not only because of the dis-invitation of El-Rufai. They alleged that a cabal now runs the association and that the welfare of members does not matter any longer. How true are these allegations?
On the question of the association being run by a cabal, as I said earlier, once you allow partisan politics to affect an organisation, the issue of cabal will rise up just like in politics itself. That cabal, according to them, has resulted in ineffective rule. Well, I will not like to look at it from that angle because by the politics in the Bar association, the presidency of the association is rotated.

Three years ago, Mahmoud Abubakar Balarabe was the president followed by Paul Usoro and now Olumide Akpata. At what period in these three administrations did they say a cabal existed? Was it during Usoro’s time and they never raised the problem? Is it in this new leadership that there is a cabal? What yardstick are they using for Akpata to say that he has constituted a cabal?
So, this problem they are raising now can only relate to Akpata’s regime and it is too short a period to assess Akpata’s regime. I don’t believe there is any cabal; it is just an excuse based on El-Rufai’s matter to divide the Bar association.

Do you think what is currently playing will further aggravate the North-South dichotomy given the relevance of the association in the scheme of things in the country?
Look, I don’t envisage a dichotomy; I don’t even envisage a separate northern Bar association. People are just reacting to the events of the moment.

As I said, El-Rufai inherited many things that Obasanjo and Wike never inherited; Wike and Obasanjo created their own circumstances. So, El-Rufai is different from the two. Therefore, if these facts are made clear to many of these northerners, they will find that actually El-Rufai was trying to minimise the fatal situation he inherited.

And when you talk about the North, one third of the population is Christian. So, even if they claim they want to form an association of Muslim lawyers, there are more Christian lawyers in the North than Muslims. So, I don’t think they will succeed. It is a question of time. Time will tell, but I believe that like all other fractionalised situations in Nigeria, we will overcome it.

How far do you think they can go with the request they made to the Attorney General of the Federation (AGF) for recognition?
Fortunately, the AGF has no power to approve or disapprove anything; they have gone to the wrong place. If they want to form a fresh association, they only need to pass a resolution and register it under the Corporate Affairs Commission (CAC). The AGF in law has no part to play in the formation of the Bar association. Actually, the AGF is a member of the Bar association. So, their writing to him is just a publicity stunt; I don’t see them making any progress in that area.

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How do you look at their claim that some countries have more than one Bar association?
The two examples we will look at are the United Kingdom (UK) and United States of America (USA). Under the constitution of the UK, Scotland, England, Wales and Northern Ireland are separate political entities; they have their own governments. So, if they have their own identities, there is nothing wrong for them to have their own Bar associations. So, you have the Scottish Bar association, English Bar association, Welch Bar association and Northern Ireland Bar association. This is because under their constitution, these are autonomous governments within the UK.

In the U.S., it is not the bar association alone; the legal profession itself is not one. A lawyer who qualifies in New York State cannot go to California and practice except he/she gets a dispensation from that state, because they were all autonomous states before they came together and they still retain that autonomy in everything they do.

So, Nigeria is different; Nigeria is one country. A lawyer called to the Bar in Kano can come to Lagos and practice. So, ours is different from the countries they are talking about.

So, that claim has no real basis?
It has no basis. And as I said, it is not reasonable to try to form a splinter bar association. Even within what they call the North, they have not pulled along Taraba, Adamawa, Plateau and Benue States, where I know there are many Christian lawyers. If they are treading on this ethnic and religious terrain, those Christian lawyers will not follow them.

My own advise is that we should look forward to bringing them back and then assuage them that what happened in the case of El-Rufai was a mistake. I don’t believe that what the Bar association did in withdrawing that invitation was correct. No, it was a wrong decision.

You blamed political influence for the present state of affairs in the association. How can the association rid itself of such influences?
It is the leadership of any association that will determine what the followers will do. We now have a president that has been enthroned by majority of lawyers. The challenge now is how do they direct the affairs of the association? So, it is the way and method that Akpata now uses to cement the Bar association that will show the direction we are going to go. It is too short in time now to be able to say this is the way we are going because he was elected just recently. So, let us wait and see the direction he is going to carry us.

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He is a young man and a very young lawyer. Many people feel that because he is not a Senior Advocate he should not have been elected. But as I always say, not all Senior Advocates are good lawyers and not all good lawyers are Senior Advocates. You find very brilliant young lawyers; I have seen a lot of them. But they are not Senior Advocates because the method of appointing Senior Advocates has been robbed of any sense of responsibility. So, I think we will wait for the president of the Bar association to let us see the direction he wants to take us. Everybody is relying on him to bring the Bar association into one unit again.

You have just set one agenda for him, are there other areas you think he should focus on?
I will not set an agenda for him because I don’t know his own agenda. What we can do is to see his own agenda and advise him on areas of that agenda. It is not for me to set an agenda for him. For him to have canvassed for votes and attained the presidency of the Bar association with the highest votes, he must have had many agenda which he put forward to his supporters and they have voted him in. So, let us see his own agenda first before we can determine what to tell him.

When you were addressing the issue on the dis-invitation of El-Rufai to NBA conference, you alluded to the insecurity in Kaduna State, which is just a microcosm of the general insecurity in the country…
(Cuts in) In Kaduna State today, there are three forms of insecurity; these include banditry and cow rustling. Many people in the South don’t know that cow rustling is the worst thing that can happen to a Fulani herdsman. When these cow rustlers come in, they carry 200 cows or more and that is the bank of the Fulani herdsman; that is his source of livelihood. That is one aspect of the problems there that government must look into.

Secondly, there is the problem of kidnapping; these are criminal matters. But they are being fueled by the ethnic and religious problem there.

The governor does not dictate cow rustling; it is not his own making and he is trying his best to deal with the problem according to him. The ethnic and religious problems are problems that he inherited. Kidnapping is a new form of insecurity and kidnapping is not peculiar to Kaduna State; it is all over Nigeria especially in the East and Delta State. Even in the West, there is kidnapping. That is why I am saying that you cannot isolate El-Rufai alone that he is not following the rule of law.

But do you think that both the federal and state governments have really done enough to address the issues in Kaduna State?
Well, it depends on which political divide you are. If you are on the side of President Buhari, you will say that he has tried his best and that he has motivated the armed forces in everyway. You will say that he bought them helicopters and has increased the armoury effect of the military.

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But if you are on the other divide, you will say that he has not done anything, that he should change the Service Chiefs, as if changing the Service Chiefs will translate to rapid success in fighting Boko Haram.

So, it depends on which divide you are. If you believe that he is doing a good job stick with him; if you believe that he is not doing a good job, ask him to retire the Service Chiefs.

Speaking for yourself now, do you believe he is doing a good job?
Let me be honest, it is the 1999 constitution that is breeding all these problems. Twenty years ago, we did not have this spate of kidnapping and ethnic problems. We had it then, as I said, in Kaduna State but it was not rampant all over the federation. Boko Haram crept into Nigeria through the 1999 constitution when some governors were keeping thugs that turned to Boko Haram.

So, my take is that we should fight this political institution that we have now and restructure it so that we have a full national parliament and about six or eight regional governments with one central government. We should divide these 36 states into six or seven states, after all the colonial government ruled us with only 26 provinces.

The Bauchi/Yola/Adamawa Province then constitutes about five or six states now. The Eastern Province then constitutes about five or seven states now. The Delta Province constitutes about three or four states now. So, let us look at reducing the overhead spending on our governance. We have to be careful; the problem of Nigeria today started in 1999.

With your submission, what do you think the president should be focusing on in the remaining years of his administration?
With all these problems confronting the country, there are three things now being undertaken by the government silently which by 2023 will have matured. For instance, we have discovered that so much money has been wasted on fuel subsidy. This fuel subsidy has claimed trillions and trillions of naira from taxpayers’ money. If Dangote’s Refinery comes into fruition, the trillions we spend on subsidy will go away. In the electricity sector, I think Buhari’s government is sourcing that to international organsiations in America and Germany. The railway system is now being drawn from the port in Lagos to Kano, Enugu, Port Harcourt, etc. If the projects are completed by 2023 as we were told, the common man will be satisfied. Many young ones will be employed.

I think Nigeria has prospects to be a great country but let us see how these three areas I have identified will manifest. Nigeria is a rich country. We should not be suffering in the midst of plenty. Poor management and bad governance is the problem of the country.

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Many of the projects you talked about are being funded with loans. But many Nigerians are opposed to government’s plan to take more loans to complete them. What is your take?
The history of loans in Nigeria has created fear in the minds of you and I. When Obasanjo was in government, billions of dollars were given for power creation. Obasanjo left almost 16 years ago but nothing has been shown from that expenses. The only thing I remember is that the House of Representatives, through its process of oversight functions, set up an enquiry about it. This was when Dimeji Bankole was the Speaker. They did fanfare; we all heard how money was paid out to different contractors who never did anything. But that was where it ended.

So, people are afraid when they hear that Buhari’s government will spend billions from loans. It is because all the loans we have been getting were not well utilised. Look at even the COVID-19 pandemic; do you know the amount of money the government has acquired from different organisations locally and internationally? They have sent a lot of money to us. Nobody has been able to show how much they have collected and how they are spending. But look at the pains every Nigerian is experiencing because of COVID-19. It is not only in Nigeria; there are pains even in civilised countries as a result of the pandemic. But their governments have brought out more money so that their citizens won’t feel it. Nothing has been done in Nigeria therefore people are skeptical.

But one thing I can assure you (I am not holding brief for Buhari’s government) is that I see a green light in Buhari’s government undertaking these loans properly. I am seeing what is happening on the railway line; I am seeing what is happening on the roads; everybody is seeing it. Work has been progressing on the Second Niger Bridge, which both the Obasanjo and Jonathan administrations promised but never fulfilled. So, let us give him that privilege and advantage that he is borrowing money but we are seeing what the money is being used for. I don’t want Nigerians to feel that the money now borrowed will follow the same route that previous loans followed. We are seeing what the loans are being used for and he has promised us that he will deliver.

Closely related to that is agitation against the amended Companies and Allied Matters Act (2020) by some groups.

How would you weigh in on the controversy?
You see, churches and mosques are regarded as charitable organisations under the law. Because they are regarded as charitable organisations, they are not expected to pay tax. However, a line has to be drawn. Where a church or a mosque decides to veer from mainly religious purposes to a commercial purpose, the government has a right to look into the finances of that church or Muslim organisation.

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Let me give you an example. Recently, one of the best churches in Nigeria that has its origin from England veered into the business of looking after children where mothers who are members of the church will leave their children there until they come back from work. When they started it, the British government told them, ‘look, you are now veering from your religious programmes into commercial initiatives because you are charging money from these mothers. So, we are going to tax the remuneration from this business.’ They were taxed. They even backdated the tax and they paid it.

If you look at the situation in Nigeria today, many of the Pentecostal churches and even the Roman Catholic Church and the Church Missionary Society (CMS) all have businesses; they own and run schools. This new law says the government has a right to look into religious organisations that have veered into commercial projects. And because of that, if the government finds anything wrong, it has to interfere in the interest of the whole population. It is the way and manner that interference has been described and the power given to the minister under the law that these churches should fight against.

I agree that the powers vested on the minister are too wide and too great. But one has to know that the government has a right to look into the business aspect of a church but leave the charitable aspect untouched.

If you agree that the powers given to minister under the law are too wide, how do you think the religious groups can successfully get the government to repeal the law?
Let the Christian association or the Pentecostal association bring their own proposal. Government has given out a law. When they look at the law, it is for them to state which aspect of it they don’t like and ask government to revise that aspect. It is not for any individual to dictate how it should be done. No! If government has done something and you don’t like what government has done, what is your own plan about it? When you develop a plan, you sit down and negotiate with government. But to say that government cannot and should not interfere in your commercial business is out of it.

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