THE NIGERIAN BAR ASSOCIATION, MANDATORY ASSOCIATIONS VIS-A-VIS THE RIGHT TO FREEDOM OF ASSOCIATION
What has attracted me to write on this topic is the answer I received when I asked someone for the basis of his view that membership of the Nigerian Bar Association (NBA) is mandatory for all lawyers in Nigeria. In response to my question, he said “it’s automatic, once you’re a lawyer; you’re a member of the Nigerian Bar Association.”
It is in consequence of this that I decided to find out for myself (and perhaps for you) what the position of the law is on the issue of whether membership of the NBA is mandatory for lawyers called to the Nigerian Bar or not. While disclosing the position of the law on this, the concept of mandatory associations will be also be examined and we will see whether it is one which is justified under Nigerian law.
It is to be noted though, that no one doubts the usefulness of the Nigerian Bar Association and its role in strengthening the legal profession. I am a proud member of the NBA and I align myself with all the objectives of the association. However, no matter the usefulness of an organisation, 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.
Can the government force people to associate?
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…
Similar provisions protecting this right are found in the United Nations Declaration of Human Rights, the International Covenant for Civil and Political rights and the African Charter on Human and People’s Rights. This right has been described by many courts as also being the right not to assemble or associate with other persons and the right to be left alone. This is a fundamental right and so can only be derogated from under clear, unambiguous and acceptable grounds stated in the Constitution itself.
Grounds upon which this right may be derogated from are found in Section 45 (1) of the Constitution which provides that:
Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons.
Section 45(2) provides inter alia:
An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35of this Constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency…
From the foregoing, it will be seen that the right to freedom of association cannot be derogated from except on the grounds of the existence of a public emergency which threatens the life of a nation or threatens its national security, or for the purpose of protecting the rights and freedom of other persons. Thus, it is within the powers of the National Assembly to make laws overriding one’s right to freedom of association in extreme situations, so long as such laws meet the above stated conditions. This means that even membership of the Nigerian Army cannot be deemed compulsory for anyone except in extreme situations.
The foregoing begs the next question: Is the Legal Practitioners Act (LPA) an Act made pursuant to Section 45 of the 1999 Constitution?
Obviously, the answer is no. Perusal of this Act will immediately reveal that the intention of the lawmakers as regards this Act is to amongst other things, literally provide for the existence of lawyers and regulate the legal profession through regulatory bodies established thereunder. Thus, the Act is not made pursuant to the derogatory section of Chapter 4.
Instead, the LPA is actually 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. In exercise of this power, a governing Council (the General Council of the Bar) was established and charged with the general management of the affairs of the profession. Thus, 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. So, no, the LPA is clearly not an Act made pursuant to Section 45 of the 1999 Constitution.
But why then does it seem like the NBA is the body charged with the management of the affairs of the law profession in Nigeria? If you read section 1 of the LPA, you would see what has led to this confusion.
Section 1 of the LPA (LPA) LFN CAP L11 2004 provides:
- 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 one thing is clear, i.e that the General Council of the Bar is the body charged with a duty. What is not clear though is why the Bar Council is charged with the general management of the affairs of the NBA, instead of the general affairs of the legal profession in Nigeria.
Why have the lawmakers limited the power of the Bar Council to the “general management of the affairs of the Nigerian Bar Association” as opposed to charging it with the “general management of the affairs of the law profession”? Other laws such as the Medical and Dental Practitioners Act (MDPA), 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. The website of the NBA does not help the situation. It described the body as “the umbrella professional association for all lawyers called to Bar in Nigeria”. It does not say whether its membership is mandatory or voluntary. 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. This purported presumption that all lawyers must be members of the NBA is clearly unconstitutional.
This is even more confusing because no provision in the LPA (or any other law) actually establishes this association. Neither does any law make membership of same mandatory, at least not in a manner known to Nigerian law. Indeed, the Body of Benchers, the Bar Council, and the Disciplinary Committee are bodies clearly established under this Act.
The great number of mentions enjoyed by the NBA in the LPA and RPC cannot in my opinion, serve as the basis for overriding the lawyer’s right to freedom of association; a fundamental human right. Derogation of this right must be in accordance with the principles of law. Thus, a presumption that all lawyers are “automatically” members of the NBA violates Section 40 of the Constitution.
If the intention of our lawmakers was the establishment of a mandatory association which would be charged with the management of the affairs of the legal profession, they have not made that clear. A fundamental right such as the right to freedom of association cannot be derogated from in this manner.
The concept of mandatory associations is not alien to democratic societies. In some countries (Kenya for example), some professions are regulated through mandatory associations which serve as governing bodies for the profession. Thus, it can be said that professional associations can be either voluntary or mandatory. If mandatory, this would mean that one must be a member of such an association in order to practice the concerned profession.
It is to be noted that when an association is to be charged with the management of the affairs of a profession, such an association is expressly established by legislation and same must be empowered accordingly. And because such legislations have the tendency to derogate from the fundamental right to freedom of association, it is made subject to several legal principles of general application.
In consequence of the foregoing, since the NBA is neither a body made pursuant to Section 45 of the 1999 Constitution, nor is it a body established under the LPA (and empowered as a mandatory professional association), 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 lawmakers chose to regulate the law profession by creating regulatory bodies. This option has also been used in regulating other occupational professions in Nigeria; an example is the Medical and Dental profession. Thus, Section 1 of the LPA can be blamed for the confusion that has caused many lawyers to believe that the NBA is a mandatory association.
To make sense of Section 1 of the LPA however, perhaps the view to adopt is to interpret same to mean that the Bar Council is empowered to govern all members of the law profession and not just members of the NBA but as we can see, the LPA does not say so. Instead, it purports to presume that all lawyers are members of the NBA by implying same.
The interpretative principle operative here is that “laws imposing limitations on the exercise of human rights must be clear and all limitation clauses shall be interpreted strictly and in favour of the rights at issue.” Section 1 is therefore unconstitutional at least to that extent. Thus, any argument to the effect that membership of the NBA is mandatory for lawyers cannot stand in the face of this legal vacuum.
Therefore, until an amendment is made, the role of the NBA in the law profession is in my opinion; at best limited strictly to the functions given to it by law (an arrangement which itself may be found offensive to administrative law). Sadly, the question above has never directly been in issue before the Court and so has never actually been decided.
The case of Chief Gani Fawehinmi v. NBA (1989) supports this view. In that case, Oputa JSC stated that “the NBA was not created by any Statute.” However, the Supreme Court did not go into considering the validity of the functions and powers given to the NBA as the learned Justice went on to say that those were “not the subject of the present controversy.”
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. Thus, 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. This is why the seal and stamp is compulsory. It is not because the NBA said so, but because the Bar Council does.
That no lawyer can be pre-empted from joining the NBA does not mean all lawyers must necessarily join the association. Thus, if one, in exercise of her fundamental right to freedom of association chooses not to be a member of the NBA but wants to practice law, she is protected by at least the Constitution of the Federal Republic of Nigeria, the African Charter and the UNDHR. However, such a lawyer’s affairs are subject to regulation/discipline as provided by the LPA and so she is bound by the RPC. What our law contemplates is that you may choose not to be a member of the NBA, but you cannot choose not to be regulated by the Bar Council; a separate and distinct body from the NBA. No one should be forced to pay money to an association if they want to have a livelihood in their chosen profession especially if such money is used to advocate causes they do not believe in.
At any rate, what is mandatory is that to be a lawyer, one must be called to the Nigerian Bar, which is a body itself, membership of which is “automatic” for all lawyers. This body called the Nigerian Bar is separate and distinct from the NBA. Please see section 4 of the LPA. Membership is deemed automatic here because by virtue of being qualified and entitled to practice law, naturally and compulsorily, you are a member of the Bar.
In the light of the foregoing, compulsory membership by way of 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. No matter how foolish the idea of choosing to be a lone wolf might be, our fundamental law guarantees the protection of this right; in this context, the right to be left alone.
For the purpose of regulating the Bar, the Bar Council is what is expressly created and empowered accordingly. The LPA did not create a mandatory association to serve that purpose. It is this state of affairs that has encouraged some persons in other professions to register a Non-Governmental Organisation/incorporated trustees at the Corporate Affairs Commission and somehow convince professionals that they must belong to their association in order to practice their chosen profession. This is unacceptable. You would agree that the legal profession ought to be a shining light and not an example of this anomaly. This is indeed an irony. We need to remove this log in our eye so that we can remove the speck from our brother’s.
Until the NBA is made a statutory body properly so called, and empowered to serve as a mandatory association, my view is that this association and all other professional bodies alike, should coax people to join and not hold themselves out in any way that may suggest that membership is mandatory. In fact, like the American Bar Association, the NBA should expressly describe itself on its website as a “voluntary organisation” and urge lawyers to join by giving reasons/incentives to join.
Originally published at Seun Lari-Williams.