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NBA must work for its members, says Akpata

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Akpata

Mr. Olumide Akpata is a partner in Templars, Lagos. The lawyer, who is vying to lead the Nigerian Bar Association (NBA), in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYKWERE, explains that the confidence of lawyers in the association must be bolstered so they would be properly armed to fight for social justice, rule of law and judicial independence.

The Nigerian Bar Association (NBA) is considered docile these days in the fight against social injustice, rule of law, compared to the time of Alao Aka-Bashorun. What do you think is the reason for that and how do you change the narratives?
Under our Rules of Professional Conduct, our first duty is to defend, uphold and observe the rule of law. This is an individual duty. As an association, we also have a collective duty to defend the rule of law.

The NBA’s Motto is promoting the Rule of Law. The promotion and protection of the rule of law are also part of the aims and objectives of the NBA as provided for in section 3 of the NBA Constitution. But, in reality, what you find is that lawyers are typically divided into questions revolving around the rule of law and social justice. I think that our individual and collective failure to defend the rule of law and fight social injustice, as we were famed for doing a few decades ago, is attributable to something I would call ‘capture’.

Many lawyers have been captured either directly by politicians or indirectly by their self-interests, and this takes away their freedom to fearlessly defend the rule of law. Their concern is that if they speak or act against violations of the rule of law, social injustice or disobedience to court orders, the political players involved would be offended and limit their access to juicy briefs and high-profile appointments.

It is sad, but the NBA is an association made up of lawyers and unless we agree on the standard for the rule of law and present a united front, it would be difficult for us to defend the rule of law. Imagine how awkward it would be for the President of the NBA to come out and condemn executive lawlessness on behalf of the association, and then also find a team of very senior lawyers publicly disagreeing with the NBA President by defending executive lawlessness. When we complain about executive disobedience of court orders, we forget that the lawyers working for that disobedient executive are also members of the NBA. I will give you an example: we all know this government’s official position on the rule of law. It is postponed to whatever the government deems to be national security. Shortly after the removal of Honourable Justice Walter Onnoghen, an emergency NEC meeting was convened to determine the NBA’s official response. We could not agree on whether the removal was constitutional or not, even though it was manifestly unconstitutional.

The constitution is particularly specific on how a serving CJN may be removed from office and there is a process for the discipline of judicial officers accused of corruption. These processes were not followed, but very senior lawyers made very strange arguments to justify the President’s actions. We did not have a united front and could not effectively defend the rule of law.

On questions of social justice, you must have seen several reports of lawyers being harassed by the police whenever they go to the police stations to serve their clients. If we cannot defend our own entitlement to social justice, if we cannot defend our own human rights, it would be very difficult for us to do so for the general society. It is an unfortunate situation and the cleansing must start from within. To change the narrative as you have asked, I think that the NBA needs to do a lot of housekeeping first. We must agree on the standard for the rule of law and forestall any derogation from it within our ranks. We must put structures in place to protect our members from executive lawlessness so that they can freely defend the general society. We must use a mix of incentives and sanctions to downplay self-interest, eliminate capture and ensure that we uphold our duty to the rule of law, both individually and collectively.

You are aspiring to lead the Bar. How can the Bar leadership restore confidence in the association and make members identify more with it?
From my interactions with lawyers across the country, both young lawyers and the more experienced ones, I have noted a significant level of apathy towards the association. Many people have said to me that NBA only remembers them when the annual practising fee becomes due or when it is time to register for conferences.

According to them, the NBA has largely underperformed in meeting the expectations of its members, particularly expectations relating to welfare – broadly defined. An obvious example is the situation with the delivery of, and the expiry dates on, the stamp and seal. Even though some improvements have been recorded under the present administration, there is a lot of room to make the process much more efficient. There is an urgent need to deliver on the reasonable expectations of members in relation to their welfare and on the back of that revive our collective sense of identity. This will bolster confidence in the association and I am committed to achieving it.

To deliver on welfare programmes (including health care and life insurance, protecting members from police brutality and other forms of harassment, active inclusion of our colleagues who are aged, physically challenged, in salaried employment, or in non-traditional practice areas), the NBA Secretariat must have efficient institutional processes. I am committed to restructuring the Secretariat to make it reasonably fit for purpose and to promote synergy with all the branches of the NBA. In sum, my desire is to make the NBA work for its members and in doing so we can restore their confidence in the NBA.

The future of the profession depends majorly on sound legal education and training, ethics and professionalism of lawyers. How can the falling standards be addressed and how can legal education be reformed to meet the needs of our time?
The decay in our system of legal education is one manifestation of the decay in the general educational system in Nigeria, which has been made worse by our collective lackadaisical attitude towards the need to consistently update the curricula and effectively train our law teachers.

The curricula at the faculties of law and the Nigerian Law School are configured for the training of litigators and there is still a lot to be desired in terms of the quality of the training provided. You will be shocked to hear that the curriculum in use at my alma mater, the University of Benin, is substantially similar to the one used when I was a student there nearly three decades ago. Very little has changed.

A litigation-focused curriculum may have been fine about 30 years ago when our domestic market for legal services was not as diversified as it is today, when our economy was not as deep as it is today, and when globalisation was still at a nascent stage. Elsewhere, I have said that at an institutional level, our system of legal education does not appreciate the fact that the lawyer’s role is not limited to resolving disputes, but extends to the servicing of all aspects of the economy. An institutional appreciation of this role would spur us towards instating reformative educational policies to align our system of legal education with the needs of our growing economy.

First, we need to amend the curricula for primary and secondary legal education. Primary legal education at the faculties of law must be sufficiently wide and sufficiently deep to expose law students to both the traditional and the evolving areas of law. Technology and artificial intelligence, ethics in the 21st century, solid minerals and natural resources, modern medical and tort law, modern commercial and trade law, entertainment, sports, general media, alternative dispute resolution, and interdisciplinary areas like law and finance, law and economics, law and sociology should all be features of the curriculum at each faculty of law. The five years spent at the law faculties should be used to lay strong foundations in these areas, as well as in the traditional areas of law.

In addition to this, the training should also be practical and interactive because law is not practised in a vacuum. This brings me to my second point. We must train our teachers in modern legal pedagogical methods. Teaching law should be clinical and Socratic, and law teachers need to be trained in these pedagogical methods. They should be trained to appreciate the role that moot and mock sessions play in the training of lawyers, and these sessions should not be focused solely on litigation. There should be moots on alternative dispute resolution, on company meetings, on deal negotiations, etc. When all of this is done, you will find that premium-grade feedstock will be presented to the law school.

Third, secondary legal education at the Nigerian Law School and at law offices must be sufficiently current and practical, and the law school’s curriculum must reflect this. The law school provides vocational training and it only has 20 weeks of academic engagement to do that. The task of the law school is to groom legal practitioners. That time should be spent in refining and updating the practical skills learnt at the law faculties. Law offices in Nigeria are also expected to play a significant role in secondary legal education, but we have largely underperformed. This is why I laugh whenever I hear law offices complaining about legal training at the Nigerian Law School. We must take our share of the blame. As part of the law school’s curriculum, every student spends approximately 6-7 weeks fulltime at a law office and another 6-7 weeks fulltime in court. Many law offices do not provide the practical training that these students were sent to receive. Some shield the students from work, some banish them to the library and ask them to prepare for their final exams, etc. While we change the curriculum, train our teachers, and encourage clinical legal education, we, as practitioners, must also play our role in improving legal education.

On ethics and professionalism, I have alluded to the fact that ethics should be taught both at the faculties of law and at the law school. Currently, the first real contact that law students have with ethics is at the law school and the whole of professional ethics has only about 20 lectures.

In many ways ethics relates to morality, to humanity, to the ideas of right and wrong, and professionalism. If we are to be better lawyers, better human beings, and better defenders of the rule of law, then ethics and professionalism must be deeply rooted in our bone marrows. 20 lectures at the law school are not sufficient to deeply embed ethics and professionalism in our minds. This is why I am of the opinion that ethics and professional skills be broken down and taught incrementally throughout the five years at the law faculties and also at the law school. Besides modules on ethics, as part of a Continuous Legal Education (CLE) initiative, the only way to teach ethics and professionalism to practicing lawyers is by showing that actions have consequences. Whenever a lawyer behaves unethically, he or she should be properly sanctioned to serve as deterrence to subsequent unethical behaviour. Consequently, we must strengthen and fully resource the Legal Practitioners

Disciplinary Committee (LPDC) to ensure that it is independent in carrying out its disciplinary functions.
COVID-19 has foisted on us a new normal of virtual or remote court hearing. What is your view about this development?

In this day and age, virtual court hearings should come as no surprise. For a long time now, virtual hearings have been used in alternative dispute resolution settings and it has worked well. They have also been used in other jurisdictions, so there is no reason why it cannot or should not be used in formal court hearings in Nigeria. It is said that the trigger for our adoption of this modern method of justice delivery is a deadly pandemic, but I am happy that we have adopted it now. As we say, better late than never.

The introduction of virtual court hearings has divided Nigerian lawyers into three camps: those for, those against, and those ambivalent. Those against it argue that it is unconstitutional and violates the right to a fair hearing.

Without going into the technical details of their arguments, one can immediately see that taking and handling evidence may be difficult in virtual court hearings. On the other hand, those for it argue that the right to a fair hearing and other fundamental rights are matters of substantive law, while the structure of the hearing itself is a matter of procedure. The Constitution gives each head of court the power to determine the practice and procedure in their respective courts. Consequently, the issuance of rules on virtual court hearings is within the constitutional competence of the heads of court. Cases have been filed in court to determine these questions and we are all waiting for ultimate guidance from our courts. That notwithstanding, I think it is a welcome development. Mainstreaming virtual court hearings will reduce the need for lawyers to travel for miles to move innocuous motions or adopt a written argument, and that is just one of the many benefits. But a lot needs to be done to define its scope, sort out network and hacking issues, and to ensure that it does not impede the efficient delivery of justice.

For example, we can consider limiting its scope to motions in limine, interlocutory applications (particularly when they can be settled on documentary evidence alone), and adoption of final addresses. Courts sitting in appellate jurisdiction can also adopt virtual hearings when no new evidence is to be taken. When the courts hand down their decision on the constitutionality or otherwise of virtual proceedings, we can devise means to extend it to other types of proceedings like trials.

How can lawyers tap into new practice areas such as blockchain, cryptocurrency, artificial intelligence, etc considering the high number of unemployed and under-employed lawyers in the country?

For us, as lawyers, our stock-in-trade comprises our knowledge and our skill in delivering that knowledge. That is why I like to say that we are knowledge merchants. Without sufficient knowledge and skill, no lawyer would be able to tap into any of the niche areas of practice you have identified. The obvious starting point, therefore, is knowledge acquisition and capacity development. It is for this reason that I have consistently said that any conversation about the welfare of lawyers would be incomplete without serious consideration of issues relating to capacity development. Lawyers who understand these sectors and can signal their knowledge are automatically positioned to attract work and income. This will go a long way in reducing the incidences of both unemployment and underemployment.

There are several ways to build capacity in these evolving practice areas. As I said earlier, primary and secondary legal education has a huge role to play in laying strong foundations. But beyond that, lawyers are required to continually develop themselves professionally. So, a lawyer looking to develop capacity in these niche areas must participate in continuing professional development by taking relevant courses and training, and/or by partnering with experienced hands (whether foreign or Nigerian).

On the first point, technology and the commoditisation of technical knowledge have made the acquisition of knowledge significantly easier. A lawyer looking to develop capacity in any of these areas can take top-rated courses from global academic and vocational institutions from the comfort of their homes or offices. There are lots of web-based services providing free training courses and lawyers can take advantage of that. On the second point, I have often told the story of our experience with Mallam Nasir El Rufai, when he was the Czar of the Bureau of Public Enterprises. The Bureau was organising the privatisation of some state-owned entities and we put in our bid to advice on some of the privatisation deals. He said he was not going to give us work because we had no prior experience in advising on privatisations. He advised us to partner with foreign law firms that have the needed expertise. We did that; we worked with them and learnt from them.

Today, we have decades of privatisation-related experience under our belt and it is financially and reputationally rewarding. Those who felt insulted by the advice cannot say the same. Any lawyer serious about developing capacity in these areas can do so by studying up and learning from others. It may be difficult at the early stages, but it becomes rewarding in the medium to long term.

Do you think Nigerian law firms have the requisite skills and competence to compete globally with their present mode of operation and how can we reverse the narration?
I believe that a few firms are sufficiently skilled to advise on most of the complex cross-border transactions and disputes that we see today. But, as I have noted at several fora, we are operating way below our production possibility frontier for a number of reasons. First, there is still a considerable competence deficit.

The global market for legal services is very competitive and clients have become sophisticated. Clients need lawyers who can tactfully blend subject-matter expertise with astute commercial awareness, and only very few lawyers or law firms in Nigeria fit this bill. The net result of this is that over 90 percent of the law practices in Nigeria are not competent to compete globally or even within the West African sub-region. Initially, we were complaining about competition from skilled English and American lawyers. But that competition is about to increase significantly on account of the AfCFTA. Better skilled lawyers from other parts of the continent may now have access to our domestic market for legal services and crowd us out of business. On the flip side, the AfCFTA presents Nigerian lawyers with a rare opportunity. With the right skills, we should be the greatest beneficiaries of the AfCFTA. But we need to acquire those skills first. This underscores the pressing need for capacity development, and a lot of work must be put into it to ensure that we all have the skill set needed for effective competition at the global market for legal services.

The second issue relates to the operational structures of most of our law practices. Whilst some law firms have an international orientation in their service delivery models, their operational structures are purely domestic and would frustrate any attempt at transplanting their legal services to other markets outside Nigeria. This certainly limits their ability to compete globally. There are several models for practising law, but I favour a well-structured and well-managed partnership mostly because it allows for diversification and provides the kind of flexibility needed for cross-border competition.

The third issue is regulatory, or a negative consequence of existing regulation. Our Legal Practitioners Act has some barriers to entry, which have largely kept foreign lawyers out. To a lesser extent, our local content laws also attempt to preserve some work for Nigerian lawyers. I fear that the protectionism afforded by these laws have made many lawyers and law practices passive. I don’t think they understand the severity of the coming competition. On the whole, we need to ramp up capacity, we need to restructure the vehicles through which we practice law and we need to be alive to the competitive consequences of the AfCFTA and globalisation generally.

Nigerian judiciary is perceived as corrupt due to judgments that do not meet the expectations of Nigerians. This is worsened by the conflicting decisions of courts. What do you think about the mode of recruiting judicial officers?
Over the years, the Bench has been flooded with a lot of people who should not be there. Competence has largely been thrown out of the process and many judges have been appointed on the basis of relationships. This must stop. We have judges who have the knowledge and/or character deficiencies, and this erodes public confidence in the judiciary. The processes for recruiting and appointing judicial officers must be objective and transparent and it must be founded on competence. If the members find me worthy to occupy the office of President of the NBA, I will use that high office to liaise with the National Judicial Council and the State Judicial Service Commissions to ensure that appointments of judicial officers to the superior and inferior courts are objective and transparent.

Our electoral laws, many believe, encourages malpractices and the effort to amend the law to accommodate e-voting has not happened. In the alternative, will you agree with the creation of electoral offences tribunal to handle cases of electoral infractions by politicians?
I agree with it in principle if it will bring some sanity into our electoral processes, but I must state that it is not always about creating tribunals. It is about ensuring that they are effective and that their decisions have a bite. Under our current system, nothing stops us from prosecuting electoral offenders to serve as a deterrent to others. We also have situations were convicted and sentenced persons retained their seats in the National Assembly and continued to earn from our commonwealth. This does a lot of harm to the judicial system and erodes public confidence. So, establishing these tribunals is one thing, but ensuring that they operate effectively and efficiently is a completely different matter. If we fix our judicial system, electoral offences may properly be prosecuted in our regular courts. If we do not fix the entire system, the establishment of special tribunals may change very little.

How can the fight against economic and financial graft be strengthened and sustained in the light of the arrest of some Nigerians involved in cyber scams recently, and the bad image it is bringing for the country?
Any reform must start from the Economic and Financial Crimes Commission (EFCC) and the Police Force first. There are allegations of corruption against these institutions and it appears that they only fight financial crime when it suits them. I know that the court processes are slow, but how many notable convictions have been secured? The EFCC and the Police appear to have specialised in media trials and sensational arrests. That is not what is needed. We need credible investigation, credible evidence, professional arrests, and diligent prosecution. Look at the investigation and arrests of Invictus Obi and Hushpuppi. They are very professional and very efficient. The likelihood that these men would escape the law is almost non-existent. In Nigeria, the reverse is the case and an arrest for financial crime now boosts the arrestee’s social and political ratings.

We must also accept the fact that official corruption by public office holders provides the impetus for financial crime by young Nigerians. We need to reform the EFCC and the Police. They need to be independent and unbiased in discharging their functions. The current impression is that the EFCC is a tool of oppression wielded by the party in power. We need to strictly enforce our anti-corruption laws against every person found wanting irrespective of affiliation. We need to re-indoctrinate our EFCC and Police officers, and we need to change our value systems in Nigeria.


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