Managing Partner of SPA Ajibade & co. and a former Presidential Candidate in the last NBA election, Dr. Babatunde Ajibade, SAN, FCIArb. has submitted a Memorandum to the Nigerian Bar Association Electoral Reform Committee.
The masterpiece sighted by BarristerNG, enumerated recommendations for a better and more credible Elections.
Below is the full Memo
Memorandum on Electoral Reforms in the Nigerian Bar Association
Thank you for your invitation to submit a memorandum on electoral reforms in the Nigerian Bar Association (“NBA”). As a contestant in the immediately preceding election, I have recent and relevant experience of the shortcomings in the current system and I am pleased to share my recommendations for reform hereunder.
- . Integrity of the Voters Roll/Register
1 .1 Background
The integrity of the voters’ roll/register is the lynchpin of any credible election. Under the current NBA Constitution, voters are required to have paid their Bar Practising Fees (“BPFs”) and Branch Dues as and when due for the year in which the election takes place. This is stipulated in section 2.2(f) of the second schedule to the NBA Constitution 2015 (as amended). The due date for payment of these fees is on or before 31 March and this is stipulated in section 9(1) of the Rules of Professional Conduct 2007 (“RPC”) for BPFs and in section 3(3) of the Uniform Bye-Laws for Branches contained in the third schedule to the NBA Constitution. Thus, the first step in securing a credible election is to have an efficient means of ascertaining the names and identities of members who have met this requirement as soon as possible after the cut• off date of 31 March in the election year.
1.2 Areas of Concern
1.2.1 There have been allegations of manipulation of lists of financial members of various branches by their Branch Chairmen and other Executive Committee members. Aside from the allegations of manipulation of lists of financial members by some branches, record keeping has been a major problem with the NBA and its branches. It is sad that the NBA and/or its branches do not have a clean database of the association’s members and that attempts have to be made in each election year to build a database from scratch. This, undoubtedly, creates significant challenges leading to many eligible voters being disenfranchised and to allegations that ghost voters are injected into the system to inflate the votes for particular candidates.
1.2.2 In the last elections, for example, there were different versions of the voters’ lists with significant complaints of wrongful omission and inclusion of names in respect of each version, including the ubiquitous member “Opening Balance”!
1.3 Recommendations
1.3.1 I recommend that the NBA leverage on technology to resolve this recurring issue. Currently, the NBA national body is able to ascertain the names and identities of members who have paid their BPFs by 31 March in each year with ease. This is because members are directed to pay their BPFs into a dedicated account with a designated bank and to indicate their names, branch and enrollment number on the payment slip. Thus, all that the NBA national requires to ascertain the identities of members who have paid is a print out of the statement of account at the close of business on 31° March.
1.3.2 The Uniform Bye-Laws for Branches should be amended to compel NBA Branches to also open dedicated accounts for receiving Branch Dues in the same way that NBA National receives BPFs. As with national, all payments of Branch Dues must reflect the name and SCN number of the member paying. Once this is done, all that will be required to ascertain who paid as and when due will be a print out of the Branch’s bank statement.
1.3.3 I recommend that the Uniform Bye-Laws for Branches should stipulate a short fixed period after 31 March in an election year in which the statement of the Branch Dues account for each Branch will be forwarded to the Electoral Committee of the NBA (‘ECNBA”), failing receipt of which the members of that Branch will be disqualified from voting in the national elections for that year.
1.3.4 Sequel to the above, a competent audit firm should be given the mandate to compile the list of eligible voters based on a cross• referencing of the statements of account of the NBA National’s dedicated BPF account and the dedicated Branch Dues accounts of the NBA Branches. If this exercise is carried out immediately after the 31 March cut-off date for payment of BPFs and Branch Dues, the NBA will have a conclusive and credible voters’ roll/register well in advance of the elections that are to hold in July.
2. Money Driven Campaigns
Background
As members of the most noble of all professions, we are expected to set an example for the rest of society by our conduct. Unfortunately, NBA elections have attained notoriety as being monetized especially for the offices of the President and the General Secretary. Aspirants are expected to travel to the majority of the NBA branches (currently 125), make donations to branch law weeks, branch projects and become emergency philanthropists to curry favour of voters. Indeed, there are allegations of direct cash inducements being demanded and given to voters by aspirants to elicit their votes.
2.2 Areas of Concern
2.2.1 I am of the view that selecting the leadership of a professional association such as the NBA should be a function of the character and track record of the persons seeking to lead, their contribution to the profession and the content of their proposed programmes for the association and not a function of the depth of their pockets.
2.2.2 The menace caused by the monetization of NBA elections has been recognized by some of the provisions in the election guidelines contained in the second schedule to the NBA Constitution. Specifically, section 2.3 (f), (g) and (h) seek to regulate the extent and the means by which candidates may campaign. However, these provisions are not sufficiently detailed and they have been observed more in the breach in previous elections than in obeisance.
2.3 Recommendations
2.3.1 I am of the view that the provisions of the election guidelines need to be a lot more detailed and prescriptive of what candidates for election into national offices in the association can and cannot do and what branches, fora and sections of the association must not do in an election year. A non-exhaustive list of some of the suggested dos and don’ts are as follows:
(a) candidates for elective office should be prohibited from making any donations, either in cash or kind, to any branch, forum or section of the NBA in the calendar year leading up to an election;
(b) branches, fora and sections of the NBA should be prohibited from soliciting contributions/donations/sponsorship of any sort from candidates who have signified an intention (whether formally or informally) to contest into any national office;
(c) candidates who have signified an intention (whether formally or informally) to contest for election into any national office should be prohibited from paying physical visits to any branches of the association or to any offices of members of the association to campaign;
(d) the ECNBA should send the manifestos of the candidates directly to all the eligible voters and candidates should also be able to circulate their campaign materials electronically through online platforms;
(e) the ECNBA should organise debates, either physical or virtual, to be held between the candidates in each of the zones recognized by the NBA Constitution for aspirants to the office of President and General Secretary while a single nationwide debate can be scheduled for aspirants to other offices. In this day and age of technology, I believe those who are genuinely concerned with having good leadership will take out time to watch such debates and be able to deduce from the manifestos and reputation of the aspirants, the persons they feel can do the job.
2.3.2 For these prescriptions to have any impact however, the ECNBA must establish that it has the will to enforce the regulations put in place. As I note in 2.2.2 above, the current guidelines contain some prescriptions and the ECNBA issued additional prescriptions in the run up to the last elections. However, these prescriptions and guidelines were flouted with seeming impunity, thus rendering them useless for their intended purpose.
2.3.3 There are concerns that despite the notoriety of the flouting of these guidelines (including undisputed evidence circulated on social media), the ECNBA failed to act, on the basis that it had not received a petition. The ECNBA should take a much more robust approach to protecting the sanctity of the electoral process, otherwise establishing rules and prescriptions will be an exercise in futility.
3. Voters Verification Process
3.1 Background
Since the inception of electronic voting by the NBA, one major source of concern is the process of voter’s verification by the ECNBA as this has led to disenfranchisement of many voters. This in turn has led to voter apathy as the number of voters in every election is far lower than the number of registered or qualified voters.
3.2 Area of Concern
In the 2020 election, the process of voter verification was tedious and complicated for many voters who had to visit the NBA portal to upload their credentials to be eligible to vote, even after paying their BPFs and Branch Dues as and when due as required by the NBA Constitution. The portal was slow and it took many days and several attempts for some members to complete the verification process. This resulted in many members becoming disenchanted with the process and losing interest in participating in the election.
3.3 Recommendation
The NBA must organize and maintain a standard database of all practicing lawyers and update same annually to reflect members that have complied with the requirements for practicing. This will aid the ECNBA in conducting the process of voter verification at election time and provide a seamless procedure for deciding the leadership of the NBA. The verification process for eligible voters must be made simpler with the use of modern technology and done immediately after the compilation of the voter’s roll and well in advance of the actual dates for the election to allow time for voters’ complaints to be dealt with by the ECNBA.
- . Voting Portal Integrity
4.1 Background
While the idea of electronic voting is a welcome development, the last three NBA elections have been controversial with allegations of rigging and manipulation of the process. These allegations have arisen due to alleged or obvious inadequacies in the capacity and integrity of the portals employed. A vivid example is the significant number of voters who were inexplicably unable to cast their votes in the last elections.
4.2 Area of Concern
The voting portal deployed in the last three NBA elections have proven to be unreliable. In the last election, candidates were kept in the dark as to the identity of the service providers and could not carry out an independent assessment of the competence, capacity or quality of the portal.
4.3 Recommendation
4.3.1 I recommend that the establishment of the voting portal and conduct of the actual elections should be outsourced to a professional organization with a reputation to protect, such as one of the big 5 consulting firms.
4.3.2 Also, the various candidates must be allowed to interrogate the quality, capacity and integrity of the portal through their chosen IT professionals.
5. Independence of the ECNBA Background
A major determinant of any electoral process is the independence of the electoral umpire from any form of interference or control by internal or external parties. It is their independence that will guarantee them making decisions without bias in favour of or against any candidate.
5.2 Area of Concern
Section 9 and section 2.1(c) of the NBA Constitution provide that the members of the ECNBA shall be appointed by the National Executive Committee (“NEC”). However, in all the elections that have been held under this Constitution, the sitting President of the NBA has unilaterally appointed the members of the ECNBA without recourse to members of NEC and NEC has merely rubber stamped this decision. This has resulted in the sitting President exercising an overbearing influence over the ECNBA and has made it impossible for the ECNBA to have the requisite independence.
5.3 Recommendation
I recommend that the provisions of the Constitution stipulating that members of the ECNBA should be appointed by NEC should be amended and be made more prescriptive. I am of the view that the absence of a laid-out procedure for the appointment of ECNBA members is what has enabled the NBA Presidents to usurp this power. I recommend that the members of the ECNBA should be a standing committee to be constituted ex-officio by the Chairmen of each of the Sections and Fora of the NBA for the time being, and with the Chairman of the ECNBA being the most senior of these members.
- . Audit of Result
6.1 Background
The last three elections of the NBA conducted via electronic means have been questioned by various interest groups as no provision was made for audit of the result to verify the authenticity of the data received from the server before declaring same as the true position of the wishes of the voters.
6.2 Area of Concern
The non-provision of audit of election result by the ECBNA or an independent committee has cast doubt on the authenticity of results declared by the ECNBA. The failure to permit audits of past elections, even when credible allegations of breaches of the election portal and compromise of the server have been made has caused reputational damage to the NBA and fuelled the perception that these elections were manipulated.
6.3 Recommendation
I recommend that, where it is demanded by any of the candidates, provision be made for audit of election results before declaring same as the final result after close of voting. The audit must be carried out within a stipulated time-frame by the ECNBA supported by an independent committee with the input of the various candidates.
- . Conclusion
7 .1 I thank you once again for the opportunity to contribute my thoughts on this important reform exercise. Our association has survived three contentious and fractious elections under the electronic voting and universal suffrage system established under its 2015 Constitution. Three attempts over six years is a sufficient period for us to identify and address all the teething problems that attend this system.
7.2 I am extremely concerned that the association will not survive a fourth fractious election process and this is what makes the work of this committee of such critical importance to the association. I wish you Godspeed in your deliberations and the wisdom to make the right reform recommendations. I also wish the leadership and membership of our association the wisdom to adopt and faithfully implement such reform recommendations as are made in the common interest of the association and all its members.
Yours faithfully,
Dr. Babatunde Ajibade, SAN
