The Bar in defence of democracy
The Bar Association is the sentinel of democracy especially in nascent democracies such as Nigeria’s. Lawyers and the Bar Association must be at the forefront of efforts at democratic consolidation. As Oko observes, there is no greater challenge facing the legal profession. leadership of democratic societies, adding that “His skill in solving disputes among people can be turned to the solution of disputes among groups.”
It was Robert Dahl who said that achieving stable democracy isn’t just fair-weather sailing; “it also means sailing sometimes in foul and dangerous weather.” In Africa, democracy has proven to be a treacherous slope, a minefield of sorts, to be approached with the greatest caution. The reasons are rooted in the antecedents of democratic experiment. That it took the sweat, blood and tears of many patriots to reclaim the political space from military adventurists is a testament to our ungainly democratic experience.
As we roll out the drums to celebrate “Democracy Day,” it is imperative that we pause to reflect on the quality of our democratic experiment and the role of lawyers and the Nigerian Bar in fostering democracy. A pointer to the fact that it is not yet uhuru was graphically depicted by renowned political commentator Larry diamond when he argues that Nigeria occupies ‘an ambiguous or disputed space between democracy and overt authoritarianism. They have a multiparty electoral system, with significant opposition. They have some space for civil society and intellectual dissent. However, individual and associational freedoms are under such mounting pressure, or elections are so riddled with fraud, or the arenas of political opposition and competition are so constrained and intimidated by the domineering power of the incumbent, that it is difficult to call the systems democratic, even in the minimal sense.’
This sobering verdict is consistent with scenarios in fragile democracies and developing countries. Instructively, lawyers are compelled to practice within this milieu. As Okechukwu Oko succinctly puts it, while lawyers in advanced democracies generally practice within politically stable and economically viable societies with fairly well developed legal systems, their counterparts in developing countries “work in a difficult and increasingly unstable environment surfeited by political instability, depressed economies, ethnic and religious tensions, inefficient legal systems, corrupt judiciaries that have been unable to insulate themselves from partisan and ethnic pressures, and by a cynical, even distrustful civil society highly ambivalent about involving lawyers in its affairs.”
It has also been said that eternal vigilance is the price of liberty. This throws up the critical role of lawyers and the Bar Association in consolidating democracy in a developing country like Nigeria. Mr. Femi Falana (SAN) underscored this primal role when he said: “In an oppressed society like Nigeria it is the duty of lawyers to defend the defenceless, protect the rights of the people, guide against all forms of oppression and inhuman treatment. The lawyer as an individual or body of lawyers in any nation must live up to his or its responsibilities as a dogged fighter of the oppressed, as a beacon of light that will penetrate the darkness of the environment, as a courageous voice of the hopeless and heartless and, perhaps, the sane and lonely voice that will bring powers and principalities to the path of rectitude whenever they go wrong.”
Chief Wole Olanipekun (SAN) validated this point when he said at his inauguration as NBA President that “Our profession constitutes the most important vessel in the sustenance of our present democratic experiment, nay in the enthronement of democratic cultures in our land. If Nigeria is to stand tall in the comity of nations or if she is to express a respected opinion within the civilised countries of the world, our democracy must be anchored on the rule of law. In this wise, the legal profession must live by examples, purify itself, get rid of the bad eggs within it and use its vintage and vantage position to instill order and restore discipline in our national life.”
It is in the enlightened self-interest of lawyers in particular to ensure that democracy thrives. It is only in such a stable environment underpinned by law and order that lawyers can practice their trade without let or hindrance. It has been said that lawyers reach their fullest potential when the society’s legal and institutional framework is allowed to blossom. As Okechukwu Oko has rightly observed, lawyers cannot thrive as effective agents for democratic reform when they live and practice in a cultural milieu dominated by violence and anomie.
Accordingly, it is perhaps a natural expectation by other stakeholders that lawyers will be at the forefront of efforts to defend democracy and the rule of law. Indeed, it is this expectation that has earned the legal profession and the Nigerian Bar Association (NBA) several sobriquets, including the “bulwark of our nascent democracy,” “voice of the voiceless,” “defender of rights and protector of liberties,” and “conscience of the nation.”
While the NBA has had a rich history of activism in defence of democracy, its role in this regard has been dotted by several pockets of potholes on the road to Nirvana. Reflecting on the golden years of the Bar, Falana said: “Alao Aka-Bashorun, Gani Fawehinmi (SAN) and Olisa Agbakoba (SAN) and a few other lawyers were in the forefront of the titanic battle against military dictatorship in Nigeria. I have mentioned these lawyers to demonstrate that the legal profession has contributed positively to the development of many societies.” On his part, Agbakoba also identifies the Aka-Bashorun era and the battle by the Bar and Bench some two decades ago to free then detained Fawehinmi and Falana among others as some of the finest moments for the Bar.
But this rich legacy has come under severe attack lately, with many critics arguing that the Bar Association has derailed from its divine mandate as the foremost defender of our democracy, civil rights and the rule of law. Indeed, there are strong indications that this dubious legacy of the Bar Association is long standing. Agbakoba had observed two decades ago that “save for these momentary intervals and short-lived solidarity, the Bar Association has consistently maintained a conspiratorial silence in matters affecting the welfare of the people,” perhaps only capped by the donation of N10 Million to the Bar by then military junta in ‘appreciation’ of its “non-confrontational tenure.”
Accordingly, the Bar Association has been receiving flaks lately for what many perceive as a less than vibrant confrontation with undemocratic and reactionary forces. In a searing diatribe on the role of the Bar in our recent history, a leading newspaper asserted thus: “Unfortunately, the NBA that we have seen in recent years, especially under the current leadership, is a caricature of what the association used to represent. The NBA, which had hitherto played a critical role in the political development of our country, has become a shadow of itself, either because its leadership is getting involved in partisan politics or because it has no clue as to how best to leverage its influence on the national stage. For example, on many occasions when the public expected the NBA to intervene on burning national issues, especially those dealing with law and/or its perversion, the body has either been disappointingly quiet or has taken sides with the authorities.”
Some Bar leaders have also come down hard on the Bar Association concerning its role in vindicating its motto of “promoting the rule of law” and advancing the frontiers of democracy. Speaking the minds of many, Falana said: “Civil rule of barely two decades was characterized by gross abuse of office by the political class. The democratic rights of the people were violated with impunity. A key impediment to the consolidation of democracy has been the manipulation of the electoral process. The rule of law has been treated with disdain by governments which engage in executive lawlessness and disobedience of court orders. Apart from activist lawyers who have consistently resisted authoritarian rule the NBA has failed to put up a stiff resistance against the subversion of the rule of law in the country.”
While Olanipekun has rightly noted that the drafters of the NBA Constitution “wanted a total break from the past when, in some instances, the Bar leadership was subservient to the Executive Arm of Government, dancing to its tunes and prostrating to its whims and caprices,” Agbakoba is certain that an organised, articulate and more forceful Bar Association can play a concrete role in upholding and protecting human rights and the welfare of citizens. “This is necessary,” he argues, “if institutional democracy must succeed in Nigeria.”
It was the Honourable Justice Augustine Nnamani, JSC (as he then was) who said that “a courageous, honest, industrious, vigilant, independent, knowledgeable Bar is a necessary instrument for the protection of the rights of the society.” It is conceded that the legacy of the Bar Association as a foremost defender of civil liberties and the bulwark of our nascent democracy has been both glorious and dubious. Unless lawyers and the Bar Association seize the gauntlet once more to restore the glory days of the Bar as the sentinel of democracy, both risk public opprobrium and irrelevance. This is a fate we can ill afford.
I however believe that among Nigerian lawyers, there is no dearth of courage and initiative in dealing with the issue at hand. It was John T. Berry who eloquently captured the courage of the Nigerian lawyer when he said: “In Nigeria I saw some of the worst of human conditions, and some of the very best. The best was exemplified by lawyers, who under the toughest of circumstances are fighting to create a system of justice that decides disputes not by guns or planes crashed into buildings, but by the rule of law. These honest, bright, and courageous men and women are engaged in a daily and dangerous struggle to create what many of us too often take for granted. As bright and well-educated people, they could go to other countries and make far more money, under much safer conditions, but they believe that fighting for the rule of law in their homeland is more important.”
Adekoya is a respected lawyer and Senior Advocate of Nigeria.
Funke Adekoya