NBA “fractionalisation”: Jibrin Okutepa, SAN, sorely missed the point

By Mike Ozekhome, SAN

I have just read the reaction of my good friend, Mr Jibrin Okutepa, SAN, to one of my reactions to the attempt by some “aggrieved” Northern lawyers to form a parallel NBA, as published in Saturday Tribune of 29th August, 2020. Mr Okutepa, SAN, sorely missed the point. To start with, he salivated over only a tiny phrase of my one line of my one-paragraph statement, wherein I said the move was “wrong and dead on arrival”. He carefully and comfortably isolated this phrase from and suppressed the full contextual words that immediately followed, wherein I said, “they have no reason to attempt ethnicising and religionising an innocuous dis-invitation of Mallam Nasir El-Rufai, Governor of Kaduna State. He was invited not as a Muslim or Northerner but as Governor. And NBA NEC bowed to popular pressure about his bad governance style, especially the daily slaughter of Southern Kaduna Christians and disinvited him.”

I wholly stand by this statement of mine, lock and barrel; hook, line and sinker. I do not want to believe that Okupeta deliberately suppressed my simple statement, by isolating the phrase “dead on arrival” from its natural environment in which I used it. I also do not want to believe that he may actually be one of the few Elders at the Bar who feel quite hurt by the outcome of the last NBA elections, and therefore want to use a front to break the Bar. For historical context, I totally disagree with him on his litany of historical narration, albeit highly skewed and one-sided. Mr Okupeta, SAN said, amongst others:

“When I read the views of some of my colleagues, and in particular the view of Chief Mike Ozekhome SAN, whom I love and respect, that formation of another Bar Association outside of NBA is dead on arrival, I feel terribly amazed. Such statements are not only provocative but are clearly not pacifying and reconciliatory.
“To make such statements in the face of recent events in NBA, is to add pepper to already aggravated injuries…
“They can and nobody can stop them. Let nobody say it is dead on arrival. Such statements are clearly inciting and provocative. You don’t dare a person who has capacity to do a thing and say he or she should do it let us.”

My one-paragraph interview which carefully counselled against “ethnicising” and “religionising” El-Rufai’s dis-invitation by the NBA NEC was what was actually conciliatory. It was, rather, Okupeta, SAN’s lengthy statement that was divisive and subtly encouraging a break-away faction by the above words, coupled with the following:

“The current leadership of NBA will do itself great good if it does not allow itself to be misled by stand that tends to promote the breakaway or divisions now too ripped to be plucked. There is a saying in my place that when a foolish man is holding gold in his hands on the man road, there is a wise man following him at the back. Those who have ears to hear should hear.”

Let me respond to Okupeta, SAN’s native saying also with a proverb in my own place, that “you have to first drive away the fox before you blame the fowl for wandering too far into the bush”. Let me add another proverb of my Weppa-Wanno, Etsako people, Edo State, that “you do not cut off your head simply because you have a headache”.

The issue I dealt with in my one paragraph interview which was clearly (I do not want to say deliberately) interpreted out of context was to simply counsel the young lawyers, as an Elder of the Bar, that “they have no reason to attempt ethnicising and religionising an innocuous dis-invitation of Malam Nasir El-Rufai, governor of Kaduna State. He was invited not as a Muslim or Northerner but as a Governor. And NBA NEC bowed to popular pressure about his bad governance style, especially the daily slaughter of Southern Kaduna Christians and disinvited him.” I stand by these words of caution.

Whilst eulogising the timely words of wisdom of respected Malam Yusuf Ali, SAN, and Chief Yomi Aliu, SAN (which I also largely share of), Okupeta, SAN carefully ignored an equally powerful view shared in the same interview, by Special Counsel to the Oyo State Governor, Chief Bolaji Ayorinde (SAN), who described the action of the Northern lawyers as one that “is not feasible because they do not have the support of other lawyers. It is not feasible. I think it is just a few individuals and they do not have the support of the members of the Bar”.

Let me be very clear on this. I do not support any balkanisation of the Bar. I am quite clear about this. As clear as a whistle. If Okupeta, SAN, however supports fractionalisation, he should come out plainly and say so. He should not use me as a convenient hanger to speak in parables, and subtly canvass for balkanisation of the NBA. I speak always as a conciliatory Elder of the Bar. That is why I have always refrained from publicly endorsing any Presidential Candidate (as many of them do with eclat). This is because it leads to polarization, unnecessary schism and mutual suspicion. Elders should canvass for votes for their candidates quietly, using behind-the-scene persuasion, so as to uphold the dignity of the profession.

My conciliatory stance had been made known much earlier, even before the one-paragraph Tribune interview. This was at the very Annual General Conference (AGC). I had strongly counselled and begged the aggrieved members not to form a new Bar; in the larger interest of the legal profession and country. Here was what I said, inter alia:

“So, when I see some of these people talking, I always wonder and say, where is your history…you think you can defend El-Rufai more than us. How many of you know that as far back as 2006, I defended Mallam Nasir El-Rufai free of charge pro bono when he was barred by the National Assembly from holding public office for the next ten years, I called him, I went to Court, I won it, both at the Federal High Court and up to the Court of Appeal. I did not charge a kobo. How many of you know that he is a personal friend of all and like Mr. President cried out at the NEC meeting, this man you people are talking about, he’s my own personal friend. I have nothing against him. Nothing had anything against him but everybody has everything against him in terms of his governance. Not necessarily as a Muslim or Northerner because he was never invited to the NBA conference as a Muslim or Northerner but as a Governor and it was in that regard that people had a disagreement.
“And for some people to turn around and start to religionize and ethnicize that, I think that is not fair. We must be honest with ourselves.
“For those trying to form an alternative Bar, please, let me use the oxymoron, make haste slowly…don’t go that way, when the tongue and the teeth disagree, inside the same buccal cavity, with the teeth biting the tongue, they sooner than later settle because they need each other for the tongue to help to speak up and for the teeth to help to masticate the food that the tongue itself will enjoy.
“So, drop all these issues of trying to form an alternative Bar, whether you call it New NBA or Progressive NBA, it’s not going to work. The progressive forces in this country within the Bar, the elders of the Bar, most members of not all, Senior Advocates of Nigeria who know where we are coming from will resist it.
“The reason is that when you begin to create a different Bar, let’s say for example Northern Bar or New Bar, the people very soon are going to start calling for Southern Nigerian Army, Southern Nigerian Navy, Western Nigerian Airforce, Eastern Nigeria Tax Authority, Midwest Maritime Authority. We will begin to hear of Southern Nigeria NNPC, Central Bank, where are we heading to, that is nothing but balkanization of Nigeria. God forbid Afghanistan, God forbid USSR, God forbid Sudan, God forbid Ethiopia, God forbid India-Pakistan and Bangladesh. God forbid another Nigeria-Biafra pogrom.
“I beg all of us, let us enjoy this legal profession that God has given to us.” Nothing could be more conciliatory than this. I stand by this my contribution at the NBA AGC.
Like few other commentators, I noticed how Mr Okutepa, SAN, dwelt extensively on the provisions of section 40 of the 1999 Constitution. Forget the fact that by virtue of section 45 of the same Constitution, the provisions of this section are not absolute, as they permit of restriction and derogation. No one is saying any group of people, including the protagonists of a “New Bar”, have no right to form an Association of theirs, or to assemble freely. I could never have said so. And I can never say so. Freedom of Assembly and Association is so trite and elementary. I even taught it to my 200-level students in my Constitutional Law class at the University of Ife (now OAU), as far back as 1983 (37 years ago). Some of my students that I taught this trite principle of law are today Justices and Judges of superior courts in Nigeria, including Court of Appeal, Federal High Court and various state High courts. All I am saying, and which I insist on, is that there is no real cause or reason for this break away. A father in teaching his children, should use the stick and carrot approach. I used the carrot approach to earnestly beg against fractionalisation (which I earnestly did at the AGC); and I also used the stick approach to warn about the dire consequences of such a needless action (as I also did at the NBA AGC). Unity is strength. A broomstick is easy to break. But, when broom sticks are bunched, they become difficult, if not impossible, to break.

When Leaders and Elders of the South South, South West, South East and Middle belt felt they had had enough of the glaring lopsided appointments under the present dispensation, they approached the Federal High Court, Abuja, for constitutional interpretation of certain provisions of the Constitution, to determine if such was right. I am one of their counsel. They did not clamour for a balkanisation of the country. They did not form a “New Nigeria”. They rather employed constitutional and legal means to attempt redressing and addressing their grievances. That is how it should be in a constitutional democracy.

These leaders have tons and trailer-loads of grievances in their kitty to also warrant asking and crusading for self-determination. After all, this is allowed by various international instruments, including the Universal Declaration of Human Rights, 1948 and the African Charter on Human and Peoples Rights. Take a look at the following ugly scenario in appointments in today’s Nigeria, and determine by yourself, if a mere dis-invitation of only one person by the NBA, out of over 50 other respected Northerners and Muslims that were invited, and who actually participated at the AGC, was enough for any aggrieved group to seek a “New NBA”.

The following composition of the present government (a mere tip of the iceberg) has the common denominator that they are ALL Northerners and MOSTLY Muslims (with the exception of very neglible Northern Christians): the Minister of Defence; Chief of Army Staff; Chief of Air Force; Minister of Police Affairs; Inspector-General of Police; Director-General (DG) of the DSS; DG, NIA; DG, DIA; the Acting Chairman of the EFCC (replacing another Northern Muslim, Mr Ibrahim Magu). Indeed, no Southerner, let alone a Christian, has ever headed the EFCC since its establishment by the EFCC (Establishment) Act of 2004.

Let us see more: the National Security Adviser (NSA); Commandant-General, Nigerian Security and Civil Defence Corps (NSCDC); Comptroller-General, Nigerian Customs Service (NCS); Comptroller General, Nigerian Immigration Service (NIS); Comptroller-General, Nigeria Correctional Service (formerly Nigerian Prisons Service); Controller-General, Fire Services of Nigeria; Director-General, NYSC; Minister of petroleum Resources (President Muhammadu Buhari himself); Group Managing Director (GMD); NNPC; DG, National Emergency Management Agency (NEMA); Chief of Staff to the President; Personal Physician to the President.

Then, check out the following Ministers (excluding many Ministers-of-State) on the “A” list of Ministries: Minister of Finance, Budget and National Planning; Accountant-General of the Federation; Attorney General of the Federation and Minister of Justice; Minister of the Federal Capital Territory (FCT); Minister of Agriculture; Minister of Water Resources; Minister of Aviation; Minister of power; Minister of Information and Culture; minister of Communication; Minister of Humanitarian Affairs, Disaster Management and Social Development; Minister of Special Duties; Minister of Education; etc, etc, etc. The nepotic and cronystic line of appointment is endless. It is visible in EVERY federal government MDA, where the lingua franca is virtually Hausa. Is that how to build a united, indivisible and indissoluble country? These appointments make us look like “Northern Republic of Nigeria” or “Federal Republic of the North”. Yet, no one has requested for balkanisation.

The last time I checked, we are supposed to be operating a Presidential system of government within a federal (not unitary) set-up. Section 14(1) of the Constitution provides that the “Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice”. Section 14(3) of the same Constitution is emphatic that “the composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies.”

Section 15(1) and 15(2) provide as follows:

“1. The motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress.

2. Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.”

Are we practising these? Can Mr Okutepa, SAN, honestly tell us that he is satisfied with the above horrific situation of master-servant relationship, national appointments, vis-à-vis the clear provisions of the Constitution? Have the other 373 ethnic groups (according to Professor Onigu Otite in his 1990 book titled, “Ethnic Pluralism and Ethnicity in Nigeria”) broken away, or threatened to secede because of their obvious marginalization, suppression, repression and oppression? Will it not boil down to fanning embers of discord and disunity if we were to continuously grieve over and dwell on this ugly spectre, rather than seek national integration and nationhood?

In saner climes, threats such as these would have been dismissed with a wave of the hand for being obviously ludicrous and uncalled for. But, this is Nigeria, where anything goes. This is a country where people place ethnic and religious considerations above reason, logic, facts and common sense. Such allegations, whatever their worth, must therefore be sufficiently and frontally addressed to assure all Nigerians that Nasir’s dis-invitation had no ethnic or religious undertones. I also personally attended the said NEC meeting. The motion for El-Rufai’s dis-invitation was raised by Northerners and mostly propelled and argued by them. Infact, it was Southerners, including a respected Pastor, Prof Koyinsola Ajayi, SAN, who also chaired the AGC Technical Committee (which had invited Nasir), and even the NBA President, Paul Usoro, that fiercely argued for Nasir’s retention, as a Speaker. But, they were greatly outnumbered. Ajayi, SAN, and Usoro, SAN, were forced to bow to the wishes of the majority. That is democracy – prevalence of majority opinion. There was no iota of religious or ethnic tone to it.

In any event, many other guest Speakers invited to the NBA conference included President Muhammadu Buhari; Chief Justice of Nigeria, Ibrahim Tanko Mohammmed; Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN; CAC Registrar-General, Mr. Garba Abubakar; DG, Nigerian Law School, Professor Isa Hayatu Chiroma, among others. This list of VIPs and speakers shows one common denominator: they are all Northerners and Muslims. No one reckoned with their ethnic origin and religion.

The invitation extended to these other distinguished Northern Muslim speakers and panelists (aside Mallam El-Rufai) should therefore naturally lay to rest, the asinine allegation that Mallam El-Rufai’s dis-invitation had anything to do with his Northern pedigree or Islamic faith. By the way, was El-Rufai ever invited to the said conference because he is a Muslim and Northerner? No. He was invited to the AGC as Governor of Kaduna State. And it was as regards his style of governance in that capacity that he was disinvited by the NBA NEC that overruled the Technical Committee (TCCP), which had invited him. And the NEC did this based on overwhelming rejection of his attendance by an angry Bar. The path of whipping up ethnic and religious sentiments in response to Mallam El-Rufai’s dis-invitation is therefore highly divisive, disingenuous and diversionary.

Those lawyers who have gone ahead to “form” a “New Nigerian Bar Association” should have been more creative and enterprising to look for a fresh name without any semblance howsoever to the NBA that they now suddenly loathe. Why the cutting and pasting? There is such a law known as “passing off”. With the existence of the African Bar Association (ABA), have they not heard of the Pan African Lawyers Union (PALU)? Some have argued that the “Association of National Accountants of Nigeria” (ANAN), was founded on 1st January, 1979, inspite of the existence of the Institute of Chartered Accountants of Nigeria (ICAN), founded since 1st September, 1965. But, it must be made clear that ANAN’s split with ICAN was simply professional and ideological; not religious or ethnic. That is why both ICAN and ANAN are populated by all Nigerian Accountants, without reference to their religion or ethnic background. This is the crux of my humble cautionary words: don’t balkanise the NBA along ethnic and religious lines. It will further magnify the nation’s existing and troubling fault lines. Other geo-political zones, ethnic Nationalities and professional bodies may come forward and begin to demand for South South Nigeria Medical Association (SSNMA); South West Council for the Regulation of Engineering in Nigeria (SW-COREN); South East Architects Registration Council of Nigeria (SE-ARCON); Middle Belt Nigerian Medical Association (MB-NMA); Southern Nigeria Navy; Northern Nigeria Air Force; Northern Nigeria Police; Northern Nigeria Judiciary; Southern Nigeria Inlands Water Ways; Northern Nigeria Civil Service; Southern Nigeria Railways Authority; South South Nigeria Ports Authority; North East Nigerian National Assembly; North West Nigeria Power Authority; North Central NYSC; South West Nigeria University Commission; South South Nigeria Ports Authority; Middle Belt Central Bank; Northern Nigeria Labour Union; Southern Nigeria Currency; Northern Nigeria Foreign Affairs; etc, etc, etc.

Question: what would have been left of this dawdling, fumbling, bumbling, stumbling, bungling and wobbling country? Answer: Nothing. I beseech those weeping more than the bereaved (dis-invited Mallam Nasir El-Ruffai) to sheath their swords. I therefore humbly pray that Nigerian lawyers, our respected Elders of the Bar, eminent Body of Senior Advocates of Nigeria; Benchers, the NBA, Council for Legal Education, the young lawyers in their thousands, the Academia, the corporate tendency of the Bar, all religious clerics and patriotic Nigerians, should dissuade those who are aggrieved and threatening to form a new Bar. It is an ill-wind that will blow the legal profession and entire country no good. Its ricochetting effect will be definitely ponderous and cataclysmic. This is my firm stand.