Ikpeazu SAN Paper GAINS OF THE 2015 GENERAL ... initially to identify what may be conceived as the gains of the 2015 General Elections in Nigeria and then subsequently attempt to meander

1  

THE ROLE OF LAWYERS IN SUSTAINING THE GAINS OF THE 2015 GENERAL ELECTIONS

BEING A PAPER DELIVERED BY DR. ONYECHI IKPEAZU, SAN, OON AT THE NIGERIAN BAR ASSOCIATION (NBA)’S ANNUAL GENERAL CONFERENCE ON MONDAY THE 24TH DAY OF AUGUST, 2015

INTRODUCTION The topic of this presentation, viewed from a very parochial perspective, may well be considered rather presumptuous for the reason that in any fierce contest such as at an election, there are bound at the point of resolution to exist the thrill of victory for some; and most certainly the agony of defeat for others. For those who fall into the latter category, it presents somewhat of an anathema to conceive of any gains which might be derived from the debacle or cataclysm associated with the loss of an election in a Presidential system of government which is characterized by a winner-take-all syndrome. For those who with the good turn of fortune bask in the beam of delight, the euphoria associated with the triumph may well shroud or obliterate the essence of the result which will render an objective assessment of the gains equally problematic. From a broad perspective, however, the consequences of an alteration of an existing order proceeds beyond a picayune approach or assessment; and a proper and objective focus must be maintained for a serene appreciation of the consequences of the emergent dispensation. I shall proceed initially to identify what may be conceived as the gains of the 2015 General Elections in Nigeria and then subsequently attempt to meander through the murky waters of deciphering what the role of lawyers is or should be in harnessing what gains there may be. On the 28th day of March, 2015 the Federal Republic of Nigeria held the fifth quadrennial general election since the full return to civil rule in 1999, following a rather extended malaise of military regime. The election was

2  

originally scheduled to hold on 14th February, 2015 but was postponed to 28th March, 2015 to the solicitude of many who conceived a subterranean agenda capable of obliterating the giant stride made in the previous sixteen (16) years. The evident reasons assigned to the postponement were the poor distribution of the Permanent Voter Card (PVC) and the desire to constrain the scourge of insurgency in the North Eastern States of the Federation. There is no gainsaying the fact that the general election in Nigeria rightly assumed a significant proportion both nationally and internationally for several reasons. Nigeria which was once advertised as a “show case of British ingenuity in nation building” arising from an uncanny fusion of over 480 ethnic groups, had indeed experienced great threat to total disintegration, preceded intermittently by election crisis. Nigeria is the most populous country in Africa and it is perceived that one out of every four black persons in the world is a Nigerian. Correspondingly, Nigeria by some statistics has the largest economy in Africa and is one of the leading oil producers of the world. The election was not only keenly contested but was observed with restiveness by the international community who perceived an unprecedented upset of an incumbent in a continent where such seeming welcome result is considered an aberration. It was equally a contest which saw what might have been a final stand by the substantial united opposition political parties who forged to a marriage with the primary aim of effecting a change and destabilizing the stranglehold of a political party whose members boasted was the largest political party on the entire African continent. The opposition ran issues-oriented campaign based on well articulated manifesto which happily elicited a spirited effort by the incumbent party to upgrade her standard and which ultimately raised the intellectual standard of the Nigerian politics to its highest limit, perhaps for the very first time. The outcome of the election is now history with

3  

Mohammadu Buhari scoring 15, 424, 921 votes while his opponent and the incumbent president came second with 12, 853, 162 votes. GAINS OF THE 2015 GENERAL ELECTION It is sometimes said that you must know failure before you know success. This being the case, the absence of failure in itself spells success or gains. On the same token, in a potentially volatile State, the avoidance of a catastrophe is indeed a gain and may well represent the ultimate gain. The Nigerian experience no doubt embraced this salient truth and much more, for out of the transition originated by the general election came the following gains to the Nigerian society: • Peaceful transition through the electoral process • Credibility in the psyche of Nigerians • Reduced pressure on the judiciary • Innovation in the electoral process • The promise of change

Peaceful Transition Through the Electoral Process The possibility of disintegration was a palpable danger as tension hung in the air for the months and weeks leading to the General election in a manner not before experienced in Nigeria. This was possibly induced by the fact that the unity of the opposition political parties, the foremost of which were the Congress for Progressive Change (CPC), the Action Congress of Nigeria (ACN), the All Nigeria Peoples Party (ANPP) proved rather formidable and spread effectively throughout the Federation. The opposition was very vocal and articulate and excited a resolute confidence, inspired by the Spartan reputation of its candidate. The candidate who by all acceptable standards exemplified astuteness, probity, accountability and restraint in matters of public care and charge, in spite of previous unsuccessful attempts remained unhindered in his determination to make a positive change. His character was believable, his intentions understood and his drive fussed effectively with the tempo of the moment. What manifested was a latent revolution like Vesuvius at its deceptive stage with a determined objective to unseat the incumbent within the precepts of

4  

democratic principles. The excitement shook the fabric of the nation with the result that emotions ran at their highest peak. On previous occasions where such sustained passion were generated, the end result were election crises which in the first instance, with other contributory factors, resulted in an interregnum that gave rise to the 1966 Military intervention which lasted until 1979. The second which occurred in 1983 was a repeat performance and further set the nation considerably back in its march towards sustained nation building. It was evident that throughout these dreadful periods, with the unusual but familiar pattern of the suspension of the prevailing Constitutions, the civil rights and obligations of the citizens were devastated. As destruction is invariably easier to attain than construction or reconstruction, the process of erasing the ills of the undemocratic process effectively deal very devastating and indelible harm on the society.

It is on this pedestal that the avoidance of degeneration of the society into the dreadful past through a peaceful transition on 28th March, 2015 can be best appreciated. It settled the anxiety which was not imaginary but rather clear and imminent. It indeed set the nation firmly on a perfect column of rectitude and stability which are indicia of reassurance for both domestic and foreign investors.

Credibility in the Psyche of Nigerians The psyche of the average Nigerian citizen was largely improved. Hitherto, tales of woe normatively accentuated each election process in Nigeria. Admittedly, there is nothing like a hitch-free election even in some seemingly democratic nations who had practised democratic principles and transition for extended duration. The siege in the American State of Florida and the “hanging Chad” experience which marred the victory of President Bush over the Democratic Candidate Alfred Gore at the American Presidential election readily comes to mind. For such imperfections to be embedded in the rubric of the story of each election, however, became a Nigerian phenomenon. Each dispensation had, not just its peculiar story to

5  

tell, but presented accounts which made the previous deplorable and dreadful experiments appear rather saintly. The average Nigerian at one time appeared fully resolved that his vote at an election did not and will not count. Such deplorable disposition strikes at the very root of the democratic process which thrives on the participation of the populace in the determination of their own affairs on the premise that the government is theirs, to be run by them and for them. It also breeds impunity and lack of sensitivity and accountability by, for want of an appropriate word, an “elected candidate” being fully cognizant that his occupation of the office was more of his own Will with the invidious cacophony of his demented co-plotters as against the serene Will of the people. The converse is that an office holder who emerges as such from a credible election will proceed with the details of governance fully assured that he must adhere to the platform on which he was elected as well as the aspirations of those who elected him. The 2015 General Election appeared to set the office holders on the later course. As was reported by one observer -

For the first time in Nigeria’s democratic history, this year’s presidential elections were really about the people and about their resilience to have their votes count. Special commendation and praise is not undeserving for their determination and patience on Election Day - especially in the midst of voting challenges. It takes a genuine interest and belief in the electoral process - especially after so many past discounting electoral experiences – …. The mandate protection mantra was played out on many fronts. In Bauchi, a city in the North Eastern Nigeria, citizens laid siege on the state level collation centre and stayed up all night to see the outcome of the collation process. Many citizens also kept tabs on social media and reports from electronic (online, video, radio and television) and print media (newspapers). The media also played a major role in delivering election related information … Citizens remained vigilant and alert even in the face

6  

of fears and concerns about the post voting results and how this might incite protest or violence.1

The situation no doubt prevailed across the country with varying levels of citizen participation in the determination of their own affairs, fully resolved that their votes cast at the respective polling units and counted and recorded in the respective Forms EC8A series would guarantee them effective and accountable representation. As the observer continued –

The success of the 2015 presidential elections was a momentous victory for Nigeria in its democratic consolidation journey. The successful election has answered the many questions that had been milling around before this event. Was the country going to survive such a closely contested election considering the levels of divisive politicking that had proceeded the polls? Was INEC’s innovation – the PVC and card reader – going to revolutionise elections, mitigate or totally eradicate electoral fraud? Would citizens ever witness and participate in free, fair, transparent and credible elections? Nigeria not only scaled through all these challenges, but did so commendably across several fronts…”

Innovation in the Electoral Process The Independent National Electoral Commission (INEC) in a most far reaching development, introduced into the accreditation and voting exercise the Permanent Voters Cards and the Card Reader device. There was indeed great misconception of what a card reader really was as well as the import of the sections of the Electoral Act, 2010 proscribing voting by electronic means. Before I embark on the definition of the relevant terminologies involved in this presentation, let me examine the sections of the law on which those errors were founded. The sections are: (i) Paragraph 15(a)(e) and (i) of 3rd Schedule to the 1999 Constitution

(ii) Section 49(1) and (2) of the Electoral, Act 2010 (as amended)

(iii) Section 52(1) (2) and (3) of the Electoral Act, 2010 (as amended)

                                                                                                                         1  2015  Nigeria  Elections:  The  gains,  the  challenges  and  the  lesions,  by  Joseph  Amenaghawin,  Premium  Times,  April  24th  2015.  

7  

(iv) Section 153 of the Electoral Act (as amended).

Paragraph 15(a) (e) and (i) of the 3rd Schedule to the 1999 Constitution deals with the powers conferred on INEC by the 1999 Constitution. The pertinent parts being sub-paragraphs (a) (e) and (i) provide thus -

15. The Commission shall have power to-

(a) Organize, undertake and supervise all elections to the offices of the President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;

(b) .. (c) .. (d) .. (e) Arrange and conduct the registration of persons qualified to

vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;

(f) .. (g) .. (h) .. (i) carry out such other functions as may be conferred upon it by

an Act of the National Assembly.

The complaint against the Card Reader relates to the use of a Card Reader for the purpose of accrediting the already registered voters. A register of voters must not be in hard copy. Indeed it is beyond doubt that the Register is contained in a data base from which hard copies may be printed as the occasion arises, and in that sense, the registration of voters and embedding same into an INEC data base can be described as an electronic process. That, however, is only an initial process and cannot transform the entire process of voting at an election into an electronic process.

Section 49(1) and (2) of the Electoral Act, 2010 provides thus -

Issue of Ballot Papers:

8  

Section 49. (1) Any person intending to vote with his voter’s card shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voters’ card.

(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.

With respect to the foregoing section, subsection (1) only requires the intending voter to present himself or herself to the Presiding Officer for the sake of accreditation. That process has not been abandoned. It is now the function of the Presiding Officer by virtue of subsection (2) to satisfy himself that the intending voter is duly registered before he will be given a ballot with which to vote. What the card reader did was to verify the Voter Card then authenticate the finger print based on the biometrics already embedded in the INEC data base. When authenticated, the Presiding Officer will be satisfied that the name of the person is on the Register of Voters on the strength of which the person will be issued a ballot with which to cast his or her vote manually. The vote will be deposited manually in the ballot box. The votes will then be counted manually and the result recorded manually.

Sections 52 (1) (2) and (3) and 153 of the Electoral Act, 2010 stipulate thus -

52. (1)(a) Voting at an election under this Act shall be by open secret ballot.

(b) The use of electronic voting machine for the time being is prohibited.

(2) A voter on receiving a ballot paper shall mark it in the manner prescribed by the Commission.

9  

(3) All ballots at an election under this Act at any polling station shall be deposited in the ballot box in the open view of the public.

And

153. The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof. (Emphasis supplied)

By virtue of Section 52(1)(a) of the Electoral Act, the process of voting was defined to be by open secret ballot. Subsection 1 (b) thereof specifically proscribed electronic VOTING MACHINE. It is contended that subsections 2 and 3 read together only clarified the proscription against the use of voting machine to cast a vote, by requiring that -

(i) The voter shall be issued a ballot paper;

(ii) The voter shall mark the ballot paper in the prescribed manner;

(iii) The voter shall deposit the ballot in a ballot box in open view.

The use of a ballot paper, duly thumb printed distinguishes the voting from one effected by means of a voting machine. It is important to note that what was proscribed by Section 52 (1) (b) of the Electoral Act was the “use of electronic voting machine” and nothing more. The Electoral Act contemplates that a person must be accredited before voting. The Act did not say that-

“The use of electronic accreditation machine for the time being is prohibited”.

The desire of the opponents of the Card Reader to read into the Electoral Act a provision that is not therein contained is most inappropriate. It is a legislative function to amend the legislation by either adding, subtracting or completely obliterating same. It is said that the function of the Judex is

10  

restricted to the interpretation and application of provisions of the statute and nothing more. In OBI v. INEC2, the Supreme Court per Aderemi J.S.C. held thus -

That power could hardly be lodged elsewhere. But, justice according to law which any good Judge must ensure he dispenses at all times, demands that even when he (the Judge) is seen to be free by the enormity of the power conferred on him, he is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or goodness or what colouration a piece of law should take. The Judge must always draw his inspiration from consecrated principles. The next question that follows, is, what are these principles: Judges, in the exercise of their interpretative jurisdiction, must only interpret the words of a statute or constitutional provision, where they are as clear as crystal, according to their ordinary and grammatical meaning without any colouration. It is true that courts are always enjoined, in the course of interpreting the provisions, to find out the intention of the legislature, but there is no magical wand in this counseling.

The intention of the legislature, or put bluntly, the intention of National Assembly at the Federal level or the State House of Assembly at the State level, is not to be judged by what is in its mind but by its expression of that mind couched in the words of the Statute. If at the end of interpretative exercise carried out on the provisions of Statute or Constitution, a judex’s personal conviction as to where the Justice and rightness of the matter lies is returned, that would make the judiciary lose its credibility, authority and its legitimacy. That will not be healthy for the development of law and its administration. I pause here to apply these principles to the …….

See also LADOJA v. INEC & ORS3 where Aderemi JSC held thus -

I have again carefully read the aforesaid provisions of the Constitution: the word “uninterrupted” was not used to qualify the four-year tenure to which the Plaintiff/Appellant was entitled as Governor of Oyo State. It is a

                                                                                                                         2  (2007) 11 NWLR (Part 1046) 565 at 643 (Para D-H)  3  (2007) 12 NWLR (Part 1047) 11 at 189 (para B-F)  

11  

firm canon of interpretation of the provisions of a Statute or the Constitution that words not used by the legislators must not be imported into the wordings of the provision by a “judex”, “Law making” in the strict sense of that term, is not the function of the judiciary but that of the legislature. To accede to the prayer of the Plaintiff/Appellant … will be for the judicial arm of the government to engage in an unwelcome trespass into the territory of the legislative arm of the government. I am quite conscious of the fact that occasionally laws passed by the legislators do not accord with the wishes of the people or may not meet with the requirements of the time. Let that defective law or law that does not meet with the aspirations of the citizens be put right by the legislators.

Having expressly used the term “voting machine”, it becomes imperative to ground this determination on the plain meaning of the term “voting machine”. In Merriam-Webster Dictionary the term is defined thus -

“voting machine”

A machine that you use to cast a vote and that records and counts all the votes made for each possible choice.

Full definition:

A mechanical device for recording and counting votes cast in an election” (Emphasis supplied).

From the foregoing, for a machine to qualify as an electronic voting machine, it must be a machine into which a person casts his vote and which records and counts the votes as they are cast. It cannot admit of any other process.

The term electronic is defined in the same dictionary thus -

“Electronic –

“Produced by the use of electronic equipment”.

When the terms are conjoined, it entails that an electronic voting machine must be a machine into which voters cast their votes and which produces

12  

the result by use of electronic equipment. The central point is that it relates to the act of voting and nothing more.

This is a far cry from what a card reader is. The term card admits of no ambiguity. The term “reader” is defined in the same dictionary as:

“Reader”

A machine that is used for reading text or information that is stored on film, tape etc.

For a Card Reader to qualify as an electronic voting machine, therefore, it must be shown that -

(i) It captures votes cast by individuals;

(ii) It records votes cast by individuals; and

(iii) It counts votes cast by individuals.

Accreditation and voting are two different processes at the same election. It is on this score that accreditation is said to last for a given time. Thereafter voting commences. It is clear that a registered voter who is accredited must not cast his vote at the election. He may simply walk away or simply refuse to vote after accreditation. The fact of his accreditation by a Card Reader or by whatever means will not count as a vote in favour of any candidate nor will it subtract from the votes earned by a candidate. Thus when the law makers in Section 52(1) of the Electoral Act specifically mentioned and prohibited electronic voting machine, they clearly contemplated the act of casting a vote and nothing more. It is pertinent to note that the decisions of superior courts4 to the effect that election involves a process constituting accreditation, voting, collation, recording etc do not change the foregoing contention. They would have been helpful to the opponents of the Card Reader if in Section 52 (1) (b) of the Electoral                                                                                                                          4  See the cases of FAYEMI v. ONI (2010) 17 NWLR (Part 1222) 362; INEC v. RAY (2005) All FWLR (Part 265) 1047; OSUNBOR v. OSHIOMHOLE (2009) All FWLR (Part 453) 1363; AJADI v. AJIBOLA (2004) 16 NWLR (Part 898) 1  

13  

Act, the law makers prohibited “the use of machine in the election process”. Again for fear of repetition, detailed attention must be paid to what was actually prohibited. What the law prohibits is “voting machine”. The cases did not hold that voting includes accreditation. What they held was that election includes accreditation, and rightly so.

Reduced Pressure on the Judiciary It is exhilarating but perhaps not to some that the 2015 general election was the first time when an incumbent president not only lost an election in Nigeria, but proceeded even before the final declaration of the result of the election to concede defeat. The reason he assigned to this was the need to eschew violence and further discord which had obviously dominated the polity in the months and weeks leading to the election. The reasons appeared genuine and received the respect, delight and acceptance of not only Nigerians but members of the international community some of whom had unearthed the odious accounts earlier foretold that the unity of the nation will span just 100 years, from the 1914 amalgamation of Nigeria. The gesture of the former president proceeded one significant step further. He expressed not just his acceptance of the result of the election but pronounced his determination not to contest the result in the presidential election petition tribunal by way of an election petition or any other means. Commendable no doubt it is, for indeed there were patent flaws which though may not have substantially affected the result of the election to the point of setting aside the same but which would have maintained a spirited attack on the credibility of the election which obviously would have diminished the sanctity enjoyed by the result of the election and the honour accorded to those who labored profusely to propagate it. Lest I forget, the People’s Democratic Party (PDP) who by the accepted judicial interpretations enjoyed the locus standi to present petitions, unlike the defunct Congress for Progressive Change (C.P.C.) who despite the decline of its candidate, contested the 2011 presidential election at the tribunal, did not file an election petition to challenge the 2015 presidential election. There is no doubt that the effect of a judicial contest of a presidential election or of any election for that matter, on the judiciary is quite enormous. Judicial Officers whose erudition had received unquestionable

14  

accolades had subsequently been subjected to quite undeserved pillory following decisions in such cases. Though there was no total “domino” effect on all the offices contested at the general election, the statistics of cases clearly show a remarkable decline in the number of election petitions initiated through the Federation. In that stead, the many judicial officers who would have been drafted to assist their over-worked brothers will remain in their respective primary assignments dispensing justice in the usual form. The empanelled Judges and Justices who are constrained by the harsh but necessary 180 days and 60 days limits for both trial and appellate proceedings will invariably have fewer cases to adjudicate upon within the circumscribed period. This encourages efficiency in the system which otherwise would have been the case in the midst of avalanche of contests of the results of the election.

The Promise of Change Promises are not alien to politics and politicians. Indeed promises can best serve as the second nature of politicians. What distinguishes one set of promises from another is the credibility of the person who made them as well as his ability and capacity to follow through. President Muhammadu Buhari with his declaration as the person who duly won the presidential election made two (2) acceptance speeches. The first was after his declaration, while the second was delivered when he received the Certificate of Return. There are ten (10) remarkable things in the speeches, namely5 -

1. President Jonathan was a worthy opponent. I extend my hand of fellowship to him. I look forward to meeting him soon, as we plan the transition from one administration to another. He will receive nothing but cooperation and understanding from me.

2. This was a hard-fought contest. Emotions were high. We must not allow them to get the better of us. This is not the time for confrontation. This is a moment that we must begin to heal the wounds and work toward a better future.

                                                                                                                         5  @  2015  Pulse.ng  

15  

3. Today, history has been made, and change has finally come. Your votes have changed our national destiny for the good of all Nigerians.

4. My team and I shall faithfully serve you. There shall no longer be a ruling party again: APC will be your governing party. We shall faithfully serve you. We shall never rule over the people as if they were subservient to government.

5. Our long night has passed and the daylight of new democratic governance has broken across the land. This therefore is not a victory for one man or even one party. It is a victory for Nigeria and for all Nigerians.

6. May the souls of those who died rest in peace. Let us take a moment of silence to honour all of those whose sacrifices have brought us to this fine and historic hour. As the results of the election have shown, their labor has not been and will never be in vain. Democracy and the rule of law will be re-established in the land.

7. I assure you that Boko Haram will soon know the strength of our collective will and commitment to rid this nation of terror and bring back peace. We shall spare no effort until we defeat terrorism.

8. Let us put the past, especially the recent past behind us. We must forget our old battles and past grievances – and learn to forge ahead. I assure you that our government is one that will listen to and embrace all.

9. I pledge myself and our in-coming administration to just and principled governance. There shall be no bias against or favouritism for any Nigerian based on ethnicity, religion, gender or social status.

10. You shall be able to go to bed knowing that you are safe and that your constitutional rights remain in safe hands. You shall be able to voice your opinion without fear of reprisal or victimization.

There was thus clearly the levitation towards-

-­‐ Reconciliation;

16  

-­‐ Enthronement of the Rule of law and Supremacy of the Constitution;

-­‐ Just and principled governance; and

-­‐ Eradication of discrimination based on ethnicity; religion, region, gender and social status

The foregoing set a rather lofty base for the ensuing progressive change in the society which can only be actualized by the co-operation of members of the society duly performing their ascribed roles. They essentially rotate around the establishment of the Rule of Law, without which there can never exist sustained order in an egalitarian society.

ROLE OF LAWYERS IN SUSTAINING THE GAINS The unique demands of the professional duties of a lawyer in any developed society makes it inevitable for the lawyer to be an instrumental catalyst of that society. As the operation of a society must necessarily revolve around the laws prevalent in it for the effective maintenance of stability, mutual respect among its inhabitants and workable order, the role of the law and the lawyer is essentially invaluable in both streamlining the actions of the inhabitants as well as in the enforcement of their rights. It is said that ‘men are not hanged for stealing horses, but are hanged that horses may not be stolen’. A lawyer generally is defined as

A person learned in the law; as an attorney or counsel, or solicitor; a person licensed to practice law. Any person who prosecutes or defends causes in courts of record or other judicial tribunals… or whose business it is to give legal advice or assistance in relation to any cause or matter whatsoever.6

This definition encompasses legal practitioners in all disciplines, such as those in the Ivory Towers, and the corporate world practicing as solicitors; those engaged in litigation as barristers or advocates, as well as those who simply utilize their University training in non-conventional areas, without

                                                                                                                         6  Blacks  Law  Dictionary,  5th    

17  

the benefit of being called as Barristers and Solicitors of the Supreme Court of Nigeria.

These individuals, if they are Nigerians, are first and foremost citizens of the country, who proceeded through their infant nurture and education training as members of the society, imbibing the various norms and mores prevalent in their environment. They are not born lawyers; but acquired their qualification and skills in the formal setting of Universities, the Nigerian Law School, as well as their exposure in the processes of applying the rudiments of their formal training. Such individuals invariably emerge, influenced by their exposure to the society from inception and their experiences leading to the elevated status where they must ultimately apply their acquired educational skills and experience as lawyers in the society.

General Duty of a Lawyer Dealing with the general duty of a lawyer, the Rules of Professional Conduct for Legal Practitioners7, which was issued pursuant to Section 12(4) of the Legal Practitioners’ Act8, defines the standards which a lawyer must comply with, in the process of practice of his profession. The lawyer is mandated at inception to “observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct and shall not engage in any conduct which is unbecoming of a legal practitioner”9. Yet, the lawyer is equally tied to a great level of fidelity in the relationship with his client which is no doubt fiduciary in nature. He is mandated to devote his attention, energy and expertise to the service of his client, and subject to any rule of law, to act in a manner consistent with the best interest of the client. In this process the lawyer is expected to10-

2(a) Consult with his client in all questions of doubt which do not fall within his discretion;

                                                                                                                         7  2007  8  1990,  as  amended  9  Rules  of  Professional  Conduct  for  Legal  Practitioners,  supra.R.1  10  Ibid.  Rule  14  

18  

(b) Keep the client informed of the process and any important development in the cause or matter as may be reasonably necessary;

(c) Warn his client against any particular risk which is likely to occur

(d) ……………………………………………………………………. (e) …………………………………………………………………….. (f) …………………………………………………………………… To the foregoing liberty, are remarkable constraints which are that –

15 (1) In his representation of a client, a lawyer may refuse to aid or participate in conduct that he believes to be unlawful even though there is some support for an argument that the conduct is legal.

(2) In his representation of his client, a lawyer shall –

(a) Keep strictly within the law notwithstanding any contrary instruction by his client and if the client insists on a breach of the law, the lawyer shall withdraw his service;

(b) Use his best endeavours to restrain and prevent his client from committing misconduct or breach of the law … and if the client persists in his action or conduct, the lawyer shall terminate their relations.

(3) In his representation of his client, a lawyer shall not:

(a) give service or advice to the client which he knows or ought reasonably to know is capable of causing disloyalty to or breach of the law or bringing disrespect to the holder of a judicial office or involving corruption of holders of any public office;

(b) File a suit, assert a position, or conduct a defence, delay a trial or take over action on behalf of his client when he knows or ought reasonably to know that such action would serve merely to harass or maliciously injure another;

19  

(c) Knowingly advance a claim or defence that is unwarranted under existing law, but he may advance such claim or defence if it can be supported by argument in good faith for an extension or reversal of existing law;

(d) Fail or neglect to inform his client of the option of alternative dispute resolution mechanisms before resorting to or continuing litigation on behalf of his client;

(e) Counsel or knowingly fail to disclose that which he is required by law to reveal;

(f) Knowingly use perjured or false evidence;

(g) Knowingly make a false statement of the law or fact;

(h) Participate in the creation or preservation of evidence when he knows or ought reasonably to know that the evidence is false;

(i) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent; or

(j) knowingly engage in other illegal conduct or conduct contrary to any of the rules.11

It is also prescribed that where in the process of representing a client the lawyer obtains unequivocal information to the effect that his client was engaged in fraud against a person or court, the lawyer ought to promptly inform the client to rectify the anomaly. Where the client refuses or fails to do so, the lawyer will be obligated to reveal the fraud to the person or court that is affected. Where, however, the information as to the fraud came to the knowledge of the lawyer from his client, the matter shall be treated as privileged, but if the perpetrator of the offence was not his client, the lawyer will be obligated to reveal the fraud.12

                                                                                                                         11  Ibid.  Rule  15(1)(2)(3)  12  Ibid.  Rule  15  

20  

On matters that are privileged, it is stipulated that all communications delivered by a client to his lawyer in the usual course of professional employment are privileged, for which the lawyer is under obligation not to-

-­‐ Reveal a confidence or secret of his client,

-­‐ Use a confidence or secret of his client to the disadvantage of his client,

-­‐ Use a confidence or secret of his client to the advantage of himself or of a third person unless a client consents after full disclosure.13

A lawyer may, however, reveal –

(a) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them;

(b) Confidences or secrets when permitted under [the] rules or required law or a court order;

(c) Intention of his client to commit a crime and the information necessary to prevent the crime;

(d) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.14

The duty to preserve such confidences and secrets extend to the associates in a law firm as well as employee.

Whenever engaged by a client, a lawyer is mandated to perform the duties for which he was retained to completion and must not withdraw or abandon same, unless he has a good cause, which includes –

(a) Conflict of interest between the lawyer and the client;

                                                                                                                         13  Ibid.,  Rule  19(1)  &  (2)  14  Ibid.  Rule  19(3)  

21  

(b) When the client insists on an unjust and immoral course in the conduct of his case;

(c) If the client persists against the lawyer’s advice and remonstrance in pressing frivolous defence; or

(d) If the client deliberately disregards an agreement or obligation as to payment of fees or expenses.15

Breach of any of the provisions of the Rules constitutes professional misconduct and exposes the lawyer to punishments as prescribed by the Legal Practitioners’ Act.16 Such punishments may include striking out the lawyer’s name from the roll of lawyers, suspension from practicing for a definite period or admonition.

Every lawyer who practices as such is bound by the provisions of the Act as well as the Rules. Some of the provisions may well be considered inconsistent with some other provisions in the sense that whereas the lawyer is free to exercise his professional judgment in the aid of a client in the course of his employment, the scope within which he may act is rather constrained by a duty owed the society to not only maintain integrity, but to abstain from practices which may be criminal in nature. Yet, confidences and secrets obtained from the client in the course of such engagement are privileged, especially when derived from the client. In the corporate world, if the client is the company, by extension, confidences and secrets derived from the employee in that process are equally protected. In our adversarial legal system which is invariably aimed at the protection of the interest of the client, it becomes obvious that the lawyer, in order to effectively discharge his duties as well as compete in his field, is expected to attain result for his client, which in the course of things, ought to entail satisfying the desires and aspirations of the client.

                                                                                                                         15  Ibid.  Rule  23  16  Cap  L11,  Laws  of  the  Federation  of  Nigeria,  2004  

22  

It can safely be concluded that the traditional role of a lawyer is in the main oriented towards the protection of the interest of his client. In this sense, the law is partisan. In the words of Henry Lord Borougham, a lawyer is –

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them, to himself, is his first and only duty, and in performing his duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go reckless of consequences, though it should be his unhappy fate to involve his country in confusion.17

While the first part of the rendition may well be a matter of fact and public knowledge, for indeed a lawyer is partisan, the concluding part which portrayed the presumed insensitivity of lawyers is arguably an unsustainable exaggeration. It equally is, with respect, myopic being focused on the discharge of the duty of a lawyer whose services have already been retained for a specific purpose. It did not take into account the fact that even in the discharge of that duty, the lawyer’s primary responsibility to a client is to render such advice that would be beneficial to the interest of the client, while highlighting the options available to the client in the pursuit of his parochial determination.

In the impressions of Justice Oliver Wendell Holmes of the Supreme Court of the United States of America –

… a lawyer sells his ability to predict the consequences of proposed and past conduct by the client, Holmes “bad man”. The bad man, every lawyer’s client for Holmes, cares nothing of the consequences of his actions for the public good, but only of the consequences he will likely reap at the hands of the public officials. The lawyer’s role for Holmes is to provide expert predictions of those consequences, and not to decline to serve the client if the client’s actions will harm others or the public but

                                                                                                                         17  Trial  of  Queen  Caroline:  Part  II  at  3  New  York,  James  Cockroft  &  Co  (1874)  

23  

rather to guide the client in his evaluation of the personal consequences of his actions, consequences imposed by public officials either in the form of prosecution or by courts as a result of private litigation.18

Thus for Holmes, the client is the “bad man” who is only concerned with his self interest without the effect of such interest on the society at large, while the lawyer in assisting the “bad man” cares nothing for the “niceties of Justice or public interest against those of his client”.19

Whichever way it is approached, it is beyond doubt that the legal system in which the lawyer, especially the Nigerian or American lawyer operates is adversarial in nature, where dispute must be resolved in favour of one party against the other. In which case, there is nothing unholy in a lawyer satisfying the aspiration of the client with the caveat that he must not do so in aid of commission of or projection of patently frivolous arguments. It is the ability to attain that lofty goal with repeated success that distinguishes one lawyer from the other. Without equivocation, it is that distinction that every person who engages in any form of pursuit of excellence ultimately desires.

Incidentally, no positive change or improvement can be introduced and established in a given society without effective and sustained effort, or commitment. It is this pedestal that the qualities which some find abhorrent in the partisan role of a lawyer, transform into positive assets. It is manifest that a lawyer advising a client takes control of the situation and invariably lays a leadership role in advocating the aspirations of his client. It is contended that leaders “create the impetus for movements by providing examples of action, directing action, and defining problems and proposing solutions”20. The constant habit of a lawyer is to identify the problem, define the problem with a view to discovering the tools for its solution. The lawyer then devices the strategies that will be employed in                                                                                                                          18  The  Lawyer  as  Catalyst:  Fordham  Law  Review  2009  Vol  77  at  1564  19  Ibid  at  1564  20  Robert  Michaels,  Political  Parties:  A  sociological  study  of  the  Oligarchical  Tendencies  of  Modern  Democracy  (1962)  

24  

the expulsion of the problem. If the problems in a society are not discovered, invariably no solutions can be projected. Identification of problems in the society is much deeper than the lay man’s everyday expression and complaints in the streets. In the medical sense, it can be likened to the difference between the ailment and its symptoms. Put in another way, it is the dichotomy between cause and effect. While the symptoms may be known, as indeed the effect of problem in societies are matters of public knowledge, identification of the cause or ailment invariably involves intellectual exercise which must take into account numerous originating or latent factors. Likewise the strategies for attacking such latent causes are equally matters that may involve considerable intellectual appreciation.

By the formal training of a lawyer, he is already well conditioned towards reading, research, public speech, analysis, flexibility, and versatility in approaching issues, factors which are indispensable in any spirited effort towards combating the ills in the society and effecting positive changes. With the tenacity of a lawyer in the pursuit of the case of his client, applied in the pursuit of a public goal, it puts it beyond doubt that the acquired skills of a lawyer are well suited for effective movement towards social changes. This becomes more profound where the lawyer acts outside the confines of specific professional engagement.

Contemporary Matters In the words of Oputa, J.S.C. in the relationship of the lawyer and the community and proceeding with the charge of Maughan, J.,21

You are the custodians of civilization … which there can be no higher aim and no nobler duty”. This is not an empty boast. Rather it gives a useful insight into the lawyer’s role in his community. In a changing and interdependent world generally, and in a developing society such as ours, lawyers should, in addition to their duty towards the maintenance of law and the administration of justice, give leadership and guidance in the

                                                                                                                         21  In  the  Eyes  of  the  Law,  p.  305  

25  

onward march of our people towards the sheltered harbor of the rule of law, and towards the sublime objective of restoring the dignity of man in our country. The modern lawyer owes important obligations to the government of his country and to his society as a whole. The skill and knowledge of a lawyer should be regarded as held in trust for the society. It is the duty of the lawyer in every country both in the conduct of his practice and in public life to help ensure the existence of a responsible legislature elected by democratic process, an independent and adequately remunerated Judiciary and to be vigilant in the protection of human rights and the essential freedoms and liberties of the citizen.

The foregoing are not in any way incompatible with the statutory functions of the lawyer but on the contrary are derivatives from them. For the reason that the lawyer’s duties are fused with the life of the society, the lawyer is not isolated from it. For these reasons as opined by his lordship, the lawyer should22

… take an active, nay, a preponderating part in the process of change … Lawyers have to be active in law reform and normal legislation…. The lawyer of today is thus a social engineer, the watch dog of the community, a determined fighter for the rights of man.

Looking at the common platform on which the 2015 general election was ventilated, it is evident that eradication of corruption assumed prominence. This must be in recognition of the endemic state of that scourge which appears to have devastated the very root of the society. Ignoring the deplorable ranking on the corruption indicator of Nigeria in the often subjective, slanted and exaggerated conclusions of the West, one does not need the gift of clairvoyance or extra-sensory perception to be convinced beyond all shadows of doubt that corruption may well be the most formidable masked insurgent attacking Nigeria. No wonder there is a categorical promise of the new government to confront the malady with resolute equanimity. This is no doubt a welcome relief.

                                                                                                                         22  Ibid.,  p.  306  

26  

The lawyer has a very significant role to play in this regard. There is no gainsaying the fact that some of those who were hailed yesterday in their triumphal stroll down the streets, will no doubt find themselves in the receiving end of wails of “crucify him”, perhaps with the same or more intensive emotions. It becomes the role of lawyers performing the functions of prosecution for offences to ensure adequate and transparent investigation and of course prosecution of those against whom prima facie cases were made out. Dispassionate exercise of prosecutorial discretion becomes mandatory for after all as the Romans taught us, it is safer to exculpate ten guilty persons than to convict or perhaps condemn one innocent person. This will, however, not diminish the need to be bullish in the process of seeking to establish sanity in the system without which the impunity which obviously was enthroned will prevail to a graduated proportion. The defence lawyers equally must be attentive and perform their statutory duties for after all there is a presumption of innocence until the contrary is established. A perceived offender can only be guilty after but not before a pronouncement of guilt.

The Rule of Law must be observed to its fullest for the absence of the rule of law no matter how lofty the final objective is translates into absence of justice. It is said that fair-hearing is shown not in the objective attained, but in the process which led to the objective. The cliché that the end justifies the means has no place in a civilized society and certainly not in the Constitution of the Federal Republic of Nigeria, 1999 when it relates to the constitutionally guaranteed rights of the citizen.

Electoral Reforms As alluded to earlier, the most significant development from the general election was the innovation introduced in the process the foremost of which is the Permanent Voter Card (PVC) and the Card Reader. After considerable challenges with the distribution of the PVCs for which the extension substantially ameliorated, the election proceeded with the Card Reader to assist in the process of accreditation. Admittedly at the Presidential Election there were challenges which compelled the

27  

Commission in the process of the election to resort to manual accreditation as stipulated in the Electoral Act. In the Governorship and State Assembly elections, however, the Commission was satisfied with the elaborate measures which they felt were adequate to guarantee the success of the innovation and appeared to issue a circular which was signed by the Secretary of the Commission with certain stipulations including the postponement of the election in a unit where there was a sustained malfunctioning or failure of the Card Reader. The further challenge, however, was that practically, in the course of the election where the electorate was restive and suspicious of the intentions of the process, there were reports that the ad-hoc staff were besieged and compelled to adopt the manual accreditation for fear that the intended postponement was a deliberate design to disfranchise them. The Incident Forms were also introduced to primarily record the failed accreditation, though practically it was extended to all instances where manual accreditation was adopted as envisaged by the Electoral Act. In some instances, it was reported that some ad-hoc staff were not trained on the use of the Incident Forms at all while some were confused as to the appropriate time to adopt the Incident Forms at the election. Some of these lapses gave rise to issues which are now prevalent at the election petition tribunals.

There can be no doubt that the primary objective of the innovation was to eliminate fraud at the election especially in ensuring that voters are duly accredited. The Card Reader was billed to capture the accreditation process and then upload the information to the INEC data base. The upload process was not, however, automatic in the sense that the data must initially be captured and then physically uploaded; or when that process is enabled by the operator of the Card Reader. Thus where, for instance, there is no network, the data in the Card Reader cannot be uploaded at the material time and must be taken to an appropriate location for the exercise. Likewise, where the Card Reader is unavailable for whatever reason, the data captured remain embedded in the device and may never be uploaded at all. INEC was satisfied, however, that the system

28  

substantially attained its objective and some observers appeared to concur. It was equally settled by all that the system was not near perfect which hopefully will be perfected in the course of time.

From the perspective of the Lawyer who now has to justify or impugn the system, there are legal issues which if understood ought to be addressed with a view to effecting reforms that will ultimately perfect the system. The adoption of the Card Reader was by way of Guidelines for the Election Officials at the election.23 There is no doubt that INEC had the statutory right to adopt and issue guidelines for elections in order to facilitate the process of the election. Those guidelines when adopted are intended to be used. There are indeed judicial pronouncements that the guidelines ought to be complied with in the process of the election. The problem, however, will arise where the challenge to the election is foisted on non-compliance with a guideline where the act of non-compliance did not also infringe any of the provisions of the Electoral Act, 2010. By virtue of section 13824 of the Act,

138 (1)An election may be questioned on any of the following grounds that is to say

(a) that the person whose election is questioned was at the time of the election not qualified to contest the election

(b) that the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act

(c) that the respondent was not duly elected by majority of the lawful votes cast at the election

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election

(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the

                                                                                                                         23  Guidelines  for  Election  Officials  2015  24  S.  138  Electoral  Act  2015  (as  Amended)  

29  

purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election. (Emphasis supplied)

The process of accreditation as stipulated by the Electoral Act did not take into contemplation, accreditation by the Card Reader. For emphasis, section 49 stipulates thus-

49(1) A person intending to vote with his voter card shall present himself to a Presiding Officer at the Polling Unit in the Constituency in which his name is registered with his voter’s card.

(2) The Presiding Officer shall on being satisfied that the name of the person is on the register of voters issue him a ballot paper and indicate on the Register that the person has voted.

It may be argued that the Card Reader is intended to aid the Presiding Officer in satisfying herself or himself that the name of the person is in the register and in that sense there is nothing in the process that is incompatible with the provisions of the Act. That may well be, but consider a situation where the register of voters delivered to the Presiding Officer by INEC in the morning of the election, contains the name and the particulars of the intending voter when compared with the Voter Card of the person, yet the Card Reader machine failed to either authenticate the Card or verify the finger impression of the voter. Where that person whose Card was not even authenticated is turned back at the election as he would not even be qualified to vote by a strict application of the Incident Form, will that not be disentitling the registered voter from exercising the right guaranteed her or him by the express provisions of section 49(2) of the Act? There is no doubt that this scenario can arise where the Card was abused. Yet no regulation is permitted to overrule or in any way impugn the effect of the provisions of the substantive law.

Besides the dire need to improve the Card Reader, there is an even greater need where the improvement is effected to elevate the INEC regulation or guidelines on the Card Reader to a statutory significance. This will be

30  

attained by an amendment of Section 49 of the Electoral Act by inserting the Card Reader as a further means to be employed by the Presiding Officer in the process of accrediting a voter. There is no doubt that the innovation was first enforced at the 2015 general election and that the INEC ad-hoc staff though trained for a limited duration, lacked expertise in the matter. Some members of public were equally unaware of the details of the process, though INEC embarked on considerable voter education and sensitization. Elevation of the innovation to a statutory significance will put the matter beyond peradventure for the integrity of the system. This will also make enforcement of the innovation easier as no discretion will be left for the arbiter in an election petition.

Based on legal positivism, the law is essentially the construction of the general Will of the people of a country and cannot be seen to be wrong because a homogeneous people can do no wrong in adopting laws that are suited for them. The need to ensure maximum probity in the electoral process cannot be overemphasized and should be approached by the law makers in resolute and decisive manner.

Perhaps there is a need to experiment with the electronic voting system which now is specifically proscribed by the Electoral Act. Though it is accepted that the Card Reader innovation is not strictu sensu electronic voting device, there is no doubt that some of the fears of voting by electronic means have been demystified by its operation. The greater danger of interference with the electoral process still looms and the 2015 experience has not totally provided a panacea to it. Collation of results at all levels of the processes after voting has proved a greater challenge. The cases which have been filed following the general election have substantially exposed the fact that the irregularities which arose at the polling units were not as substantial as those which followed the collation process. There were numerous instances where votes were progressively altered for certain candidates from one collation level to another with the result that the final declared results bore no relationship to the recorded

31  

votes in the polling unit result sheets. Bearing in mind that in such cases it will be highly improper to nullify the duly cast and recorded votes at the polling units on account of irregular and perhaps criminal computation of such scores at the collation result sheets, it still presents paradox and challenge to the election petition tribunals who may in order to get to the justice of the case resort to re-computation of the result of the election based on the polling unit result sheets. There were equally instances where votes counted and recorded were deliberately altered in the unit result sheets.

There is no doubt that although it cannot technically be said that an electronic voting system has been put in place in Nigeria, it should at least be accepted that electronic registration of voters was introduced in 2007 which resulted in the establishment of an electronic data base by INEC. The 2015 election was thus, despite the introduction of the Card Reader, operated by combining manual voting process with the electronic data base which did not quite operate smoothly. This is clearly attributable to the human element in the process of both accreditation and the collation process.

The electronic voting process, if adopted, will reduce the human interference with the process. It will be self activated and operated with the INEC data base playing the dominant role. There will be no need for the process to depend on the deployment of information captured in a Card Reader which may never occur and which in any case is dependent on human element. Commenting on the desirability of elimination or limitation of human element in the process as well as its cost implication, one commentator noted that –

With self activated and self operated electronic system, the country would be saving a lot of money from printing of materials, ballot boxes to the logistics of moving materials from one point to another etc. Secondly the process would be so designed that each electorate would ascertain from the screen if his ballot had been accepted. There would be no room for over voting, as the software would prompt a ballot with the voter’s picture

32  

and stored thumbprint which would only accept voting when the thumb for the voter matches with the thump print in the data base.

Whatever features required for authenticating the voting system would be incorporated in the design.

Also one could vote for any election of his or her choice from anywhere in Nigeria if such a person is a Nigerian registered voter. This would reduce the panic movement associated with election as well as save lives that are lost either by movement on the road or during election. Electronic voting would be personal and discrete. Political thuggery would be of no use then and ballot snatching etc would never be witnessed in our polity any longer.25

I am mindful of the fact that there were problems which attended the experiment of Kenya in 2013 with the electronic voting machine. Problems, when they arise, call for solution and improvement and not abandonment in favour of retrogression. The contention that literacy level in Nigeria will not allow for efficient operation of the exercise is indeed a myth. Experts in the field are ad idem that the technological knowhow involved is hardly distinct from that required in the operation of a cellular phone which can virtually be operated by anyone who can afford them with minimal education and prompting. Besides, there are elections before the next general election which may serve as testing grounds to enable and eventually perfect the system.

CONCLUSION From the foregoing account, it should be apparent that in a developing society such as ours, the role of a lawyer should proceed beyond merely advocating for his client. A lawyer is invariably engaged in the process of application and enforcement of the electoral laws which puts him in the position to device viable means towards improving the system. There is no doubt that there are lawyers in the three arms of the government who must be called upon to either apply or advocate the reformation of not just electoral laws but other laws which are bound to advance the gains

                                                                                                                         25  Nigeria  in  Need  of  electronic  voting  system  –  Vanguard  News  

33  

experienced following the 2015 general election in Nigeria. The Bar Association itself as the foremost professional body of widely experienced practitioners from both the official bar and the private practitioners is perhaps in the best position than any other association in Nigeria to advocate and ensure the advancement of such laws that would best conduce the preservation of the positive development as well as outlook from the 2015 general election. When this is done, it will be manifest that rather than retrogression the nation will progressively move towards attainment of the lofty objectives of the democratic process and thereby sustain the gains of the 2015 General Election.