Thinking of the constitutional guarantee of unhindered choice of legal representation, I disagreed at first with the statements attributed to Ibrahim Magu, EFCC Chairman, which was supported by President Muhammadu Buhari, that certain members of the Nigerian elite lawyers who carry the title of Senior Advocate of Nigeria (SAN) were deliberately impeding the fight against corruption.
The SANs were accused of blindly accepting “corruption-tainted briefs”, assisting accused persons in hiding their loot, and irresponsibly using technical manoeuvres to defeat the system.” But as if to prove Mr. Magu right, an overwhelming bunch of SANs not only signed up to defend one of their own, Rickey Tarfa, who was accused of obstruction of justice, but they all showed up in force, dressed up in their special uniform, to support him during the charging process in court. The SANs also seemed unperturbed by the publicly available evidence that if nothing else, indicates a prima facie case of unethical behaviour when Rickey Tarfa was shown to have transferred a certain amount of money to a judge in front of whom he allegedly had a number of pending cases. Now, I have never witnessed anything more ridiculous and disgraceful than the immoral sense of espirit de corp displayed by the SANs to the extent that even the presiding judge was concerned enough to question whether the show of force was deliberate to intimidate the bench.
Intimidation? Yes, now, intimidation! And should Nigerians be surprised? I don’t think so, because come to think of it, when seriously scrutinized, nothing else seems to survive as a reason for the existence of the SAN status beyond being a bullying tool against the bench, other lawyers, the public, and any objectives that can jeopardize the SANs’ “bread and butter.” But this sort of crazy grandstanding cannot be blamed on the rank of SAN members, some of whom fought by “hook or crook” to obtain the status conscious of its highly lucrative factors. The blame, therefore, must be shared by the entire Nigerian judiciary as an institution, that, for no useful reasons peculiar to Nigeria, copied and continues to sustain a worthless honour system worsened by the attachment of privileges that treat seekers of justice disparately. For this reason alone, we are all victims of the SAN honour system where it is tainted by conflict of interest, unethical affiliations, and stands as an impediment not only to the war against corruption but generally against efficient subscription of justice to the society.
As a recent returnee who has practiced law in another country for many years, and recently became a member of the Nigerian bar, it has continued to surprise me that the Nigeria judiciary proudly relishes still certain traditions that belong to the stone age of legal profession and vigorously struggles to maintain the circumstances. Unlike other professions in Nigeria, the legal profession seems comfortable within its colonial proclivities, preserving practices long rejected, opposed, or reformed as incompatible with republican democracy in more advanced jurisdictions. The SAN is an example this fact as it represents an institutionalized relic of absurd hierarchical caprices of which the judiciary can safely rid itself. Even if its original intention were genuine, the SAN ranking has become an irresponsible professional self-adulation that in practice violates the general interests of justice and allows the “senior” lawyers to think that they are beyond reproach either by the court or by anyone else. That is why some prominent ones among them impulsively and shamelessly against all professional decorum, crowded the court in support of an allegedly unethical colleague, and daring the system to call them to order.
From my faraway post even before becoming a member of the Nigerian bar, I made it a duty to follow current legal affairs in the country. As such, I have observed over the years that a growing number of lawyers, some prominent and experienced ones among them such as Pa Tunji Gomez (Nigeria’s oldest lawyer in active practice) and Ms. Carol Ajie, have made it a sustaining event at the annual NBA Conference to protest and call for the abolition of the SAN status. These bold lawyers alleged that the apparent crooked SAN qualification procedure is enough reason to dump the ranking system. I admire these lawyers, but I think the protest of perceived corruption and nepotism in the SAN selection procedure is self-serving because of its focus on professional interests rather than the public harms attributable to the SAN ranking system. And so the SANs were usually quick to impeach the protesters as bad belle or sour grapes, effectively killing the agitation each time.
The situation is changing now because the traditionally ignored harms of the out-dated tradition are being highlighted for its toxic effect on the fight against corruption as aptly raised by the president and Mr. Magu. That, I think, should be more of a convincing and credible rationale for the abolition of SAN than the one seemingly factored on the protection of professional interests.
I think it should be obvious that the right to equity and an unadulterated judicial process is adversely affected, if not downright violated by the SAN ranking and its egocentric privileges. But what is it that actually made it so? The answer to that question can be narrowed into a simple span covering the precarious conflict of interests involved in several areas of the SAN procedure, the unpredictable evaluation of SAN applicants, and the abjectly insensitive privileges accorded to SAN being the major aspect affecting equal access to justice as guaranteed by the Nigerian Constitution.
It is undeniable that conflict of interests at any level of justice is injurious to the public, and that is what exists between the parties involved in the SAN qualification procedure. The conflicting professional relationships between those who review candidates for SAN on the one hand, and with the candidates themselves on the other hand are incestuous sufficiently to render the title a product of undue influence and partiality. In trying to copy the British honour title of Queen’s Counsel, Nigeria managed to create a monster chewing at the very essence of legal practice. In England, the prerogatives of QC traditionally belonged to the crown exclusively through the recommendations of the Lord Chancellor. The process during that time was protected from any real or perceived conflict of interest because the crown was independent and separate from the judiciary. Nevertheless, the issue of conflict of interests was germane and seriously considered when, subsequent to an unsuccessful but popular campaign to abolish the title, the crown yielded responsibility for the appointment of QC to a 9-member panel in 2004. In order to protect the independence of the selection process and preclude any conflict of interests, the panel is chaired by a layperson and comprises of two barristers, two solicitors, one retired judge, and three non-lawyers. The process is free of any interference by any sitting judge, the chief justice, or any QC. The Selection Panel is independent of the Bar Council, the Law Society and of Government, and can be verified by simply visiting the QC appointment website at http://www.qcappointment.org. Instead of adopting that open and independent selection procedure, Nigeria opted for a complex process incongruent with the preservation of public trust which is required of any honour system no matter how insignificant.
Nigeria does not have a royalty lording over it, and so the “learned” club of legal professionals ever disdainful of public interference, replaced the open and independent QC selection system with a buckle called the Legal Practitioners Privileges Committee (LPPC). That committee is made up of judges and lawyers of various positions and influences, all whose paths have likely crossed either at law school or during practice, and that is what makes it susceptible to conflict of interests, undue influence, and favouritism. The LPPC comprises of the Chief Justice (CJ), who is the chairman; the Attorney General of the Federation (AGF); one justice of the Supreme Court appointed by the CJ; President of the Court of Appeals; five chief judges of state high court appointed by the CJ; Chief Judge of the Federal High Court; and five SANs. So, apart from the AG, the President of the Court of Appeals and the Chief Judge of the Federal High Court, all other members of the LPPC are selected by the CJ. The conflict of interests intrinsic to this structure is so pervasive as to make a mockery of what the judiciary represents in a democracy.
The composition of the LPPC is an assortment of unethical affiliations and professional conflicts of interest hazardous to public interest and the rule of law. The AG is the chief law enforcement officer of the federation, he or she is the chief prosecutor, and by law, no prosecution can proceed without his or her approval. It is unduly disadvantageous and unethical that the same AG would be involved in a position of authority over lawyers who may someday apply for SAN. All lawyers are exposed to the intimidation and coercion derived from this aspect, and it may cause cowardly lawyers to be less adversarial or to relent in the vigorous defence of a client in deference to the AG. Daring lawyers like the late Gani Fawehimi and Femi Falana, who made public interest law and human rights their speciality, were embarrassed and cast in aspersion for many years because they stood their ground against the judicial establishment as represented by successive AGs before being eventually awarded the SAN status partly due to the relentless public outcry. Not too many lawyers are interested in public interest or human rights law any longer; their ambition may have been chilled by the reprisal suffered by these lawyers. Other lawyers who don’t want to be ignored for the juicy title or suffer the same fate are ever careful not to be seen as public interest or human rights lawyers. In essence, immense benefits of passionate legal advocacy and ambition in the areas of public interest law and human rights are waned because of a pointless copycat tradition that benefits a few numbers of lawyers.
The public becomes a victim where judges, as final disinterested arbiters of justice, participate in the evaluation of lawyers for honour title. It is bad enough that the Nigerian judiciary is the only branch of its democracy totally shielded from public participation because judges are not elected, and there is no jury system; therefore, judges authorized to subjectively evaluate lawyers’ fitness for the SAN rank is an accessory of corruption. Essentially, beyond the apparent dangerous conflict of interests, the arrangement exposes the judges, mostly senior members of the bench, to potential undue influence from the CJ, who has the power to appoint them to the LPPC as well as an exchange of favours and pressure from the SAN applicants. Once this disreputable relationship is established, it become routine for the SAN to stand on, and operate on its basis to intimidate other lawyers. And even before becoming eligible for the SAN title, it is only wise for lawyers to maintain good relationships with judges, socially or otherwise, at all costs; even if it is for the slight chance that some of the judges may be sitting on the LPPC when the lawyer becomes eligible or for their recommendations in support of potential SAN application. This lawyer/judge cordiality is so common that it has become accepted as part of the Nigerian legal tradition, and that is why most lawyers were not shocked when the EFCC alleged that Mr. Ricky Tarfa gave a judge some money which the lawyer claimed was ordinary financial assistance toward the funeral of the judge’s relative. This unethical cordiality is so pervasive that it is a bragging right for lawyers to parade openly their relationship with judges in order to attract clients. I don’t know any other jurisdiction in the world where this indecorous display is as prevalent as I once witnessed at the wedding of the daughter of the Chief Judge of Lagos State where lawyers crawled over each other so as to be noticed by the Chief Judge for attending the party or for bringing gifts to the new couple. Undoubtedly, it is safe for lawyers who aspire to ascend the SAN level not to ruffle judicial feathers even if the lives of their clients depend on it. Where I practiced for decades, ordinarily shaking the hands of a judge in whose court one is appearing, may lead to serious professional reprisal. That is how serious it is in some jurisdictions to preserve the appearance of judicial impartiality. Mr. Magu did not have to wonder much why prominent Nigerians, including those accused of corruption always seek out the SAN; it all boils down to the endorsement as superior lawyers on the basis of good relationship and favour-trading rather than merit. No matter how bad is a lawyer, he can become a senior advocate of Nigeria so long as he does not ruffle feathers and maintain a good relationship with judges even if unethical.
Almost all aspects of the SAN procedure are abusive to every reasonable sense of justice as they concern the interest of the public. To become a SAN, a lawyer must have a chamber, a library, and a certain number of lawyers as staff. Additionally, the lawyer must have a minimum 10-year “distinctive” professional experience. Now, this is the most dangerous, if not an absolutely reckless requirement. According to the LPPC, “professional experience” is indicated by having conducted at least 17 cases; three from the Supreme Court, six from the Court of Appeal, three from the High Court; or six from the Supreme Court. It is unfathomable to me how the apparent public harm innate in this requirement has managed to escape public outcry for judicial reform. Of course, it takes little for a lawyer to figure that the protraction of cases and the cramming of unnecessary and frivolous appeals to the Court of Appeals and the Supreme Court for appearance purposes (since winning the cases is not required) is a sure way to attain recognition in the profession. In England, appearance in court is not part of the QC requirement, rather of a noticeable aspect is the requirement that candidate must show evidence of advancing a client’s case through advocacy. How does it help the public and access to justice when the only legal professional recognition encourages lawyers to clog the courts with appeals not because doing so serves any purpose other than the accumulation of appearances for the SAN qualification? Nigerians continue to agonize over the extreme protraction of cases in our courts, compounded by all sorts of unimaginative appeals and technical manoeuvres without the grasp that this particular requirement could be one of the major motivations.
The public harm attributable to the SAN would be mild without the ridiculous privileges that go with it. A SAN is allowed to dress differently donning a silk robe and wearing the long wig like a judge. Wearing a silk robe, head covered by a long thick wig in the already unbearable sweltering tropical climate is a matter of personal choice and of no consequence other than perhaps the malodorous perspiration. The same applies to the privilege of sitting in the inner bar; most courts in Nigeria is small with no room for any inner bar, so the SAN is contented with sitting in the front row of the bar. But to prioritize the SAN’s matter over that of other lawyers as a privilege is preposterous if not outright insane. I am sure this type privilege is not available to QC’s in England. I have witnessed instances in court where a SAN would walk in with a retinue of assistants in tow, and regardless of the disruptive nature of the grand entrance, a judge would pause and call the SAN to present his case no matter how long others have been waiting for their matters to be called. This, of course, explains the humongous fees commanded by SANs, and it illustrates how injudicious discriminating the judiciary that supposed to serve us all equally can be. Justice supposed to have a level playing field when it comes to access regardless of the financial status of the litigants or their choices of lawyers. It is an injustice, not justice when some litigants are disparately treated by a “judicial” system because of the size of their pockets. To deny people timely access to justice simply because they cannot afford a SAN explicitly violates the right to equal protection under the law as guaranteed by the constitution.
There seems to be no reason strong enough to justify or sustain the existence of the SAN title. A clear majority of Nigerians, knowing how the title has corrupted the judiciary, are opposed to the title; and the few, especially SANs, who support it are found wanting in their argument. A female SAN argued on the pages of the newspapers that SAN are rightfully accorded priority in court because junior lawyers need to watch and learn from the SANs in action. How does this serve the interest of a client who is hard pressed for timely justice but unable or unwilling to retain a SAN because his ordinary lawyer is more affordable or even a better advocate? And if the female SAN was right, why is it not a requirement of the bar that a new lawyer spends time watching the arguments of SAN on his or her own time but not at the expense of a paying client? Such argument unequivocally confirms that the selection of some lawyers as SAN was other than based on merit; it is almost about showmanship and undue influence always. Others also have argued that as a professional recognition, the SAN award encourages hard work and proficiency among lawyers who aspire to apply for the title in future. This argument is unviable because the requirements for SAN exclude any objective test of competence, but a load of ordinary court appearances and testimonial not from the clients served by the lawyer, but from judges whose testimonial is susceptible to undue influence by the lawyer. It is only those involved in the SAN process that believes that a 10-year post call experience and multiple court appearances are conclusive indicators of competence, no one else does; otherwise, why did it take years for women, corporate lawyers and those in the academia to be considered for the SAN? Shamefully, the list of SANs in Nigeria today still consists of very few women; it was actual news in 2010 when three women made the rank, bringing their number from seven to 10 among more than 300 SANs then.
Without its harmful effects, the SAN ranking is still a redundant recognition of professional excellence. The legal profession has a wide area of specialities where a lawyer can excel apart from litigation on which the SAN rank overly concentrates. Therefore, a comprehensive standard to determine levels of excellence may be difficult if not impossible. However, all lawyers are in the business of providing service in whatever area of speciality they are found, so levels of excellence in that regard are better left to the discretion of those who have sought or are seeking the services, not to an uninformed body of appointed judges and lawyers, themselves not immune to the deficiencies or faults of the profession. Also, the performances of a lawyer should not be driven by the ambition for a title of recognition. Lord Denning and other trail blazing lawyers in England were just good lawyers who put a lot of work into self-development not because they wanted to be QCs; the fact is that most QCs in England consider the title as a burden because of higher professional responsibilities attached to the title. In the US where we copied our democracy, titles such as the senior advocates are non-existing, yet some lawyers have attained recognition solely on the basis of successful practice. For instance, Vincent Bugliosi, formerly of the District Attorney’s Office, Manhattan, New York; successfully prosecuted 106 cases out of which he got 105 convictions, including that of the famous Charles Manson. The man got 99.9% winning rate and was described by F. Lee Bailey, another damned good lawyer, as the “quintessential prosecutor”, and the “best there ever was”; yet he is not a senior advocate of anything, and knowing him from his many books and articles, he probably would have rejected such ridiculous designation especially coming from a body comprising of court judges of all people. Equally, the cumulative achievements of lawyers like the late Johnny Cochran in California and Roy Black in Florida were unattached to any special designation, but sheer hard work, creativity, and proficiency. These lawyers and many others became famous judging by objective results and clients’ satisfaction. Many lawyers in Nigeria fall in that category but they are overshadowed and their glory obliterated by those who managed to become SANs. “Managed” because some of the lawyers obtained SANs, not by sheer work, but because someone influential acted on their behalf. There are famous incidents of SAN status being awarded to lawyers who rode on the influence of their SAN parents. Imagine one SAN, who recently, with untold number of newspaper congratulatory messages, celebrated his 20 years as a SAN. I would rather have had him celebrating the winning of his 100th or 1000th case. Really, what does it take to maintain the status as a SAN except staying alive? That lawyer may have lost all the cases he ever handled but became a SAN for meeting the appearance requirements, so what is there to encourage hard work and creativity? It is worth emphasizing that the SAN is not an adequate measure of proficiency in the legal profession because of its worthless requirements and susceptibility to all sorts of influence. By the existence of the SAN rank, worthy lawyers are avoiding the academia and other areas of the law that benefit the society choosing to concentrate on litigation alone.
The erosion of public confidence in the judiciary is highly influenced by the SAN status and its irrational privileges. Where other lawyers are prohibited from advertising, the so-called senior advocates gain cheap publicity when idolized by the media and no big case, whether of election dispute or corruption, is complete without the appearance of a SAN. This fact is not hidden from the general public who feels cheated that failure to engage a SAN means unfavourable status and denial access to timely justice. In this regard, the SAN has become a tool of oppression and corruption. It unnecessarily encumbers those who seek justice, denies the opportunity for unbiased assessment of legal practitioners, and worse, adversely affects equal access to justice. Against these anomalies, especially the cordial relationship between the SAN and the bench, and the feeling that the SANs are above reproach, the government stands at a disadvantage in its fight against corruption. Nigeria is a constitutional democracy with the right to equal protection clearing written into its constitution. For the reason of equal protection of the law, the US, where we copied our democracy, has no senior advocate rank or similar designation with unfair privileges. Simply put, Nigeria loses nothing if the title is abolished.
Muyiwa Sobo, Esq.