SAN Rank: An Unusual Take
“THE FACT THAT ALL PROFESSIONALS, ARE SIMILARLY CIRCUMSTANCED IS A CONSTITUTIONAL TRUISM. ACCORDINGLY, THERE IS NO RATIONAL BASIS FOR DISCRIMINATING BETWEEN THEM, THE WAY SECTION 5 OF THE LEGAL PRACTITIONERS ACT CLEARLY DOES”
Introduction
Few issues in the legal profession are arguably as controversial as the annual award of ‘silk’, i.e., the rank of Senior Advocate of Nigeria, popularly known by its acronym, SAN. This is by no means an exaggeration, as it was even the subject of litigation at the behest of the ‘No’ group, led by the venerable nonagenarian, Pa Tunji Gomez. Thankfully, the suit was withdrawn, for the issue to be resolved internally as a family affair. But is it really? Given that the award and its conferring body, the Legal Practitioners Privileges Committee (LPPC) were created by statute, the Legal Practitioners Act, should any grouse about the award’s legitimacy not focus on that enabling legislation?
In any case, what can be objectionable about a system for formally recognising excellence in any profession, in the case of law, by conferring a special rank on a Lawyer who “has achieved distinction in the legal profession”? This piece attempts some answers, but from an entirely different perspective than the usual arguments so far deployed, for the abolition of the rank. Before going further, however, a few clarifications. I concede that as a legal practitioner who is not (yet) a SAN, this intervention risks being construed as a case of ‘sour grapes’. This is far from the truth, however, as, believe it or not, it is my personal aspiration to also be conferred with that rank in the not-too-distant future - even if it is a merely honorary one, as Mr. Steven Kola-Balogun, once famously suggested!
What is wrong with the Rank? The antagonists of the award (at least Pa Gomez and Co.), allege that the privileges it confers on its beneficiaries give them an ‘unfair trading advantage’ over their non-SAN colleagues. Others allege that the criteria for the award are not objective, as they are sometimes waived, if not sacrificed altogether, on the altar of the so-called ‘federal character’ principle. By this, they allude to the notorious ‘Nigerian-factor’, which demands a semblance of balance, in terms of geographical spread of the awardees.
For instance, it is alleged, an applicant who is otherwise fully qualified in terms of criteria, is often overlooked in preference for another applicant who might not be that qualified, for no reason other than the fact that the former comes from a region or part of the country, that is perceived to be ‘over-represented’ among the applicants in that particular year, compared to the latter who might be one of the relative few applicants from his (or her) own part of the country, and is thus, perceived to be disadvantaged.
To be fair, however, the conferring body, the Privileges Committee, has sought to address such concerns by frequently tweaking the criteria. Needless to say, such interventions have failed to assuage the ‘No’ Group, who dismissed them as mere palliatives. Hence, the agitation has continued unabated, albeit in relatively muted tones. At any rate, given that the award is a privilege and not a right, there is only so much that the ‘No’ Group can realistically hope to achieve.
Is the Award or its kind Peculiar to Lawyers? This brings us to my view, that the problem might lie with the enabling legislation, hence a review of same is apposite at this juncture. Section 5 of the Legal Practitioners Act empowers the Legal Practitioners Privileges Committee to award the rank of SAN, based on such criteria as it might determine from time to time. As previously stated, the object of the award is to recognise excellence in the legal profession. But then, law is not the only profession in Nigeria. Item 49 of the Exclusive Legislative List of the 1999 Constitution empowers the National Assembly to regulate “professional occupations as may be designated by the National Assembly”.
By virtue of Paragraph 1 of Part III of the 2nd Schedule to the Constitution, the National Assembly may designate a thing, either by passing an Act or through a resolution passed by both Houses of the Assembly. The National Assembly has exercised this power in respect of a number of professions including Medical and Dental Practitioners, Estate Surveyors and Valuers, Public Relations, Marketing, Nursing and Midwifery, Accountancy, Insurance Brokers, Science Laboratory Technology, Animal Science, etc.
See in this regard, the Medical and Dental Practitioners Act, Cap. M8 LFN 2010, the Nigerian Institution of Surveyors and Valuers Act, 1975, the Nigerian Institute of Public Relations Practitioners Act, Cap. N.114, LFN 2010, the Nigerian Council of Registered Insurance Brokers Act, Cap. N.148, LFN 2010, the National Institute of Marketing of Nigeria, Cap. N.144, LFN 2010, the Nursing and Midwifery (Registration, etc) Act, Cap. N.143 LFN 2010, the Nigerian Institute of Management Act, Cap. N 149, LFN 2010, the Nigerian Institute of Science Laboratory Technology Act, Cap. N. 150, LFN 2010, the Nigerian Institute of Animal Science Act, Cap. N. 160, LFN 2010, etc.
The common feature of all these statutes, is the absence of identical or even similar provisions to those of Section 5 of the LPA, which authorises the conferment of the SAN title on Nigerian lawyers. With a few exceptions (Accountants, Insurance Brokers, Animal Scientists, etc), none them even discriminates among its members. Those that do, broadly recognise three categories of members: ordinary members, associates, fellows and honorary fellows. This is in stark contrast to the legal profession, where, apart from those privileged to take silk (i.e. SANs), no distinction of any sort exists by law among its members, at least none that I am aware of.
Besides, none of the enabling laws of the other professions establishes any body comparable to the Legal Practitioners Privileges Committee, with similar functions. The reason for this may not be far-fetched, because none of them awards a comparable privilege to its members in such terms, i.e., explicitly. Rather, in virtually all of them, elevation from one membership level to the next is virtually a right, awarded by the number of years (usually 10) after acquiring the requisite academic qualification, or on attaining the preceding grade as the case may be. This is particularly true in the case of accountants, insurance brokers and animal scientists. I might be wrong.
But, what do Lawyers have in common with accountants, insurance brokers and animal scientists, you may ask. Simple: they are all professions by virtue of the provisions of Item 49 of the Exclusive Legislative List of the Constitution. Accordingly, they are all deemed to be similarly circumstanced. It is wrong under the law, for any legislature to confer a privilege or impose a liability on any person or group of persons which is denied to another person or group with whom the former is similarly circumstanced. Any such law, in this case, Section 5 of het LPA, would violate the right to equal protection of law. See Article 3(2) of the African Charter on Human and Peoples Right.
According to Black’s Law Dictionary, 8th Ed., page 577, “equal protection guarantees that the Government must treat a person or class of persons the same as it treats other persons or classes in like circumstances . . . equal protection means that a legislation that discriminates must have a rational basis for doing so.” See also N.N.P.C. v FAWEHINMI (1998) 27 NWLR pt. 559 @ 616 where the Court of Appeal, per Ayoola, JCA (as he then was) held that “The guiding principle is that all persons and things similarly circumstanced shall be treated alike, both in privileges conferred and liabilities imposed... (the rule) forbids discrimination between persons who are similarly in similar circumstances or conditions”.
I believe that, the aforesaid differences between the provisions of the LPA and the enabling laws of other professions in Nigeria, directly impinge on the validity of the former, and therefore, the title of SAN. Why? Because, as previously stated, such a privilege should be shared across all professions according to the same legislative fiat. Accordingly, there ought also, presumably, be Senior Accountants of Nigeria (SAN!), Senior Medical Doctors of Nigeria, Senior Engineers of Nigeria, Senior Surveyors/Valuers of Nigeria, Senior Marketers of Nigeria, Senior Nurses/Midwives of Nigeria, etc. While this might seem far-fetched and even farcical, I submit that, it is but the logical outcome of applying the rule against discrimination between persons whom the law regards as being similarly circumstanced. It is not enough, in my view, that comparable provisions in the enabling statutes of other professions, merely recognise different categories of their members as aforesaid. That is precisely my point: the legal profession does not recognise such gradations. Why?
Conclusion This article might be something of an own goal, given the author’s declared aspiration to be bestowed with the rank in question. Nevertheless, the interests of objectivity, if not scholarship, trump such concerns..
The fact that all professionals, are similarly circumstanced is a constitutional truism. Accordingly, there is no rational basis for discriminating between them, the way Section 5 of the Legal Practitioners Act clearly does. To the extent that no law authorises any other profession to confer that kind of privilege on its members, such discrimination is illegitimate and invalid.