‘SAN Rank Is Not Woman Friendly’
Despite the great advances the Nigerian legal profession has witnessed, female Lawyers have still not been accorded their rightful place. The situation is worse, at the Inner Bar. But the few women who have made it to the exalted rank Senior Advocate of Nigeria, did so not just by a dint of hard of work, but by personal sacrifices and swimming against the strong tides in a male dominated profession. Mrs. Funke Adekoya, SAN, is one of them. She graduated from the University of Ife in 1974, and was called to the Bar in 1975. She then obtained her LL.M from Harvard Law School, Boston, Massachusetts, USA in 1977. In 2001, Mrs. Adekoya became the fifth woman to be conferred with the rank of Senior Advocate of Nigeria. A former 1st Vice President of the NBA, a consummate litigation Lawyer and seasoned Arbitrator, Mrs Adekoya told Onikepo Braithwaite about her fortuitous but meritorious appointment, as a member of the exalted World Bank Sanctions Board, the first and only Nigerian who has had the rare privilege of that global recognition. She further spoke on a myriad of other complex issues, in the igerian legal profession.
In 2001, you were the 5th woman to be conferred with the rank of Senior Advocate of Nigeria (SAN). To date, only 4% of SANs are female. Why is this so? What advice can you give to women who are aspiring to attain the rank? Do you think Lawyers who concentrate solely on Arbitration, should have their own criteria for attaining the rank of SAN?
Women have not aspired to the rank of Senior Advocate in the same numbers as men, because the rank of Senior Advocate of Nigeria is for Lawyers in litigation, and the litigation terrain is not woman friendly; as a result, many women have concentrated on the arbitration arena where they are more in control of their own time. However, since arbitration is a means of dispute resolution, I do not think that Lawyers who concentrate solely on arbitration should have their own criteria for attaining the rank. As arbitration counsel, they perform the same role before the arbitrator as Lawyers do before the judge; again arbitration awards are often appealed before the courts where they will appear.
The litigation terrain is tough, travelling all over the State or the country to handle cases, often conflicts with women’s societal obligations as nurturers to their husbands and children. Also, the time required to adequately prepare cases for trial, does not respect conventional 9-5 working hours. All these factors, mean that many women would have dropped out of the litigation circuit, by the time they should be acquiring the seniority and caseload required for a SAN application. For as long as we keep saying ‘there are no ladies at the Bar’, we will not address these issues which hinder many women from reaching their full potential as litigators. We women, need to fight to have our gender acknowledged in the profession, as a first step towards acknowledging that the playing field is not equal. That is why I always object, when referred to as ‘my brother silk’. We must push for the changes that will ensure that, women can remain as litigators in private practice, while still maintaining proper work/life balance. Again by our nature, we tend not to push ourselves into the limelight. We are content with doing our job well, and then, going home to the family. As a result, some women who could have applied for the rank many years ago, never turned their minds towards it.
Some people are advocating for the abolition of the rank of SAN completely, just like it was abolished in Ghana. One of the reasons for their stance, is that they believe that the rank gives the SANs unfair advantages over the general population of Lawyers, and signifies that SANs are better or more competent than Lawyers who are not SANs. Even the Presidency of the NBA now seems to be the exclusive preserve of SANs. Kindly, comment on this.
I do not support the abolition of the rank of Senior Advocate, it is meant to be an acknowledgment of excellence in advocacy, for those who have it. Those who speak of unfair advantages talk of 2 things; the ability to mention your cases in court ahead of other colleagues, and the belief that the rank entitles the holder to charge monstrously higher professional fees than Lawyers who do not hold the rank. The privilege of mentioning your case ahead of others, is meant to provide an opportunity for other colleagues to learn from the manner of case presentation and advocacy, which has earned the silk the rank. The privilege would not be a problem if the courts were efficiently run, such that the daily cause lists are not unduly long. Lawyers complain, because they say once a silk is in court, their cases will not be heard due to the long cause lists. As for the increased fees that come with the rank, clients are generally quite savvy, and will price the legal services based on the importance of the matter and the innovative principles of law involved. I personally, have not been a recipient of the ‘jumbo’ fees being touted as earned by SANs; perhaps it is because I am a female silk!
The NBA national elections are here again. What are your views on adoption of candidates for offices by regional fora? Is it still desirable at this point?
Personally, I do not support the adoption of candidates for NBA offices by ethnic/regional fora. Adoption says that, the forum prefers one of its members over another. Now that ‘rotation’ of candidature amongst the various geo-political zones has been put in the NBA Constitution, adoption has become unnecessary – a zone should allow all its candidates to contest, and give us the freedom of choice. It will seriously damage the influence and credibility of a zonal group, where the candidate that it has endorsed does not win the election; this has happened before, and is sure to happen more frequently, as we have abandoned the corruption prone delegates system, and returned to the universal suffrage voting system. My regional forum cannot dictate to me who I should vote for; and what sanction can they impose on me if I do not support or vote for their ‘adopted’ candidate?
I do not even like the idea of an ethnic/regional fora for Lawyers, as it is very divisive in a country in which we are still trying to mould a national identity. Within the profession, it encourages us to first have our allegiance to an ethnic agenda, meaning we will never consider ourselves to be Nigerians first, and members of an ethnic group second.
What is your assessment of electronic voting vis-à-vis universal suffrage, since its introduction in the last election 2016?
I have contested NBA elections for the NBA Presidency twice before, and I can confidently say anywhere, that the previous delegates system was corruption ridden. Branch Chairmen needed to be ‘courted’, to ensure that their delegates voted en bloc for the candidate; meanwhile, there was no assurance that the same delegates were not being promised to each and every candidate! And who determines how the delegates would vote? Lawyers would struggle to become delegates, so they can make money from candidates. Branch Chairmen would approach identified candidates for assistance in paying practice fees and branch dues for branch members, since the number of delegates per branch was calculated based on branch membership strength. I could go on and on. With universal suffrage, every Lawyer has the right to vote, once he or she is up to date with practice fees and branch dues. In 2016, Lawyers were able to vote from anywhere in the world, once they had completed the accreditation process. Although there were minor technical hiccups which always occur when a new system is being implemented, I am sure these will have been sorted out by the time of this year’s elections.
The issue of the appointment of the new Director General (DG) of the Nigerian Law School came to the fore recently, that is, that the Council of Legal Education allegedly failed to follow due process in its recommendation of him as the DG of Law School. Has the Body of Benchers waded into this matter? People are saying that, if we Lawyers and our governing bodies are not following due process, why should anyone expect Government to obey the rule of law?
I was not at the last meeting of the Body of Benchers, and so I cannot speak on this issue. I was not even aware of the complaint; however, due process must be followed at all times.
“I DO NOT SUPPORT THE ABOLITION OF THE RANK OF SENIOR ADVOCATE, IT IS MEANT TO BE AN ACKNOWLEDGMENT OF EXCELLENCE IN ADVOCACY FOR THOSE WHO HAVE IT”
As a former 1st Vice President of the Nigerian Bar Association (NBA), you may have heard NBA Members complaining that our umbrella body has lost its vibrancy and become rather lack lustre, not taking tough stands on issues when it should, except on the October 2016 raids on the Judiciary. What is your opinion on this allegation?
I agree that the NBA has lost its vibrancy, and I put this down to three reasons: firstly, the structure of the association which does not allow for continuity in plans and policies; secondly, the association is not professionally managed and thirdly, the manner in which elections into national elections were conducted in the past. Because a new set of officers are elected to lead the association every 2 years, any policy or strategy which requires long term implementation is ‘dead on arrival’, more so, when we do not have the calibre of administrative support in the national secretariat, that will make the national officers purely titular, while the secretariat runs the organisation and implements agreed long term policies and strategies. Then, the amount of time and effort required to contest NBA elections, resulted in the emergence of ‘professional Bar politicians’ who were interested in contesting purely for personal career development, and not with the best interests of the profession at heart. The resources required to contest NBA elections prior to 2016, meant that candidates were often surreptitiously bankrolled by State Governments and ‘godfathers’ within the profession, with their own vested interests. All this has resulted in the perceived lack of ‘vibrancy’. I honestly think it is the change to a universal suffrage, that has enabled the NBA to shed its shackles and regain its vibrancy. The current President of the Bar, can claim to ‘belong to everybody and belong to nobody’.
Do you think the October 2016 raids were necessary? Did they yield any positive results? In any event, it seems that those who were arrested and humiliated during the raids, have been let off the hook. What steps do you think must be taken, to stem judicial corruption?
In my personal view, I think the October raids on the Judiciary were necessary. Unless we want to continue to deceive ourselves, the perception was [and still remains to some extent], that the Judiciary was for sale to the highest bidder. One of the principles of the Rule of Law is that, no-one is above the law. In 2015, Brazilian police raided the homes of the former President and current Senator Fernando Collor and two other sitting congressmen, and in 2016, raided the home of its ex-President Lula da Silva. Based on my reading of the EFCC and DSS legislation, I do not think that the manner in which the raids were carried out breached the rule of law. Earlier this month, the Austrian police conducted raids targeting offices and staff of the main domestic intelligence service. I do not think the Judiciary should be exempt.
As to the fact that most of the Judges have been let off the hook: what I hear on the street is “the executive investigated corruption claims against some of its officials and cleared them, likewise the Senate, why should the judiciary be different?” If the profession really wants to stem judicial corruption, we as Lawyers, need to be courageous enough to stop soliciting favours from the Judges, stop offering them inducements, and then build a rock solid case against the few Judges who drag the name of the vast silent majority down into the mud. Corruption cases are caught with hidden cameras and microphones, marked money and investigative journalism, which produces an irrefutable mountain of circumstantial evidence. You were recently reappointed as a member of the World Bank Group Sanctions Board. What is the function of this body? To what extent can Nigeria leverage on that?
My membership of the World Bank Sanctions Board, has been a real eye-opener. I was appointed by the President of the World Bank in November 2014 for a 3 year term, shortly after losing the NBA Presidential elections. My tenure has since been renewed for a second 3 year term. The Sanctions Board, is a totally independent administrative tribunal comprising 7 ‘judges’ who handle cases involving ‘sanctionable’ practices associated with World Bank projects. The members of the Board are independent of the World Bank, and represent the major economic regions of the world. I am privileged to be the first Nigerian appointed to the Board.
“I HAVE CONTESTED NBA ELECTIONS FOR THE NBA PRESIDENCY TWICE BEFORE, AND I CAN CONFIDENTLY SAY ANYWHERE, THAT THE PREVIOUS DELEGATES SYSTEM WAS CORRUPTION RIDDEN”
A ‘sanctionable’ practice is defined in the Sanctions Board Statutes, as an act that involves fraudulent, corrupt, collusive, coercive or obstructive practices, in the context of a World Bank assisted project. The Respondent in the proceedings, is usually a World Bank contractor or consultant involved in a World Bank financed or supported project anywhere in the world, alleged to have engaged in a sanctionable practice.
What I find most interesting about the assignment, is the standard of proof ; once the case is put forward by the prosecutorial arm of the World Bank, we are required to determine whether it is ‘more likely than not’ that the Respondent engaged in a sanctionable practice. Of course, allegations of bribery, corruption and fraud may be difficult to prove ‘beyond reasonable doubt’, which is the criminal law standard. However the burden of proof, still starts with the prosecutorial arm, and then shifts to the Respondent. Perhaps, it is time for Nigeria to consider changing the burden of proof in financial crimes and corruption cases, to a ‘more likely than not’ burden, which is akin to the civil standard of ‘balance of probabilities’.
You are a seasoned Arbitrator, well known for Alternative Dispute Resolution, way beyond the shores of our country. Why does it seem that Arbitration has not caught on well in Nigeria? Why do Nigerians, and indeed Africans, tend not to see Arbitration as a final dispute resolution mechanism, and usually proceed to court when they are dissatisfied with the award, resulting in spending longer periods of time resolving disputes, when part of the essence of Arbitration is to shorten dispute resolution?
I actually think that, arbitration has caught on quite well in Nigeria. What many of us have refused to accept is the finality of the award. We see it as an alternative to litigation, but forget
that the review process is extremely limited. When arbitrators are appointed on a ‘patronage’ or ‘jobs for the boys’ basis, there is a tendency to want to appeal against an unsatisfactory award, on the ground that the arbitrator was wrong, forgetting that in arbitration, an arbitrator is allowed to ‘get it wrong’ as long as it does not amount to misconduct. Once we ensure that arbitrators are appointed on the basis of technical knowledge, merit and expertise, then the tendency to appeal the award will die down, as the arbitrator will fully explain in the award, why he or she has reached the decision made in the award. If we are honest with our clients, we will then advice them that the chances of successfully setting aside the award are very slim, or non- existent.
You are always on the move for one arbitral assignment or the other. As one who has distinguished herself in litigation, up to the point of silk, why do you prefer Arbitration to Litigation?
The only difference between arbitration and litigation, is that the former is controlled by the parties. The amount of work required to prove your case in each instance, is the same. I just found it frustrating to have prepared the case for trial, and the court is not sitting, or unable to hear me because the other side has asked for an adjournment. If parties agree on a hearing date in arbitration proceedings and one party later asks for an adjournment, the arbitral tribunal may not automatically grant it; instead the claim may be thrown out, and the other party asked to proceed with its counterclaim if it has one. If granted, the costs of the adjournment are very heavy, and may include the costs of the venue for the day, the arbitrator’s fees for the day, and all costs incidental to the hearing [witness attendance and administrative costs]. If you will incur costs of N300,000 for an adjournment, it had better be with the approval of your client.
You have been quite prominent on the international legal scene. Nigeria is not only the most populous nation in Africa, we also pride ourselves with having the biggest and most vibrant Bar Association. How can the NBA be positioned to lead other Law Societies and Bar Associations in Africa, especially in this era of engaging other advanced jurisdictions in WTO agreements, etc?
The effectiveness of an association is not a function of its size, but how it is managed. Our current President, has commissioned professional studies and obtained reports which show how the NBA must be restructured, if we are to take the lead amongst other Bar Associations in Africa. The first thing is a professionally structured, staffed and managed Bar Secretariat, and an association in which our National Officers are honorary and titular, and not engaged in the day to day running of the association. I believe this report was submitted to the last NEC meeting for approval; hopefully, it will be accepted and implemented.
The issue of sexual harassment of female Lawyers by their principals, has become a growing concern. For a profession with such a noble background, how can this be addressed?
Sexual harassment should not be condoned anywhere, and especially not in the legal profession. I urge all female Lawyers who have been harassed in this way, to report to the relevant NBA Branch, as if proven, it amounts to professional misconduct. I would urge them, however, to obtain some sort of proof to support their claims, text messages, emails, covert camera surveillance. We need to build a case in the same manner as we would, if acting on behalf of a client.
Every year, over 7,000 lawyers are called to the Nigerian Bar. Aren’t we producing too many Lawyers? Is Nigeria Over-Lawyered?
Based on our population, I do not think that Nigeria is over-lawyered; however, the Bar Association needs to do more to create awareness of citizens’ rights, as well as the need for legal services. Lawyers are not just for going to court to file cases. How many villagers sell farmland in the village, or use them as security for a ‘friendly’ loan without using a Lawyer? How many of us, the elite have wills, or buy a property off-plan without consulting a Lawyer?
In the past few months, there have reports across the country, of Lawyers being physically assaulted by policemen in the course of their professional duties. Only a few weeks ago, NBA Ikeja Branch issued a notice for a protest over this worrisome trend. How can this trend be stemmed?
We are Lawyers, we should know the law, and we should know that the right of arrest, does not include the right to brutalise or assault anyone. Perhaps, the Lawyers concerned do not want to institute litigation to obtain redress for these breaches?
“I AGREE THAT THE NBA HAS LOST ITS VIBRANCY, AND I PUT THIS DOWN TO THREE REASONS: FIRSTLY THE STRUCTURE OF THE ASSOCIATION WHICH DOES NOT ALLOW FOR CONTINUITY IN PLANS AND POLICIES; SECONDLY, THE ASSOCIATION IS NOT PROFESSIONALLY MANAGED, AND THIRDLY, THE MANNER IN WHICH ELECTIONS INTO NATIONAL ELECTIONS WERE CONDUCTED IN THE PAST”