THISDAY

‘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”

 ??  ??
 ??  ??
 ??  ??
 ??  ??
 ?? PHOTOS: Kolawole Alli ?? Mrs. Funke Adekoya, SAN
PHOTOS: Kolawole Alli Mrs. Funke Adekoya, SAN
 ??  ??

Newspapers in English

Newspapers from Nigeria