Recently, a group of lawyers in the National Assembly came together to inaugurate a body known as ‘The Forum of Lawyers in the Nigerian Legislature’. This forum is made up of senators and members of the House of Representatives as well as staff of the National Assembly who are lawyers. The body also includes lawyers in other legislative bodies in the country.
Convened by Senator Ita Enang, the association is to ‘promote cooperation, networking and interaction among its members, as well as ‘develop legislative practice as an enviable area of legal practice in Nigeria’ among others. Members of the forum also want legislative practitioners to be recognised and qualified to be honoured as Senior Advocates of Nigeria.
The last two parts of the forum’s mission statement will form the kernel of this contribution. In this regard, it is important to attempt a definition of the terms ‘Legislative practice’ and ‘lawmaker’, both of which may be deployed in confusing ways in the body of this essay, throwing up the need to have them exactified.
Legislative practice refers to the professional practice of lawyers (some of who are elected and others unelected) who ply their trade in the area of lawmaking in the legislature, in contradistinction to other legislators who are not lawyers but are also lawmakers.
The unelected members, one should presume, are lawyers employed as legislative draftsmen and others whose duties are technically tied to the legislative process, as against lawyers simply engaged as civil servants. The phrase legislative practitioner therefore means legislative legal practitioner. The ‘legal’ there is silent for the purposes of brevity and the ease of pronunciation.
Lawmaking is part of the duties of a legislator who as a member of the national or state legislature is also a politician and a member of a political party, a member of several committees and caucuses who is involved in oversight functions over government ministries, departments and agencies and also votes in all issues that require legislative assent or decision and above all is also a statesman by virtue of their oath of office.
Lawmaking as the term implies, involves the creation of new laws, the addition of new section to a pre-existing law, the insertion of something into an existing law, the repealing of an existing law, the deleting of a portion of an existing law, the deleting and replacement of an existing law etc. The product of this exercise includes Laws of the Federation and those of the 36 states of the federation and the Constitution of the Federal Republic of Nigeria, among others.
Having established this background, let us consider the third arm of the objective of this forum, which is to have their members recognised and qualified to be honoured as Senior Advocates of Nigeria.
To qualify to be honoured with this privilege, a legal practitioner should have attained a standing of at least ten years in addition to having distinguished themselves in the profession. The conferment is made in accordance with the Legal Practitioners’ Act 207 Section 5 (1) by the Legal Practitioners’ Privileges Committee, headed by the Chief Justice of the Federation as Chairman.
The major impediment to this proposal is the legal practitioners Act which does not seem to provide for this intended class of legal practice for the purposes of the conferment of this honour. But assuming this legislation can be amended, or this novel practice can be accommodated under the general interpretation of the Act in its current state, the evaluation of candidates’ competence will be based, as is currently the practice on “weighted criteria” which are integrity, knowledge of the law, leadership quality, contribution to the development of the law, leadership qualities in the profession, strength and quality of reference received by candidate (from judges) and quality of law office/library.
The committee conducts a physical inspection of law offices of all applicants who are shortlisted. This inspection is aimed at evaluating the level and quality of the facilities provided in the office. The inspection assesses the size and quality of the library; quality of office space and other facilities available; number of junior counsel or partners in chambers, and number and quality of support staff.
The number and quality of staff employed by the legislative practitioner will be called to question. In the United States, for instance, the average senator hires about 35 members of staff, while the representative hires about 20. Budgets for staff are determined by the population of the state. Senators from California, the most populous state get more funding for staff than those from Wyoming, the least populous state. Indeed, some senators retain over 50 members of staff, while some representatives hire up to 25, different from part-timers.
Now, given that budgetary constraints may not allow this level of staffing, the legislative practitioner is likely to be assessed on the number and quality of legal staff. These legal staff will function mainly as researchers. A researcher is key in the incubation of bills. His work will look at the history of proposed legislation, determine whether kindred laws have been amended or repealed or a court has interpreted them, overturned them for conflict with the Constitution, limited them, by way of exceptions or questioned them. This is because judges also make laws. The interpretation of a law by the courts is what the law is whatever its letters say.
The committee also considers how good and up-to-date the facilities in the candidate’s law office are. Given the nature of the legislative practitioner’s work and the size of office space allotted them, their physical facility should include a legislative library which should contain all the relevant books and publications you will find in a typical law library in addition to laws and publications on legislative practice.
The Legal Practitioners’ Privileges Committee, in assessing the candidate’s leadership qualities considers how much the candidate has demonstrated “clear qualities of leadership and loyalty to the legal profession”. Here, a legislative practitioner will be subject to certain professional ethical codes different from the rules of the Senate and the House of Representatives, and also his party. He will now come under a third supervening authority.
For instance, how does he vote? Whereas his oath of office admonishes him to protect, preserve and defend the Federal Republic of Nigeria, he functions, to some extent within the dictates of his party, which on the strength of the judgement of the Supreme Court in Amechi v. Omeiha, is actually the owner of the office he occupies while he is a representative of the party for his district or constituency.
Now what this means, for instance, is that a legislative practitioner who voted for tenure elongation otherwise known as Third Term in 2002 may not have expected to be shortlisted for the rank of Senior Advocate of Nigeria on account of public policy and the likely disposition of the Legal Practitioners’ Privileges Committee, if such privilege were available to him then. So the cause to which he lends his vote will be important and subject to scrutiny.
There is hardly any legislature in the world that has not experienced indecorous conduct by members that range from unacceptable altercations to outright fisticuff. The rules empower the president or the speaker to levy appropriate punishment. But this hardly happens.
A legislative practitioner cannot have the liberty of this level of indiscretion because even if his legislative chamber is immune to embarrassment, such conduct will disqualify him from being elevated to the rank of a Senior Advocate of Nigeria. His conduct in and out of the legislative chambers has to be seen to be exemplary.
A candidate’s contribution to the development of the law is adjudged based on “tangible contribution” the candidate has made through case law or publications in recognised scholarly journals or scholarly presentations at national or international conferences .Here, the development of legislation squarely fits the development of the law in my view.
The legislative practitioner should be identified with individual bills. He should also be actively engaged in the processes leading to the passage or rejection of executive bills in such a way that beams professional illumination to the nuances of lawmaking. He should generally be seen to be industrious. Using just one case, Senator Patrick Leahy, a lawyer, therefore a legislative practitioner, our Nemesis of the now popular Leahy Law in the United States of America has his imprint in110 bills since 1975! A record, one would say.
Away from the rules of the Legal Practitioners’ Privileges Committee, the legislative practitioner should also expect to be in the court of public opinion. He should bear in mind that Laws are not made for the archives. They are tailored to fit changing circumstances and constantly amended to checkmate the evolving dynamics of time.
He should know that no modern nation can be governed by ancient laws, and that no people can claim true independence when their received colonial laws are not improved on. He should also recognise that the applicability and enforceability of laws are inextricably interlinked with contemporaneous sign posts and logistical elements therefore a law which predicates its enforceability upon certain contingencies which apparatus no longer exists or are comatose is no law.
This is the reason some offences in our Criminal Code attract penalties of two naira at a time one may need to go to the central bank or the national museum to sight a naira coin. It is the reason the law of libel exists only in academic books with fines for serious defamation of character attracting ridiculous pittance as a consequence of which gravely injured parties are simply left to lick their wounds with deep consternation and indignation.
The legislative practitioner should acknowledge that the last general elections were fought like civil war in the press- no rules, no pattern, no inhibitions, no holds barred-and reputations mauled, crushed, mangled and assassinated all because of our laws or the lack of them. It will now be his duty to identify these anomalies and advocate a course of legislative action.
Most of our legislators are good and can hold their own in the committee of parliamentarians anywhere in the world. What they need is to rework their mindset away from our established legislative tradition. This tradition seems to accord greater priority to other non- lawmaking functions of the legislature to the detriment of the creation of new legislation and the amendment of our obsolete laws.
The good news is that many are already holding aloft the torch as legislative practitioners. I recall having sparred with then Honourable Yakubu Dogara, now speaker of the House of Representatives in my opinion published as Guest Columnist of Thisday newspaper of 6 August 2013.The article captioned ‘Misconstruing Impeachment Parameters’ was centred on his proposed bill before the House of Representatives calling for an Act to alter the provisions of Section 143 of the 1999 Constitution. It sought “to remove ambiguities in the process of removing the president and the vice-president from office’’.
Even as I disagreed with him, his erudition and industry were not lost on me. As he attempted to amend the constitution to obey the contours of his imagination, I felt obligated to tear down every scaffold of his intellectual construct that was at variance with my expectation of a legislation of that weight and import.
I support the initiative of the Forum of Lawyers in the Nigerian Legislature and hope that they receive the endorsement of the Legal Practitioners’ Privileges Committee for their stated objective. Senator Ita Enang.
This article was originally published on Thisday.