Introduction
News that the Department of State Services (DSS) has recently become involved in determining the suitability or applicants for the prestigious rank of Senior Advocate of Nigeria (SAN), has been met with disbelief verging on horror – justifiably so. Yes, disbelief, because the eligibility criteria for the award of the rank and the rules for its actual conferment are clear and unambiguous: none of them even remotely suggests that applicants might constitute a security risk as to warrant the scrutiny of the Secret Police (which is what the DSS really is).
This is because the agency’s mandate, as spelt out in its enabling law (Section 3 of the National Security Agencies Act) is as brief as it is straightforward, and it is simply this:
“(a) The prevention and detection within Nigeria of any crime against the internal security of Nigeria and
“(b) The protection and preservation of all non-military classified matters concerning the internal security of Nigeria”.
Legal Practitioners Act
As for the Legal Practitioners Act, the relevant provision dealing with the award of ‘Silk’ (Section 5(2)) simply states that “a person shall not be conferred with the rank of Senior Advocate of Nigeria unless he has been qualified to practice as a legal practitioner for not less than ten years and has achieved distinction in the legal profession in such manner as the (Legal Practitioners Privileges) Committee may, from time to time, determine”.
This stipulation is backed by the Guidelines for the Conferment of the Award, (the latest iteration of which was released by the LPPC in 2022), simply states that, apart from being 10 years post-call, an applicant or candidate must provide and possess the following (as the case may be):
i. Evidence of judgements which he or she played a significant role as an advocate consisting of twenty final judgements of the high court, five in the Court of Appeal and four in the Supreme Court;
ii. He or she must be of good character and have no pending disciplinary complaint against him/her;
Additionally, he or she must possess:
a. High professional and personal integrity;
b. Sound knowledge of the law and excellent advocacy skills;
c. Demonstrate:
i. tangible contribution to the development of the law through written works, and/or lectures at national or international conferences;
ii. leadership qualities and loyalty to the legal profession including payment of practising fees and undertaking pro bono cases.
This is also applicable to Lawyers in the academia.
2022 Guidelines
Given the absence of the controversial provision in the LPA, the question is whether the 2022 Guidelines issued under the hand of the Chief Justice of Nigeria makes such a stipulation. The answer appears to be in the affirmative, as Section 23(2) thereof provides as follows:
“The list of candidates will also be sent to the ICPC, the EFCC and SSS for a confidential report to be issued within 21 days as to whether any of the shortlisted candidates is or has been the subject of any petition, investigation, prosecution or conviction”.
I believe that this is curious, if not outrightly problematic, because, to the extent that the Guidelines are in the nature of subsidiary legislation (or instruments), it is clear that they derive their validity from the main or principal statute. See GOVT. OF OYO STATE v FOLAYAN (1995) 8 NWLR Pt. 413 Pg. 292 @ 327; ISHOLA v AJIBOYE (1994) 6 NWLR Pt. 352 Pg. 506 @ 621.
Accordingly, the latter cannot be at odds with the former, and it must be in accordance with the authority or mandate conferred by the principal statute: OLANREWAJU v OYEYEMI (2001) 2 NWLR Pt. 699 Pg. 229 @ 255. In other words, a subsidiary legislation cannot contradict or over-ride the principal legislation: KENNEDY v INEC (2009) 1 NWLR Pt. 1123 Pg. 614 @ 64(CA).
It is also the law that, for a subsidiary legislation enacted by a multi-member body (such as the LPPC) to be validly enacted, it must be authenticated or bear the imprimatur of at least 2 members of such a body. See Section 27(2) of the Interpretation Act. That is the situation in this case – where the LPPC consists of 15 members (vide Section 5(3) of the LPA).
However, contrary to this provision, the 2022 Guidelines were endorsed by only the Hon. Chief Justice of Nigeria. This defect may, therefore, undermine its legitimacy and impinge on the validity of provisions of Section 23(2) of the Guidelines which contain the controversial prescription. I submit that this is all the more so because, given that they encroach on the presumption of innocence under Section 36(5) of the 1999 Constitution, they are required to be given “a strict construction in the same way as Penal Acts (and therefore) interpreted so as to respect such rights, and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted”: per Aniagolu, JSC, in AFOLABI v GOV. OF OYO STATE (1985) 2 NWLR Pt. 9 Pg. 734 @ 752H.
Since the principal object of statutory interpretation is to discover the intention of the law-maker, would it not be a stretch to presume that, in enacting Section 5(3) of the LPA, the National Assembly intended to share (or even outrightly cede) the vetting or screening process of candidates for SAN between the LPA and the three law enforcement agencies stipulated in Section 23(2) of the 2022 Guidelines as aforesaid. I humbly submit in the affirmative.
I believe that if that was the intention of the National Assembly, it would have expressly stated so. Accordingly, to the extent that the LPA is silent on what role, if any, which the said agencies (not just the SSS) should play in the process, the expresso unius est exclusio alterius principle of statutory interpretation applies to negate any such presumptions.
It may be observed, in passing, that even the 2023 Rules of Professional Conduct for Legal Practitioners is doubtful, given its flawed execution by only the former Attorney-General of the Federation, instead of at least two members of the General Council of the Bar as required by a community reading of Section 27(2) of the Interpretation Act and Section 1(2) of the Legal Practitioner’s Act. But, as I said, this is by the way.
Conclusion
A candidate or applicant for ‘Silk,’ in the absence of any credible or formal complaint against him or her (the provision for which exists in the Guidelines aforesaid), is presumed to be of good character. Even where such a complaint is made, once the candidate is able to defend his or her integrity to satisfaction of the LPPC, he or she is deemed to be a fit and proper person to be conferred with the rank – all other things being equal, of course.
Any other view would be an invitation to extend such scrutiny to every student for admission to Law School – if not the university itself, as, otherwise, what would be the basis or reason for restricting it to only SAN applicants? What is good for the Goose, should be sauce for the Gander.
It follows that, in my humble view, the reported involvement of DSS in the SAN screening process is ultra vires that agency and is an erosion (if not quite abdication) of that function, which is statutorily the exclusive preserve or the LPPC. This is unfortunate because, it is simply uncalled for, unjustifiable and cannot be rationalised by any standard or yardstick whatsoever.
Suffice it to say that, the LPPC should scrap that practice forthwith, as it is an ill-wind that blows no one any good.
Culled: Thisday