Innocent Anaba
14 November 2008
interview
MR Olisa Agbakoba, Senior Advocate of Nigeria, is the former President of the Nigerian Bar Association (NBA).
In this interview, he spoke on life after heading the NBA. He also made case for the creation of Arbitration Courts at both the state and federal level, so that arbitration cases arising from businesses conducted in Nigeria, would not be taken to London and America for its resolution, adding that such courts will institutionalize arbitration practice in Nigeria and save the country, huge foreign exchange.
On the annual/delegate conference of the association, held in Abuja , which some lawyers criticized for the non-availability of bags and conference materials, he called for a reform of the association's conference planning.
On the economy, he warned that Nigeria needs to get its acts right, otherwise, the country's ambition of attaining the status of 20 most industrialized by 2020, 12 years away, will be a mirage. He advised that Nigeria should emulate the economic policies of countries of South and Far East Asia , which were tailored to serve the peculiar needs of the people, instead of depending on the International Monetary Fund (IMF) and World Bank policies, which had failed to develop the country.
Since you left the NBA, much has not been heard of you. What have you been doing?
I believe I have been more organised and more predictable since I left the NBA, and I am beginning to do new things, which I think are as important as far as I am concerned as the work I did in NBA. Essentially, I am a member of the vision 2020 National Steering Committee, which was set up to challenge Nigerians and all the key actors on whether it is possible for Nigeria to attain the status of the 20 most industrialised countries in the world which is 12 years away. There is a particular Sub-Committee, which I am in and that is the Financial Services Sub Committee. Governor Soludo of the Central Bank chairs this Committee.
The Committee is dealing with how the Financial Services Sector can lead Nigeria to its goal by 2020. To do that, we are looking at the legal framework, we are looking at the regulating institutions and we are looking at the enabling laws generally. I think it is very apt now that there is an international financial crisis. So the model we are going to learn from, the law that we are going to learn from were those of the IMF, the World Bank, World Trade Organisation and the Multilateral Agreements that control the International Financial Capital.
But now, the Chinese have revised the international economic order because China was the country that was socialised while America was the country that was privatised. But today, it is the other way round, America and the West are socialising, they are buying up their banks and the Chinese are privatizing. So there is a peculiar economic turmoil in the world and I think it presents big challenge for Nigeria .
So, I as the Chairman of the Legal Implementation Committee of the vision 2020 financial services sector project, our challenge now is what we can add to the Nigerian financial landscape that would boost development, which is the work I am presently engaged in. Why is it that India, Dubai, Brazil, Malaysia and Singapore, the so called developed but still developing countries managed to perfect a formula for development which we have not? The answer lies in building our own institution from our own perspective.
There is no one prescription like the World Bank tells us. You see what is happening by trying to liberalise our market, which they tell us to do, their market collapsed. One thing that I know which must come out strongly is that we need a legal frame work, which we are trying to develop. We must do it from the point of view of the Nigerian experience. I was happy that about three weeks ago, a national newspaper had the argument on both sides in relation to arbitration.
The argument by our friend in the Chartered Institute of Arbitrators UK branch and the Chartered Institute of Arbitrator Nigeria proper, is as far as I am concerned, miss-focused in the last 30 years because arbitral practice is worth up to about N5billion. Arbitral practice is not in Nigeria for the simple reason that we don't have arbitral institution.
When I was at the New York convention on arbitration, I had interactions with the Chinese and as President of the NBA, I traveled to China and on my return, I briefed the Federal Attorney General and the immediate past Governor of Lagos State. I am happy that the governor of Lagos State has now established a Lagos Court for Arbitration.
That is very important because it is the very first step in institutionalising arbitration practice in Nigeria . We need strong arbitration institutions that can compete with what they have in London and the USA . That way, our arbitration sub-sector will grow. Such court will also save us the huge foreign exchange we spend in having our disputes resolved in Europe and America .
What does Nigeria stand to benefit from Arbitration Institution?
Recently I had a client who sent me to go to London to appear as an expert witness in an arbitration matter. I was shocked that everything about the case is Nigeria . The vessel is a Nigerian vessel, it was used by Shell, paid for by NNPC but we are yet paying arbitration experts in the United Kingdom and I"m now forced to spend money and fly on British Airway and go to the UK . So a country will not develop if you don"t close all these gaps. Our challenge is to look at the economic system and to see what models will best enhance our development. For instance the Chinese have a peculiar type of privatization law.
What they do?
They know that government is not good at business, so the Chinese government buy what we popularly call here Hiace. China gave it a different name, because they have an exclusive franchise from Toyota . 100 percent of the shares are owned by the Chinese Motor Corporation but it is run as a private company so that you will not even know that it is owned by the government. That model of privatization has worked.
Our own model, which the Americans called short therapy, has failed. The legal framework has collapsed, the institution has collapsed and we are where we are today. The result is that, few people have benefited from the resources of State owned enterprises for the last 30 years. So we must change this legal framework because they have all failed and if we don't get it right in the next 12 years, we may never get it right.
How do you feel about the proposed establishment of Lagos Court of arbitration?
I was very thrilled when I got the notice for the public hearing on Lagos Court of Arbitration. There is another one being planned at the National level, it is called the National Court of Arbitration. When you put these things in place, it will mean that when our Western friends tell us to come to London , we will say no.
This is because we are going to put in a clause to read "arbitration in Lagos " in all our agreements and that means we will begin to have arbitrator and their allied services. A country does not develop by not understanding what its economy is. In United Kingdom for instance, they have a very advanced educational system which they market worldwide and it is worth about ££8 billion in a year, just from education and they don"t joke with foreign students. They charge you and the incomes they get from it, they use to run their system. It is fitting that something has eventually been done about arbitration court in the country and the NBA should be given the credit for pioneering Institution Arbitration in Nigeria .
How can we make arbitration practice very lucrative in Nigeria ?
We have to start somewhere. A lot more need to be done by way of strengthening the ethical quality of lawyers and that is why as the President of the Nigeria Bar Association, I called upon the Attorney General of the Federation to convey the general meeting of the Bar, which is a body that regulates legal practice in Nigeria.
Contrary to the general wisdom and convention, the NBA is not as strong a body as you might think. The NBA does not control its finances, neither can it make any law. The association depends on the Attorney General of the Federation. If you look at the Legal Practitioners Act, the Attorney General's role in the affairs of the NBA is substantial. You need him to do a lot of things. So there is a need for some sort of revolution in attitudes, relating to how lawyers conduct themselves. If you lose a case and you know you have lost, the next thing is to advice your client to take it, unless you feel that there was a great discourage of justice by the decision handed down by the court.
Is there any relationship between Law development and economic development?
The fact is that law plays a strong role in the way a nation develops and a nation develops simply by providing the basic things of life. What Nigerians would like to see is infrastructure development, good policies, efficient courts system and access to credit, housing, and employment. Nigeria is very poor but at the same time a very rich country. The reason why Nigeria has not grown like other developing countries is that we have not realised our potentials. It is unbelievable that there is no law that supports consumer lending.
There is also no law that supports the bank to make the right and informed decision to give people loan. When you go to take a loan, how do they know that you are credit worthy? So banks don't give loan because they cannot tell. So they give to the likes of Dangotes or people that they know. So banks are selective. Society does not grow by picking and choosing whom you give loan. Credit is the oxygen that drives an economy.
The bank in Nigerian are not giving loans, Nigerian banks are not doing banking. They were doing round tripping until Soludo came and put in consolidation check. The banks have now found a new way, by doing margin lending. So if a bank has N30billion rather than give loan to basic customers they channel the money through stockbrokers.
Many people know you as human rights activist, but it seems you are no longer very active in human rights matter. What brought about this changed?
What has changed is the approach but I have not lost sight of key element of inclusion and that is why my NBA administration was the most inclusive. I am not sure I have to wear human rights cap to continue to have that express agenda. Development law is wider than human rights. In the development discussion, you have governance, electoral process, constitutionalism, strong laws and human rights. Everything is inclusive. In fact, it is a total package and that is why I like development. It is the most comprehensive agenda you can ever think of. You can see what the Obama"s agenda is. He had said, he will elevate Main Street and was going to tax Wall Street.
Wall Street here refers to corporate America while Main Street means ordinary people, who march on the common street. That is development. If I were in America that is the type of agenda I will be driving because it will embrace everything. So you find that people of my ilk tend to be on the left. I have never pretended to be on the extreme left. I have always been on the center left. So if I were in the Democratic Party in the USA , I will be in the center left. Exactly where Clinton was, Obama is. In Nigeria there are some people who are more radical.
You have the likes of Gani Fawehinmi, a born radical, you have Femi Falana, you have Bamidele Aturu. We are all of the same left camp. In fact they call me a decent liberal. So, development is the key of the game and that is why I am in development.In fact it is my new cap.
Considering the confusion that attends the NBA conference annually. With the benefit of hindsight, what is the proper solution to this problem?
That is a very good question. Do I think my formula for Abuja conference would have pulled off a good conference? I thought so. Did the formula in Ilorin work? The answer is yes but there were problems. Some of these problems are organisational, and some are cultural but the biggest challenge that the NBA faces, is that many people will decide to register late for the conference and worse, some will even register at the conference venue, when arrangement had been concluded based on the number the association received their registration form before the conference began and many people for that matter wanted to attend the conference.
I was in South Africa Airport , when one of my former staff asked me why he did not get conference bags even though his office paid N2m. But their money hit our account September 4, 2008 and that was after the conference. On the July 1, this year, I asked the Director of Administration of the NBA, Osita for the record of registered participants. Do you know the number? Just100. So I was scared but suddenly six thousand participants registered for the conference. You see the way we register create problems.
Another problem is facilities. When my daughter did her wedding, I was shocked that in Lagos , a mega city, you can hardly find a venue that will seat 2000 people comfortable. Then there is this attitude of people not wanting to pay their way into the conference and it is a big problem. In Onitsha , National Executive Council (NEC) meeting, I said asking lawyers to pay N5,000 for a week is not feasible. If you charge a one-year lawyer N5,000 and he practices law at Ozubulu (a town in Anambra State ) he will tell you that his entire income in a year is just that amount.
Then look at the conference bags. You can"t plan for conference bags when you have no idea how many people are going to turn up. About 15, 000 people turned up, but we planned for only 8 thousand conference bags based on the number of people that registered. Essentially, the conference thing requires total reform. I think from what we have seen, a major conference reform should take place. Fees will need to go up.
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