The unraveling of a ‘brave new bar’ – how NBA elections were corrupted and rigged

“The manifestation of the wind of thought is not knowledge; it is the ability to tell right from wrong, beautiful from ugly. And this, at the rare moments when the stakes are on the table, may indeed prevent catastrophes, at least for the self” – Hannah Arendt

Shortly after 07:00 hours, Lucy (real name protected), received a code on her hand-held device supposedly to enable her to cast her vote in the ballot to elect a new leadership for the Nigerian Bar Association (NBA). The two-year tenure of the elected officers of the NBA led by Abubakar Balarabe (AB) Mahmoud, a Senior Advocate of Nigeria (SAN), was due to lapse at the end of August 2018. Under the constitution of the association, the ballot was to have concluded before the end of July. A cocktail of implausible cock-ups had conspired to defer the completion of the ballot by three weeks beyond the constitutionally permissible date.

More than one hour before Lucy received her voting code, shortly after 06:00 hours, however, Auwalu Yadudu, professor of Law and former legal adviser to General Abacha, in his capacity as Chairman of the NBA’s Electoral Committee (ECNBA), had announced the outcome of the elections under the supervision of NBA President, AB Mahmoud, SAN. In the event, having kept vigil for over 36 hours, Lucy found that she could not vote. The code she has received was useless. The question of how a voting portal that was supposed to have been shut down one hour earlier was still able to generate voting codes when it did may never be answered.

Meanwhile, according to the tallies announced by Yadudu, the contest for the presidency of the NBA had come to an end with a winner who scored 4,509 votes to beat his closest rival who got 4,423 votes. A third candidate scored 3,313 votes. He also dispensed other numbers anointing various other supposed winners and losers.

Moments before Yadudu’s announcement, the campaign organization of Arthur Obi-Okafor, a Senior Advocate and one of the candidates for the position of President of the Bar, had addressed a letter to him citing “inexplicable and strange surges of votes” for the candidate announced as winner, and alleging “glaring incidences (sic) of hijacked votes”. In his letter, Obi-Okafor announced his withdrawal from the contest, declaring categorically that he “cannot accept the outcome of the result”. Swiftly on the heels of Yadudu’s declaration, Ernest Ojukwu, another law professor and Senior Advocate who also ran for the office of Bar president, denounced the election as having been characterized by “massive vote buying, vote capture, rigging and a skewed process.”

The figures announced by the ECNBA suggested a very spirited contest. In reality, the outcome was pre-determined. The ECNBA and the NBA leadership of AB Mahmoud SAN had presided over the most willfully manipulated ballot in the history of the association. They created electoral chaos and then administered rigging as the cure for it, choosing to invest the authority of the President of the NBA in a manner that makes it compromised and vulnerable to political blackmail. The full story of how this was achieved defies the limitations of the present medium. Four highlights of the story, however, deserve to be told. It is a tale of disqualification à la carte, implausible incompetence, mass disenfranchisement and digital heist. In

Disqualification à la carte

At the beginning of the year, there were four aspirants to lead the NBA. One of them, Afam Osigwe, was enrolled as a lawyer in 1999 and had previously served as the General-Secretary of the NBA for two years until 2016. Mr. Osigwe was seen as representing a younger generation of lawyers in an election in which the energy and votes lay with young lawyers. As an electoral proposition, his ambition was clearly dangerous. If he won, Mr. Osigwe would have retired at least one generation of NBA politicians. So, at the beginning of July, the ECNBA decided to disqualify him Explaining the decision of the Committee, Professor Yadudu claimed that Mr. Osigwe had “not met the requirement of his membership dues and he could not also clarify his payment of…. bar fees.”

This story only made sense to the ECNBA and the NBA leadership. To be eligible to vote, a lawyer had to fulfill four basic requirements. First, the person had to have been enrolled as a lawyer in Nigeria. Second, he or she must have paid their annual practicing fees as well as branch affiliation dues by the end of March 2018. Third, the person must adhere to one of the 124 branches of the association. Finally, the person must have paid their branch membership dues also by the end of March 2018. Naturally, a contestant for office in the NBA had to fulfill the basic requirements for eligibility to vote. In addition, candidates for office had to also have paid their practicing and branch dues for at least three consecutive years preceding the election.

Mr. Osigwe was a member of the troubled Abuja Branch of the NBA. Indeed, he had previously served as a chair of the Branch. In 2016, the branch had a leadership transition that ended in controversy. The then President of the NBA, Augustine Alegeh, a Senior Advocate, intervened. Ultimately, the matter went before the National Executive Committee (NEC) of the NBA and thereafter to the Annual General Conference (AGC) of the Association, who decided in 2016 to recognize Mr. Anumnu as the Chair of the Branch. The AGC is the highest decision making body in the NBA. While there was finality from the NBA leadership, the manner of the decision factionalised the Abuja Branch. With the advent of the AB Mahmoud presidency, the issue was re-opened. His mediation efforts were unsuccessful. Rather than return to the AGC, Mr. Mahmoud sought support of the NEC of the NBA to depart from the decision of the AGC and lift the recognition of Mr. Anumnu as the chair of the Abuja Branch. A court order precluding him from doing this was disregarded. Instead, Mr. Mahmoud proceeded to appoint a Sole Administrator for the Abuja Branch.

With the Abuja Branch factionalised, it became difficult for members to determine which faction to pay their compliance dues to. Caught in this difficulty, Mr. Osigwe decided at the end of 2017 to “transfer” his membership from the Abuja to the Nnewi Branch of the NBA. No one disputes that a member of the NBA can do this under the constitution. Nnewi Branch welcomed him and he fulfilled his membership obligations for 2018 with the Nnewi Branch. Equally, no one disputed that Mr. Osigwe had in fact paid his practicing and branch dues for three years preceding the election. For 2016 and 2017, he had paid with the Abuja Branch. In 2018, he paid through the Nnewi Branch. Somehow, however, Yadudu’s ECNBA and the AB Mahmoud presidency of the NBA manufactured in these facts convenient reasons to disqualify an inconvenient aspirant.

Implausible incompetence

The NBA Constitution requires that voting in its leadership election should be done electronically. This is not entirely too ambitious: the NBA is arguably the most literate association in Nigeria. Every member of the Association brings to the table a minimum of two degrees, one academic and one vocational. This requires the association or its electoral committee to invest in data management, platform security and transparent communication, including voter education. The ECNBA did none of these.

Without information, candidates and campaigns were unable to undertake voter education. Voters were in the dark about what to do or expect. The voting information provided by the ECNBA was regularly incorrect, incomplete or downright mis-leading. In the end, a voting process that was supposed to be seamless suffered at least eight deferrals and one suspension. Every stage in the process was tortured. Unsurprisingly, the result was announced at an hour when, according to Nigerian legend, only witches and wizards returning from an overnight encounter in a coven could be expected to be fully awake. By some coincidence, it required the deployment of very dark wizardry to manufacture the outcome that the ECNBA announced in this process.

To begin with, the Committee had no concept, specifications or parameters for its electronic voting platform. The selection of its platform providers was shrouded in secrecy. If there was any bidding, it was not public. The public communication of the chosen providers occurred by happenstance. This kind of incompetence required practice.

A scandal – known as “Chams-Gate” erupted when it emerged that the voting platform provider selected was Chams PLC. As it turned out, the ECNBA was hardly involved in this choice and had done no due diligence on the provider. If they did, they would have discovered that Chams had provided the platform for the scandalously rigged leadership election of the Institute of Chartered Accountants of Nigeria (ICAN), in 2014. As it turned out, a leading contender for the presidency of the NBA in the ballot was, like the chair of the Board of Directors of Chams, also a director the NBA’s sole bankers, Access Bank PLC. Access Bank in turn was a substantial shareholder in Chams. As summed up by the present writer at the time, “a company substantially owned by Access Bank and chaired by a director of the bank will supervise the voting to elect the leader and principal signatory to the accounts of a substantial customer of the Bank in a ballot in which a leading candidate is a director and lead lawyer of the bank.”

Somehow, the ECNBA missed all of this information, which was publicly available. With public pressure mounting over Chams-Gate, NBA President, AB Mahmoud, himself also the first Vice-President of the Nigerian Stock Exchange (NSE), called a meeting of the candidates, at which he ruled that none of this information was prejudicial to Chams’ involvement in the election. With the relish of an Archimedes yelping at the discovery of floatation, the NBA President announced on 22 July that the voting process shall be “disaggregated into three (3) stages and each stage shall be handled by separate entities or service providers duly appointed by the ECNBA de-segregation of the electoral process.” He itemized these three stages as:

• pre-election: process of compilation and verification/validation of list of voters;
• election: the deployment of the e-voting platform for NBA elections;
• post-election: an audit of the electoral process.

For the pre-election phase, Mahmoud asked the ECNBA to engage new data managers. Despite the scandal around it, Chams was to be retained for “the deployment of the e-voting platform for NBA elections, which it has already developed.” For the post-election audit, Mahmoud promised that “the ECNBA will develop a post-election audit framework and process and may engage an independent entity for that purpose.” Three days later, the ECNBA announced it had engaged a new election data service provider called CRENET. No one had heard of them before and no one knew how they were engaged.

Mass disenfranchisement

One of the consequences of this incompetence was the massive disenfranchisement of voters. In all, 12,245 votes had apparently been cast in what looked like a very spirited contest according to Yadudu’s declaration. In fact, 32,228 lawyers had threshold eligibility to participate in the elections. The 12,245 votes cast represented a mere 37.99% of the eligible voters. Voter verification was deferred at least four times, extended thrice, suspended twice and lasted over a fortnight. This degree of uncertainty had to have been either willful or caused by incompetence. Characterised as it was by frustration, only 14,215 lawyers in the end managed to accredit to vote. In other words, through the manufactured frustrations of verification, 55.89% of voters were firmly disenfranchised before even voting had started.

Hack attack

In their 2018 book How to Rig an Election, Nic Cheeseman and Brian Klaas argue that “once upon a time, to do the dirty of changing votes, you had to be present in the actual polling location. That is no longer true.” According to them, “there is a much more direct way to rig elections with computer technology: hacking vital election infrastructure.” In their 2017 study, “Making Democracy Harder to Hack”, published in the University of Michigan Journal of Law Reform, Scott Shackleford, Bruce Schneier et al point to three vulnerabilities that can be attacked to compromise an election: voter rolls (who can vote), voting machines (who you vote for), and vote tabulation (how many votes each candidate received. In the NBA ballot, all these were on display. It was as if the authors had written a manual for election rigging in the NBA.

Voting rolls supposedly closed at the end of March 2018. However, quite a few persons who paid their practicing fees after 31 March managed to find their names on the electoral roll of the ECNBA. There was never an explanation as to how that happened. In the middle of voting, inexplicable changes occurred in data fields. At a point on 19 August, over 3,000 voters who were not on the list were somehow “restored” to the list.

Meanwhile, Lucy was not the only one who could not vote. In Ahoada, Rivers State, Isaac and Lauretta were unable to vote too – their voting data had been appropriated by some unknown persons who voted under their respective identities. In Bori, another branch of the NBA, the identities of nearly all eligible voters in the Branch had been stolen by undisclosed persons using a common domain, who used the stolen identities to vote. In Kano, Abdullahi Karaye, Assistant-Secretary of the Ungoggo Branch could not vote – someone had stolen his identity and voted with it. All over the country, unknown persons, apparently acting in co-ordination, had miraculous access to voting data and were either using stolen data to vote for other persons or importuning voters electronically to vote for a particular candidate. This was more than just a hack attack. It was joint criminal enterprise. The ECNBA knew this because it was brought to their attention. They chose to look away.

Three domains were implicated in the voter identity theft – openmail, airmail and firemail. In all, at least 1004 votes were attributed to voters whose ballots were traced to these domains. Separately, in the data collection process, the NBA required that voters should provide their e-mail address or phone number. One phone number could not be used for more than one voter. Yet at least 1,706 phone numbers were repeated at least once and, between them, accounted for at least 3,999 votes. One phone number in particular, 0807 410 7787 accounted for 41 voters; 0810 642 1702 accounted for 32 voters, while 0806 402 8401 accounted for 18. Between them, these three numbers alone accounted for 91 votes, that is six votes more than the announced margin of 86 votes between the declared winner and the runner up.

Quite clearly, it is easy to demonstrate that the malpractice in this ballot did not just substantially affect the outcome of the election but determined it. All of this was pointed out to the ECNBA and the NBA leadership before the declared their results. The fact that they went ahead to do so despite being aware of all this confirms the perception that the NBA process was configured to produce a pre-determined outcome. This perception was reinforced by the fact that the campaign of the person eventually announced as winner was heavily dependent for its facilitation by the Chief of Staff to the NBA President. Every effort made to persuade the President to disavow this arrangement or separate his administration from this appearance of pre-determined outcome proved fruitless.

Destroying the Bar

As the NBA vote took place beyond the constitutionally required deadline of July, it was required to go to the NEC for ratification. On Sunday, 26 August 2018, the NEC duly ratified it. Reneging on his undertaking for a post-election audit, outgoing President, AB Mahmoud, now says that is up to his successor. It is worse than asking the burglar to investigate the burglary.

Meanwhile, the case initiated in 2016 by JK Gadzama, a senior advocate, challenging the declaration of AB Mahmoud as winner remains pending before the High Court and will not be decided until long after Mr. Mahmoud has exhausted his term as NBA President. Afam Osigwe’s challenge to his procured disqualification was adjourned to a date in September, long after any orders would be of any value. With this knowledge in mind, the perpetrators of this heist in the NBA are happy to tell anyone who complains to “go to court”, where they know there will be no remedy. This NBA leadership and its ECNBA appears to have lost the capacity, in Hannah Arendt’s words, “to tell right from wrong.”

When he assumed office in August 2016, AB Mahmoud promised #ABraveNewBar. Many took him seriously. On the whole, the performance of the administration has been beneath underwhelming. Fittingly, President Buhari chose Mr. Mahmoud’s valedictory Bar conference to underscore the irrelevance of the NBA he’d led, telling the lawyers gathered for the conference that the rule of law was subject to the President’s thumb. A Bar that was neither new nor brave offered him enthusiastic applause instead of a telling off. In the way it has conducted the transition in these elections, the AB Mahmoud administration assures for itself a prize in the column between infamy and ignominy. It leaves a toxic legacy from which whoever follows it is unlikely to recover neither authority nor legitimacy.

Odinkalu, a member of the National Executive Committee (NEC) of the NBA, writes in his individual capacity.