16th April, 2024
By Ebun-Olu Adegboruwa, SAN
Recently, I was a guest of the Legal Services Department of the Niger-Delta Development Commission in Lagos where lawyers employed by the Commission gathered together for their 2023 Annual Retreat, to deliver the keynote address. The issues raised and discussed are also beneficial to other legal departments in the public sector, thus necessitating the need to share them on this page. It gladdens my heart that a private legal practitioner was engaged to speak to our colleagues in the public sector, as the seeming dichotomy between both does not and should not exist at all.
Introduction:
Law, by its essential character being normative, provides the frame of reference and philosophical underpinning for legal services. Our juris corpus acts as the legal framework of all legal services. From the Constitution which is at the pinnacle of the hierarchy of laws, through legislations/statutory instruments such as acts, laws, by-laws, as well as allied legal instruments such as rules, regulations, guidelines, practice directions, down to judicial pronouncements, etc, legal service providers and stakeholders in all walks of life are provided with very expansively wide range of legal resources which serve as the database and fountainhead from which their legal services flow out. At the heart of every thriving civilization is the law. It is the center piece and bulwark that holds society at all levels together. When there is a problem with the law or the legal system, things fall apart! The center will no longer hold and anarchy is let loose upon the society!
However, the chief end of the law is not achieved if its provisions are not efficiently utilized and properly applied by legal stakeholders to solve real-life problems of the public. It is in this regard that we are poised to explore how best the law and legal services can be repositioned to achieve optimal impact in the public sector. Our approach shall be hugely diagnostic and critical of the deviations and distortions which have led to the undesirable drift in the quality of legal services we now experience with a view to proffering suggestions and recommendations that can help bring about a paradigm shift and repositioning that we need in the public sector. The focal point of our thesis running through the entire framework of this brief discourse as we consider the issue of repositioning legal services is simply to admonish legal stakeholders and service providers in the realm of public sector to return to total and unflinching submission to the “will of the law” or rule of law rather than the whims and caprices of public office holders and politicians with capacity to pollute. It is when and only when the law is relentlessly and unapologetically allowed to have its full course and legal services are based on what the law says that the repositioning we desire can be achieved. It is simply for lawyers to salt and sanitize the legal services that they provide to the public sector with the rule of law. In a nutshell, the repositioning we advocate is a restorative or reformative repositioning much like an astute chiropractor who skillfully manipulates a dislocated bone back to socket.
Conceptual Clarification:
A. Legal Services:
In the formal/narrow, professional, or transactional sense of the term, “Legal Services” refers to the work produced by an attorney or a lawyer for a client. These services include any advice, counsel, or assistance involving law-related matters that helps clients navigate the legal system and protect their rights. Specific examples of services are drafting documents, reviewing contracts, negotiating business arrangements, or representing clients in court. They may also extend to rendering legal opinions, interpreting and applying judicial decisions and influencing legislation. In the Nigerian legal system experience – unlike in the United States and elsewhere for instance, where legal services offered by legal professionals are dualized – the main services offered by Nigerian legal professionals (as barristers and solicitors) are generally fused. In our context therefore, and for purposes of this paper, we shall continue to look at legal services from the focal lens of the species of work produced by that professional who by his training and qualification is called a lawyer.
B. Public Sector:
The general definition of the public sector includes government ownership or control rather than mere function and thereby includes, for example, the exercise of public authority or the implementation of public policy. When pictured as concentric circles, the core public service in central and subnational government agencies defines the inner circle of the public sector. The next circle includes a number of different quasi-governmental agencies that are, however, placed outside the direct line of accountability within government; the outer circle is populated by state-owned enterprises, usually defined by the government’s ownership or it owning the majority of shares. Kai Wegrich, a Professor of Public Administration and Public Policy, Hertie School of Governance thinks that there exists a ‘no man’s land’ or grey area between the provinces of public and private sectors which makes it difficult to clearly delineate the boundaries of the public sector. He writes:
“Scholars are increasingly confronted with the difficulty of defining the public sector. Privatization, delegation of public power (for example, in prisons), the joint public-private provision of services, usually regarded as “public,” as well as institutional rearrangements of the public sector make the dichotomy difficult, especially for purposes of comparative analysis. For some, therefore, the notion of the public sector has lost all conceptual strength, given those problems of defining clear boundaries.”
According to the Hon. Justice Esohe Frances Ikponmwan, Chief Justice of Edo State:
“In general terms, the public sector consists of governments and all publicly controlled or publicly funded agencies, enterprises, and other entities that deliver public programs, goods, or services. It is not, however, always clear whether any particular organization should be included under the umbrella. Therefore, it is necessary to identify specific criteria to help define the boundaries. The concept of public sector is broader than simply that of core government and may overlap with the not-for-profit or private sectors. For the purposes of this guidance, the public sector consists of an expanding ring of organizations, with a core government at the center, followed by agencies and public enterprises…The public sector is that portion of an economic system that is controlled by the nation, state and local governments. Public sector refers to all organizations that exist as part of government machinery for implementing policy decisions and delivering services that are of value to citizens. It’s mandatory institution under the Constitution of the Federal Republic of Nigeria 1999 (as Amended), Chap. VI of the Constitution, Executive, Part (B) and Part 2 (C) provide for a public service at the federal and state levels of government.
The public sector in Nigeria is made up of the following:
1. The Civil Service, which is often referred to as the core service and is composed of Ministries and Extra-Ministerial agencies.
2. The Public Bureaucracy, which is composed of the enlarged public service, including the following:
a) Services of the State and National assemblies,
b) The Judiciary,
c) The Armed Forces,
d) The police and other security agencies,
e) Paramilitary services (Immigration, customs, prisons, etc)
f) Parastatals and agencies including social service, commercially oriented agencies, regulatory agencies, educational institutions, research institutes, etc.”
We could adopt a two-way traffic approach to this subject. We may approach it from the perspective of legal services provided by public sector private law firms/legal practitioners or legal services provided by legal practitioners/officers who work with the public sector. Either way, the scope of legal services in the public sector is a relatively expansive one. It cuts across a broad mosaic of legal services provided to governments at the local, state, federal and even international levels, assisting them with large commercial transactions; helping multilateral agencies and organizations in addressing complex development and policy issues. It encompasses the complex legislative and regulatory environment in which businesses, companies and trade associations operate. It may cross paths with thresholds of public interest litigations and pro bono services. In view of the conceptual fluidity in the meaning of the notion of public sector, our discourse, though dwelling dominantly on the province of legal services provided to governments and their allied institutions/organizations, shall also touch base with certain peripheries of legal services in the private-public arena and a bit of the private sector domains.