IT is a notorious fact that sections 839,842, 843, 831 and 849 of the Companies and Allied Matters Act (CAMA) 2020 signed by President Muhammadu Buhari on August 7, 2020 have elicited protests from many religious leaders,activists and lawyers. The same law touted by government agents as aimed at “ease of doing business” has paradoxically stirred the hornet’s nest.I thought I should contribute to the reigning national discourse that it has generated for the sake of promoting constitutionalism and peace, more so as it relates to an area where I have been doing research for the past 20 years. It has to be noted that this article is not just geared at the freedom of association of the civil society organizations (CSOs) only or at the freedom of religion of Christians and Muslims, who follow the majority religions in the country, only. So, it is also geared at the freedom of religion and of association of such minority religions as the International Councilfor Ifa Religion (ICIR), other African traditional religion sects, Grail Message andthe Reformed Ogboni Fraternity (ROF), among many others. This write-up would even cover the religious freedom of the Progressive Association of Witches and Wizards Association (PAWWA) in Osun State, which recently held its first ever physical convention in the State capital with fanfare, if and assuming that it is a lawful society. Thus, the occasional aberration of focusing the discourse only on purportedly filthily rich churches and pastors is sentimental, narrow-minded, subjective and unscientific.
It is also not true that only Pentecostal pastors have castigated the inclusion of the controversial provisions in the new law; a Catholic archbishop, civil society organizations (CSOs), foundations, and activist lawyers, some of whom have even gone to court, have done so. For the avoidance of doubt, a reading of section 823 (1) of the Act discloses that the word “association” in the said sections 839, 842, 843, 831 and 849 of CAMA 2020 includes religious organizations (which may be churches/Christian ministries, mosques/Islamic societies, traditional religion sects and New Age brotherhoods), universities and other schools registered by trustees, research institutions,social clubs, development foundations, cultural groups, sports clubs, CSOs, charity organizations and other non-governmental organizations (NGOs).
For the sake of clarity, the 11 subsections of the controversial section 839 of the Act are hereunder reproduced. (1) The Commission may by order suspend the trustees of an association and appoint an interim manager or managers to manage the affairs of an association where it reasonably believes that —(a) there is or has been any misconduct or mismanagement in the administration of the association;(b) it is necessary or desirable for the purpose of —(i) protecting the property of the association,(ii) securing a proper application for the property of the association towards achieving the objects of the association, the purposes of the association of that property or of the property coming to the association,(iii) public interest; or(c) the affairs of the association are being run fraudulently. (2) The trustees shall be suspended by an order of Court upon the petition of the Commission or members consisting one-fifth of the association and the petitioners shall present all reasonable evidence or such evidence as requested by the Court in respect of the petition. (3) Upon the hearing of the petition and the appointment of the interim manager, the Court, with the assistance of the Commission, may make provision with respect to the functions to be performed by the interim manager or managers appointed by the order -(a) the powers and duties of the interim manager or managers which may include the powers and duties of the trustees of the association concerned; and (b) any power or duty specified under paragraph (a) to be exercisable or discharged by the interim manager or managers to the exclusion of the trustees.
(4) The functions shall be performed by the interim manager or managers under the supervision of the Commission.
(5) The reference in subsection (1) to misconduct or mismanagement extends to the employment for —(a) the remuneration or reward of persons acting in the affairs of the association, or (b) other administrative purposes, of sums which are excessive in relation to the property which is or is likely to be applied or applicable for the purposes of the association.
(6) A court of competent jurisdiction may, upon the petition of the Commission or members of the association —(a) order or suspend any person, officer, agent or employee of the association from office or employment, provided that such suspension does not exceed 12 months from the date of the order or suspension;(b) by order appoint such number of additional trustees as it considers necessary for the proper administration of the association; (c) by order —(i) vest any property held by or in trust for the association in the official custodian, who shall be a person so designated by the court from time to time;(ii) require the persons in whom any such property is vested to transfer it to the official custodian who will be an individual as the court may, from time to time designate, or (iii) appoint any person to transfer any such property to the official custodian; (d) order any person who holds any property on behalf of the association, or of any trustee for it, not to part with the property without the approval of the Court; (e) order any debtor of the association not to make any payment in or towards the discharge of the debtor’s liability directly to the association but to make such payment into an interest yielding account held by the Commission for the benefit of the association; (f) by order restrict (regardless of anything in the trusts of the association) the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the association without the approval of the court; or (g) by order appoint an interim manager to act as receiver and manager in respect of the property and affairs of the association. (7) Where, at any time after the Commission has made an enquiry into the affairs of the association, it is satisfied as to the matters mentioned in subsection (1), it may suspend or remove—(a) any trustee who has been responsible for or privy to the misconduct or mismanagement or whose conduct contributed to or facilitated it; or (b) by order of the Court, establish a scheme for the administration of the association.
(8) The court may by order replace a trustee removed under subsection (7).
(9) A person who contravenes an order under subsection (6) (d), (e) and (f) commits an offence and is liable on conviction to fine as the Court deems fit or imprisonment for a term of 6 months or to both.
(10) The Commission may make regulations in respect of —(a) the functions, powers and remuneration of the interim manager and the manner in which the interim manager shall make reports to the Commission; and (b) making reports to the Commission, and such other things as may be necessary for the effective administration of the association during the period of its interim administration.
(11) The Commission shall only exercise its power under this section in respect of any association with the approval of the Minister.
Generally speaking, there is hardly any holes to pick in subsections (2), (3), (4), (6), (8) and (9)of the controversial section 839, for two reasons. The first is that the removal of trustees and their replacement with interim managers cannot be done by the Commission without the order of a court of competent jurisdiction. In other words, they submit to constitutionalism, rule of law and separation of powers. Secondly, neither religious organizations nor the NGOs should have grievances against those subsections of section 839 of the new CAMA because they are generally aimed at ensuring probity, accountability, transparency, integrity and honesty, which no minister of God should shy away from. I have a similar opinion about sections 845 and 846 of the Act, which respectively deal with the filing of bi-annual statement of affairs, and of accounting records and statement of accounts, but I fear they may be abused by the administrators of the law.
However, subsections (1), (5), (7a), (10) and (11) of the said section 839 could betime-bombs. Subsection (1) of the vexatious section 839 almost turns the Commission or its Registrar-General into a tingod, as it empowers him to remove the trustees of a religious organization or any other NGO based on what he subjectively considers to be in “public interest” or a “misconduct or mismanagement in the administration of the association” in his opinion. Such provisions somewhat smack of a hidden agenda particularly against religious organizations and civil society organizations. This is because they enthrone authoritarianism by conferring unfettered discretion on the Corporate Affairs Commission (CAC) and the Minister of Industry, Trade and Investment. This is at various with the decisions in many administrative law cases where Nigerian courts have nullified such a sweeping discretion. The subsections are simply making these public officers to perform the duties of the court of law. Those subsections seek to legitimize turning these public officers into the accuser, the prosecutor, the judge and the witness in their own cause.
A dissenter may say “But the other subsections talk about ‘the court’”? Yes, but a meticulous reading of the whole of section 839 shows that subsections (1), (5), (7a), (10) and (11) are couched in such a way that they could be read independently and still constitute complete sensible statements or provisions,so that a mischievous administrator can plausibly claim that those subsections do not require any recourse to the court of law. Do not forget the travails of the rule of law and of the judiciary, especially the “un-judicial” removal of the Mr. Walter Onnoghen as the Chief Justice of Nigeria, among other instances, in our recent history. If unfettered and authoritarian discretion was not intended for the benefit of the Commission in section 839 (1), why is it that the Act does not clearly say “order of court” instead of the “Commission may by order suspend”? It is a familiar phenomenon in administrative law that, like courts, administrative agencies too can make orders, otherwise called delegated legislation. Note that section 839 (2) clearly mentions or talks of the “order of court” without giving room for any ambiguity or potential manipulation, which subsection (1) and those other subsections can be subjected to. If “the order” mentioned in subsection (1) is not intended to mean the order of the Commission but of the court of law, why the omission in subsection (1) of “members consisting one-fifth of the association” found in subsection (2)? Parochialism and corruption are so endemic in Nigeria that our laws should give no room for such avoidable ambiguity, inter-subsection conflict and potential manipulation.
Unfortunately, the suspicion, mistrust, fears, grievances and danger thrown up by the said section 839 (1), (5), (7a), (10) and (11) arenot assuaged but are compounded by section 851, which creates a quasi-judicial panel called Administrative Proceedings Committee, hypocritically aimed at ensuring fair hearing for aggrieved members of a company or association; hypocritical because its members are all CAC employees and its Chairman is the Registrar-General of the CAC.The other member is similarly an employee of the Ministry of Industry, Trade and Investment, which supervises the CAC. The said subsections of section 839 are also a flagrant attempt to desecrate the doctrine of constitutionalism, rule of law and separation of powers, which many gallant judicial officers in the country risked their livelihood to preserve even during militocracy. God forbid that their desecration be legitimized in a democracy!
Concerned people and organizations would naturally have grievances against subsections (1), (5), (7a), (10) and (11) of the said section 839 because they violate the right to freedom of religion, right to freedom of association and the right to fair hearing, respectively entrenched in sections 38, 40 and 36 of the 1999 Nigerian Constitution. A cursory reader, or a stranger in John Locke’s school of religious freedom may not decode the problem embedded in those subsections, but a meticulous Lockian study of the subsections discloses the disguised dangers therein.Even whether or not the CAC or the court would be the appointors of the interim trustees/managers for the religious organizations and the CSOs under section 839, we must still exercise caution in retaining such provisions in our law with regards to religious organizations, because of the fact that decades-old politics of religious favouritism and religious supremacy is real in our governance. (See Hassan Kukah’s Religion, Power and Politics in Northern Nigeria.)Can we, honestly speaking, still say there is right to freedom of religion in Nigeria if a public officer, who could happen to be a religious chauvinist, has to, on his own, hire and fire or pick and choose who becomes the trustees, leaders, administratorsor clerics of a religious organization,that happens to be a religion other than his own, under the excuse of appointing interim managers/trustees for it? How can his choice or decision be free from his own religious prejudice? Is it not written in the Bible that it is the Holy Spirit who appoints leaders in the Church of Christ? Is it not also written in the Quran that Allah has destined or ordained certain people to be imams in the mosque? I am also sure that the worshippers of Ifa, the traditional god of divination, will readily tell you that only those appointed by Ifa can be his priests. In fact, in some towns in Nigeria till date, Ifa does not appoint his priests only but even the oba (traditional ruler). In a nutshell, religious leadership is not for every Tom, Dick and Harry, especially in a religiously fragile country as ours. Government should not stoke religious mistrust where none existed before. It is better to cry out and get the needed remedy in the form of amendments now than to wait for the judiciary, because the judiciary itself has been plagued by unprecedented intimidation and technicalities in recent years.
Sections 842, 843, 831, 849 and 850 too contain similar authoritarian and obnoxious provisions. Section 842 (1) provides that the concerned bank shall notify the CAC of any association whose bank account is dormant and subsection (2) empowers the CAC to query such an association. It provides further that “where the association fails to respond satisfactorily within 15 days of the request, the Commission may dissolve the association in accordance with section 850, and where an association is so dissolved, the Commission may give a direction to the bank concerned to transfer —(a) the amount, or, as the case may be, the aggregate amount, standing to the credit of the relevant association in the account or accounts in question to such other association as is specified in the direction in accordance with subsection (3) of this section to the bank; or(b) to each of two or more other associations so specified in the direction, such part of that amount or aggregate amount as is there specified in relation to that association.” Section 850 provides that an association may be dissolved by the Court on a petition brought for that purpose by its governing body or council, one or more trustees, members of the association constituting at least 50% of the total membership or the CAC. This section itself is dangerous because, under it, like the CAC, one or more government-appointed trustees/managers can, under government pressure or duress, bring such a petition. Section 842 (3) provides that the provisions of subsection (2) shall also apply where the CAC is unable, after making reasonable inquiries, to locate an association registered under this Act or any of its trustees. Section 842 (6) says that the Commission shall exercise these sweeping powers with the approval of the Minister. Section 843 provides for the conditions under which the Commission shall revoke any direction made to a bank under section 842 (2).
The openly arrogant section 831 provides that “Without prejudice to the provisions of section 849 of this Act, the Commission may direct that for all or any of the purposes of this Act —(i) an association be treated as forming part of an already registered association; and(ii) any two or more association having the same trustees be treated as a single association.” Section 849, that it refers to, similarly provides that “Two or more associations with similar aims and objects may merge under terms and conditions as the Commission may prescribe by regulation.” Though, by the relevant rule of interpretation of statutes this latter section will have priority over the nakedly arrogant section 831, the problem with this section 849 is that it is too ambiguous to be trusted. Will the merging of two or more religious organizations or NGOs under this section be voluntary? Or, would it, in the spirit of the obnoxious and totalitarian subsections of section 839 also be by the fiat of the CAC and the Minister of Industry, Trade and Investment? If the merger would be voluntary, why the need for the “terms and conditions” to be rolled out by the CAC? If it would be voluntary, then the said section is superfluous, because one of such two associations willing to merge can simply wind up and get its own trustees added to those of the other one. Or, if it would be voluntary, another, better procedure is for both associations to wind up and register another association where the trustees of the former associations would function without the need for CAC’s “terms and conditions” being imposed.
In a nutshell, all the above faulted sections or subsections of the new CAMA violate the right to freedom of religion, freedom of association and/or fair hearing guaranteed in the Nigerian Constitution. They enthrone or seek to legitimize arrogant unfettered administrative discretion and a slap of constitutionalism, rule of law and separation of powers. They clearly make the CAC the complainant, prosecutor, judge and witness in its own cause. In all honesty, who can vouch that this government or its CAC or Ministerof Industry, Trade and Investmentcan appoint independent-minded interim managers/trustees for such activist CSOs like the Socio-Economic Rights &Accountability Project (SERAP) and the Human Rights Writers Association (HURIWA), that have been consistently critical of it?
On its own, sections831 and 849 are a potential flagrant violation of the right to freedom of association of religious organizations and NGOs. What is the common sense in using the machinery of government to merge two or more church denominations, Islamic societies, African traditional religion groupings, New Age brotherhoods, CSOsor other NGOs, who certainly will differ in one way or the other in their beliefs, creeds and practices? Can two walk except they agree? Is the nation already hastening into the era of government inter-faith or syncretist dispensation? Where is the respect for the right to freedom of thought, conscience and religion and the right to freedom of association guaranteed by the Nigerian law and by the relevant international human rights instruments in such an arrangement?
If the foregoing statutory provisions are in the Charity Commission Act of England and Wales, does it mean that these copy-and-paste alien superimpositions will certainly work in Nigeria’s different and peculiar socio-cultural and religious environment? Unlike the UK, which has hardly had a history of clash of the world’s major religions, Nigeria is a religiously fragile country that has still unsettled religious suspicion, mistrust and even violence. Another reason why Nigeria must not blindly “do copy-and-paste” from the UK and from any other nation is that, unlike ours, their own nation is hardly plagued by religious bigotry, ethnicity and corruption, which have now become thriving industries inalmost every sector here. Another point that must be noted is that government has the moral and legal right to closely monitor or look into the finances of the charity organizations in the Western countries because government supports them financially as it appreciates their moral and psycho-social contributions to the wellbeing of the society. In Germany, for example, government actually gives supports funds to churches. On the other hand, the Nigerian government social security scheme is not only at a shaky formative stage but many citizens here are jobless and hungry, with little or no help from government. The truth is that many widows, orphans, jobless people and indigent people do, on a daily, weekly or monthly basis, depend on their religious organizations for financial and material survival in Nigeria.At least, I am sure of the Church where I worship. What is more, from Von Savigny’s historical school of jurisprudence, laws are supposed to reflect the volksgeist or the spirit of each country’s people. That is why it would be reckless, diffident and neo-colonial mentality to believe that everything UK must be our model here. How many of our own laws or conventions have they blindly copied?
Some people have been misfiring by claiming that the aggrieved religious leaders who have been criticizing the Act were doing so because they want their churches to evade paying taxes or cover their own purportedly ill-gotten wealth. At this juncture, I hope such people would realize that they have been laboring under a misconception of the real issue. They have a misconception, because Nigeria is not an exception to the universal exclusion of religious and other charity organizations from taxation. It is also a settled rule in the law of taxation that any profit-making outfit or business that any religious organization dabbles into or goes out of its way to float is liable to pay taxes. That is why, if you do your inspection well, you will discover that the universities and the micro-finance banks (to mention a few) that some of the Nigerian churches have established are accountable to all the regulatory authorities like the State Internal Revenue Service, Central Bank of Nigeria and the National Universities Commission. It is interesting to note that pastors, imams and other religious leaders who embezzle charity funds or choose to become conduit pipes for the looters of public funds are not immune to the long hands of the Independent Corrupt Practices and other Related Offences Commission (ICPC), Economic and Financial Crimes Commission (EFCC) and other law enforcement agencies, as recent developments in the country have clearly shown.
In a nutshell, it is submitted that different provisions of CAMA 2020 pertaining to freedom of religion, freedom of association and/or fair hearing are some of the grounds on which the constitutionality or the intension of the Act can challenged. If the government is serious at convincing us that CAMA 2020 is geared at “ease of doing business” and not also geared at “ease of undoing human rights,” particularly the right to freedom of religion and association, the onus is on the Buhari administration and its rubber-stamp National Assembly to urgently amend it so that it will comply with constitutionalism, rule of law, separation of powers, human rights, people’s aspirations and the peculiarity of Nigeria.
CAMA 2020 has also somewhat proved to be a parameter for measuring the patriotism of our law-makers, our leaders’ regard for inclusive governanceand public enlightenment and the level of citizen participation in the country. Some of the plausible questions that some of its controversial provisions have provoked are: Why did the policy formulators, law-makers and their advisers deliberately decide to perpetrate or connive at the numerous violations of the Nigerian Constitution in the Act? Were there not the normal public hearings before the passage of the Act? Were critical stakeholders like religious organizations, CSOs and bar leaders not carried along in the process of the passage? Did these stakeholders know but choose to be silent over those strange provisions? Were the controversial provisions really deliberately shielded from them and smuggled into the Act at the eleventh hour? Who inserted those provisions into the Act, the executive or the legislature? If it was the executive, at what stage? No matter what stage, why have the members of the National Assembly, who are supposed to be the representatives of the people, so far kept silence over those many unconstitutional and authoritarian provisions of that legislation that emanated from them?
It is hoped that the submissionsherein, which also suggest the relevant recommendations, will assist government and other stakeholders to appreciate the constitutional violations and dangers inherent in this law touted as aimed at “ease of doing business” with the view of quickly fashioning the necessary amendments. It is submitted that there is the need for the offensive provisions to be expunged or replaced with provisions that would wear human face and have regard for municipal constitutional freedoms and international human rights law. There may also be the need to create a new Part in the Act for religious organizations because of their peculiarity. The CAMA saga should actually be a hard lesson for the Nigerians and religious organizations who had hitherto been apathetic to law-making and good governance in the country under the erroneous excuse that politics is worldly or sinful. A wise man who refuses to rule will submit to the rule of idiots. On a final note, the fact that Nigerian lawyers have been hit below the belt by many of the provisions of the law, including the provisions that elevates a private individual’s Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN) above the Nigerian Bar Association (NBA),which has constitutional and statutory flavour, is a challenge to the new leadership of the NBA and the entirety of my colleagues in the country.
Mr. Aladekomo is a Lagos-based law lecturer.
E-mail: [email protected]
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