By Chief Mike Ozekhome, SAN

INTRODUCTION

Why has the new Companies and Allied Matters Act, 2020 (CAMA) generated so much hoopla and controversy? It is because its unique provisions make it possible for CAMA officials to take over a Church, Mosque, or an NGO, appoint a Bishop, Imam, Overseers, or Executive Director of their choice, and even decide what sermon, homily or Khutbah shall be disseminated to the adherents. This sounds like a fairy tale. But, it is real, if not carefully handled.

On the 7^th of August 2020, President Buhari signed the CAMA into Law. The Act repeals the Companies and Allied Matters Act, of 2004. The Act addresses the lapses in the old Act and equally introduces new provisions to regulate businesses in line with international best practices. It has been hailed in several quarters as the most important business legislation to come out of Nigeria in the last thirty years. However, despite the resonating plaudits generated by the Act, in numerous quarters, we must be circumspect and cautious in our euphoria and cyber-rattling. There is need for this cautious oxymoron of making haste slowly”.

SOME LITTLE HISTORY

The new CAMA has roots in the Companies Act, 1968. However, the 1968 Act had itself been repealed by the CAMA Act of 1990; which improved on the 1968 Act.

With the passing of the new CAMA bill to amend the 1990 CAMA by both Houses of the NASS since 2019. However, in the snail like pace and frustrating nonchalance that the Buhari administration has become typically legendary and accustomed to, there was neither an assent nor a veto of the Bill by the President throughout the remainder of President Buhari’s first tenure. The Bill for the amendment of CAMA, 1990, had to be represented to the Senate by the current Senate Leader, Senator Abdullahi Yahaya. It was subsequently passed by the Senate on10^th March, 2020.

It again took the President over six months to finally assent to the Bill on 7thAugust, 2020.This was the first major challenge of the Act that raised eyebrows, having regard to section 58(4) of the Constitution which gives the President only thirty days from the day that a Bill is presented to him to grant Presidential assent or refusal. In the case of the amended CAMA, 2020, it took over six months after the amendment bill had been passed by the NASS for the President to grant his assent. Is the 2020 CAMA Act constitutional?

The provision of Section 839 of CAMA has generated much hoopla and ruckus. A barrage of criticisms from churches, the Civil Society and of course, public commentators, has since visited it.The contentious Section 839 of CAMA provides:

“(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”.

In a nutshell, Section 839 of CAMA 2020 states that the Corporate Affairs Commission can unilaterally suspend the trustees of any Association that is registered as Incorporated Trustees, such as the Heads of churches, Mosques,Executive Directors of NGOs, etc. The Section goes on in a mindless arrogation of supremacy to the CAC over the Constitution, to provide that such trustees can be removed where the Commission “reasonably believes” that the trustees are involved in “misconduct or mismanagement in the affairs of the association”; or where the removal of the Trustees would be necessary for the protection of the property of the Association; or where the removal of such trustees is “in public interest”; etc. This Section also appears to donate untrammeled powers to the CAC, to usurp the investigative powers of law enforcement agencies.

This provision virtually confers supremacy on the CAC over constitutional provisions, to the extent that the CAC can remove the trustees of an Association based solely on its“reasonable belief”. This portends danger for Nigeria’s fragile and already over conscripted civic space, because by virtue of the amended CAMA, all that would be required to remove the Executive Director or the General Overseer or Bishop of a registered Church,or Imam of a Mosque whom the Government is not comfortable with, is the magical wand of“reasonable belief” that such Executive Director, General overseer or Bishop has been involved in the mismanagement of the NGO or Church. This is arbitrary, whimsical and capricious. Also affected by the section 839 are charitable organizations, educational institutions, socio-cultural organizations and clubs, etc.

Where is the right to fair hearing guaranteed by section 36 of the 1999 Constitution,which is the grundnormand the font et origo of Nigeria’s statehood?

The mere fact that the CAC can unilaterally remove the Trustees of an Association on nothing more than its “reasonable belief” of “misconduct”by the trustees is ominous – not just for the Associations, but also for the entire civic space.

Section 839(2) CAMA however appears to douse this fear by providing that “the trustees shall be suspended by an order of court upon the petition of the Commission or Members consisting of 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”.

If one may ask, what are the conditions precedents before a case for the removal or suspension of a Trustee for 12 months can be instituted based on a petition by the CAC,which leads to appointment of trustees for “the proper administration of the association”? Yes, the CAC can even appoint an interim manager to act as receiver and manager over the church’s property.

Furthermore, the grounds for the unilateral removal of the trustees of an association by the CAC are, to say the least, quite vague. For example, Section 839(1)(b)(iii) basically entails that the CAC can remove the trustees of an association “in the interest of public interest”. What is this “public interest?”.Who determines it? What is the measure of “public interest”?The vagueness of some decisive terms is definitely problematic. As a budding journalist, David Hundeyin, explained, “the Buhari Administration or any of its successors can now legally take over Amnesty Nigeria,SERAP or any similar organisations it has previously antagonised openly, if their definition of “public interest” means “the government must not be embarrassed.” Surely, this is dangerous for our already overburdened democracy.

THE FEARS

The amended CAMA 2020 attempted to enhance the ease of doing business in Nigeria and to generally bring Nigeria up to speed with globally accepted best practices. But, in trying to do so, the Act has become a burdensome albatross on the neck of civil societies, the Church and Mosque. It presents a ready opportunity for the Nigerian State apparatus to further shrink Nigeria’s civic state, and unleash its deadly arsenal on opposition, rights Activists, dissenters and critics of government.

To this end, these identified negative aspects of the amended 2020 CAMA should be resisted by all men and women of goodwill Civil societies and religious bodies (who are the main targets of the Act) must instigate a serious legal challenge to ensure that the Act does not bastardise their activities. The validity and constitutionality of these sections of the Act must be tested at every level of courts in Nigeria.

ALLAYING THESE FEARS

The fears generated by the new CAMA may have however been overblown. Section 839 (a) for example only penalizes for misconduct, fraud or mismanagement in the administration of an association, and to protect its property towards achieving its objectives. Section 839 (2) makes it clear that 20% of members of the trustees of such an organization must sign a petition before a court of law.

Who is afraid of provisions of a law meant to instill discipline in the affairs and conduct of a church, mosque, or NGO? Are they saying the society should remain indifferent to stinking corruption within them? I wholly disagree with them.

The point must equally be emphasised that these “not-for-profit”organisations, whether Churches, Mosques, etc, NGOs must themselves be above board like Caesar’s wife. The only reason they are accorded tax-free existence is because of the belief that they will add value to the society, by ploughing back their would-be taxation into the society to help the needy and most vulnerable. Are many of them actually do this? It does not appear so. Many of them plough their income and tithes into profitable ventures, building universities, buying private jets, building mansions, etc. Why should they not pay tax for such commercial activities? Mercifully, the Catholic Church is quite different from this new genre of Pentecostal Churches, that are mostly profit-driven and very worldly in their orientation and affairs.

The greatest edge the Catholic Church however has over them is that the Catholic Church is holy, one, universal and apostolic, It therefore requires no registration with the Corporate Affairs Commission (CAC). The Catholic Church is the only church founded by Christ Himself. In Mathew 16.18, Jesus said to peter, “Thou art Peter, and upon this rock I will build my Church; and the gates of hell shall not prevail against it. And I will give unto thee the keys of the kingdom of heaven; and whatsoever thou shalt bind on earth shall be bound in heaven: and whatsoever thou shall loose on earth shall be loosed in heaven”. One can also, albeit cautiously, therefore say that the fears of a take-over of its affairs by the CAC under CAMA, will not arise.

THOUGHT FOR THE WEEK

“Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced.” (Albert Einstein).

Sonnie Ekwowusi canvasses fiscal federalism

The Senate Ad-Hoc Committee on the Review of the 1999 Constitution calls for memorandum on the following subject-matters – gender equality; federal structure and power devolution; Local Government/Local Government Autonomy; Public Revenue; Fiscal Federation; Public Revenue/Fiscal Federal and Revenue Allocation; Nigeria Police and Nigerian Security Architecture; Comprehensive Judicial Reforms; Electoral Reforms; Socio-Economic and cultural rights; Strengthening the Independence of oversight institutions and agencies; Residency and Indigene problem; Immunity; The National Assembly; State Creation and other matters capable of promoting good governance in Nigeria. With the exception of “gender equality”, all the other subject matters listed by the Senate for consideration for amendment, in my view, are completely in order.

Considering that section 42(1) of the 1999 Constitution has amply provided for the principle of non-discrimination and for equality between male and female in Nigeria, there is no need for another provision on “gender equality”. “Gender equality” is a red herring. The appropriate word is “sex” not “gender”. This is why section 42 (1) of the Constitution talks about “sex” not “gender”. “Sex” means “male” or “female” whereas “gender” expansively connotes homosexuality, lesbianism, transgenderism, bisexuality, intersexuality, queer sexuality, abortion, non-binarism, animalism and bestiality. Section 42 (1) of the 1999 Constitution stipulates that no citizen of Nigeria should be discriminated against on ground of his or her sex, ethnic group, place of origin, religion or political opinion. So, section 42 (1) protects all women and men from discrimination on ground of sex. This is all we need. So, no need for “gender equality”. Let me quickly say that many people and many governments do not understand the real meaning of the phrase, ”gender equality”.

The phrase may sound laudable and palatable to the ear of the unwary and undiscerning but the phrase is a Trojan horse used to deceptively smuggle in LGBT rights into a country’s Constitution as in the case of South Africa. I have attended many United Nations negotiations in New York. My experience is that whenever the phrase “gender equality” appears in any United Nations policy document during negotiations in New York, the African Group (with the exception of South Africa which has legalized gay marriage and gay practices) always vehemently opposes the inclusion of the phrase. Why? Because the generic phrase “gender equality” is not given a biological construct (that is, it does not mean two sexes – “male” and “female”- as some of us think it means: it is now given an expansive social construct to include aberrations such as homosexualism, lesbianism, etc. Let me shock you a bit: whenever the generic term “gender” or “gender”-based appears in any United Nations policy document it is automatically interpreted as LGBT right or transgender right.

The following terms are given the corresponding interpretations in United Nations policy documents: “gender analysis” means LGBT analysis; “gender sensitive” means LGBT sensitive; “gender–based violence” means LGBT-based violence; “based on gender” means based on LGBT status; “gender sensitive schools” means LGBT-sensitive schools; “gender neutrality” means neither male nor female (In fact, many in the U.S. and Europe have gone to court to declare that they are “gender neutral” meaning that they are neither male nor female. These “gender neutral” people or non-binary people crusade for the abolition of a separate “Male Toilet” for males and a separate “Female Toilet” for females in public places such as the airports. They want a “gender-neutral” toilets for both male and female and transgender people.

South Africa is the first and only African country, and, in fact, the fifth country in the world to legalize LGBT rights. Perusing through the Constitution of South Africa I discovered to my chagrin that South Africa operates a non-sexist Constitution with a non-sexist language, meaning that South Africa does not recognize any difference or prejudice between male and female. The most significant provisions of the constitution relating to “gender equality” are found in the Bill of Rights, particularly the section on “equality.” This section contains a general commitment to equality before the law and equal protection of the law, and states that “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including “gender”. Now, does Nigerian want to be a gay country like South Africa? I hope not.

I have painstakingly presented the forgoing to assist our governments and many gullible people who are often deceived into believing that the phrase “gender equality” means the radical equality between a man and a woman. It is not. LGTB has been outlawed in Nigeria by virtue of the Same Sex (Marriage) Prohibition Act 2014. Therefore an inclusion of “gender equality” in our constitution, no matter how mildly couched, will entail repealing the Same-Sex (Marriage) Prohibition Act 2014 (because the Constitution is the grundnorm of Nigeria), and by extension, legalizing LGTB in Nigeria. So, away with “gender equality”. It is high time Nigeria stopped imbibing barbaric Western lifestyles that are antithetical to Nigerian cultural heritage.

Considering the low premium placed on human life in Nigeria, section 33(1) of the 1999 Constitution should be amended to include the following: “Life begins at conception and every person has an inherent right to life at any stage of growth and development, and no one shall be deprived intentionally of his life, save in execution of a sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria”. In order to enthrone a decentralized and democratized federal structure, we must reduce the powers of the federal government.

In that regard, the exclusive list in our constitution should be shortened to include only national defence, foreign affairs, security, commerce and currency while enlarging the concurrent list to include state police, state educational system, state economy, state taxation, state health system and so forth. The challenges of fiscal federalism should be tackled by making revenue sharing formula to be inversely related to revenue generation. States producing the oil wealth should get the lion share of the revenue. The current sharing formula which allocates 52.68% to the federal government, 26.72% to the states and, 20.60% local government councils should be reviewed. More revenue should be allocated to the oil producing states.

The Fundamental Objectives and Directive Principles of State Policy [Chapter 2 of the 1999 Constitution] should be made, and, manifestly seen to be, justiciable. Plea bargain should be abolished in our criminal justice system. In order to decongest the Federal Court of Appeal and Federal Supreme Court, State Court of Appeal and State Supreme Court should be established for each state to serve as the final courts on many state matters except in some crucial constitutional issues.

To reduce cost of governance, Nigeria should have only a unicameral-federal legislature. Elected members of the legislative arms of all tiers of government should serve on part-time basis without emolument. The posts of political aides and political advisers should be scrapped. Provision should be made for the principle of zoning and power rotation.