CAMA’S KARMA: DISSECTING THE INTERESTS (NON) ALLIGNED WITH SECTION 839
BY TAIWO.I ABIODUN-ONI
Anyone who has followed the Nigerian corporate space for the past weeks would have by now noticed two things; that the long overdue amendment law to the erstwhile Companies and Allied Matters Act, 2004 has finally been passed and therefore the 2004 law stands repealed and replaced by the 2020 law. The other is that the legislation is quite a highlight legislation with so many applaudable 21st century tailored corporate practice provisions, this however goes without saying that no one man made legislation can be perfect. Some of the imperfections of this centerpiece legislation are evidenced in Sections 78, 17, 705 & 707 and 839.
Analyzing each of these imperfections in reality of the business world today would be an impressive academic feat, however; the intention of this piece is to analyze one particular provision of this legislation that seems to have gathered a bit of controversy from various persons and groups; the legislation’s perceived Karma (section 839).
Section 839 is reproduced as follows:
‘ the Corporate Affairs Commission (“the Commission” or “CAC”) may by order, suspend the trustees of an association or a religious body and appoint an interim manager(s) to coordinate its affairs where it reasonably believes that there has been any misconduct or mismanagement, or to secure the property of the association or religious body (or the application of the property to the objects of the association or religious body), or where the affairs of the association or religious body are being run fraudulently or where it is necessary or desirable for the purpose of public interest.’
The literal interpretation of this piece of legislations seems to portend that the CAC needs an ‘order’ which would naturally mean an order of the court before taking any of the steps mentioned in the above cited provision. This fact is made clear by the provisions of section 839(6) which gives the assurance that the order cannot be an order by the Registrar-General of CAC or the President of Nigeria.
The process for securing this order has been outlined in Section 839(2) of the CAMA 2020 by which the commission must file an application/petition by way of a motion in court supported by an affidavit stating justifications as to why a suspension order and/or order for appointment of interim managers should be made. The application may be made by the Commission or one-fifth of members of the association or religious body. One part of this new legislation that never really get spoken about in many analysis on the television is Section 839(6)(a) which gives the impression that the suspension is suppose to last for a period of only 12 months.
Notably, to gain full understanding on this controversial provision, one cannot cherry pick the subsections of Section 839 in the analysis. From the brief statement of law that has been made above, it becomes obvious that a wide range of interests have been affected; interests that stem from within pressure groups, interest groups, nongovernmental organizations, incorporated trusteeship and ordinary associations. It therefore comes as no surprise that organizations, associations, religious bodies that exemplify these interests have reacted fiercely. The next part of this piece will analyze the cause of worry for each for each of these interests. 1. The Church
The loudest cry by far has come from the church leadership, with many of the vociferous head pastors and even the church body (CAN) as a whole coming out to reject the applicability and legality of Section 839 of CAMA 2020 and mincing no words in waving it as one of the suspicious moves of the Buhari administration toward the clandestine promotion of the islamization agenda. There has been quite a back and forth on the issue of the islamization of Nigeria ever since the time when Nigeria was officially listed as OIC (Organization of Islamic Countries) nation in 1986.
This suspicions further deepened by the antics of the Buhari led administration which arguably seems to have prioritized appointing northerners and muslims to major positions in Nigeria while also removing southerners and Christians from the position they occupy. The truth is that before the 2020 law, incorporated trustees to which a majority of the churches in Nigeria are registered as have enjoyed a non regulation status under the erstwhile 2004 CAMA and even under the major tax laws in Nigeria. All of the churches in Nigeria seem to enjoy huge tax breaks either in income or corporate taxing under the notion that churches are non business entities. However, the advent of this new law seems to have altered this position and by the import of the new law, incorporate trustees are now on the radar of the government with this having the implication that the church which has enjoyed a fair amount of regulatory anonymity will now be regulated by the laws of the state like every business. The law cited in the previous part of this piece now implies that the government will have the right of ‘remove and replace’ over an incorporated trustee.
To de-complicate this, it means that Pastor E.A Adeboye or Pastor Oyedepo or Pastor Paul Jinadu can be removed from the position of incorporated trustee and replaced with another person. Whether this person who would replaced the removed trustee will be from within the church or from outside just like a ‘receiver manager’ is unclear.
Probably the Nigerian government would avoid some tongue lashing if it agrees to add that the interim manager must be a person who is a member of the faith and shares the same or similar religious beliefs. A Muslim cannot be made to act as interim manager in a church and vice versa. The Catholic Church cannot entertain a Pentecostal acting as interim manager and vice versa.
For the record, a church is not the only entity that can be registered as incorporate trustee. Many charity organizations, associations also register as incorporated trustees. Interestingly, any person familiar with the dark side of corporate law needs not be told that many charity organizations in Nigeria and around the world are a front for the legitimation of unclean funds, a method of tax avoidance and a front for money laundering.
Upon the above, it is easy to understand that the reaction of the church comes from a place of political insecurity and a chasm of religious sanctity. From time immemorial, the church has been separated from political proclivities and has served as a representative of the divine on earth. It is known to be place without blemish where human’s conscience is conditioned to live without blemish. It is then counter instructive to suggest that a place such as that will be sought with financial improprieties even if that is often the reality. Even in the unceremonious and sanctimonious acts of the church, a government regulation on its leaders is a step too far into the realm of meddling with the spiritual and an abrupt violation of the biblical ‘touch not my appointed and do my prophet no harm’.
If I may be so bold, why have the muslim counterparts yet to voice a counteracting opinion on this section 839. This silence fuels the conspiracies.
To salvage some points for the government, it could be that the intention of the government here was borne out of the need to sanitize organizations that by direct involvement or by connivance engage in financial improprieties in the name of charity.
2. NGO’s
Non-governmental organizations popularly known with pseudonym ‘NGO’ probably have as much to be concerned about like the religious bodies. The concept of Non Governmental organizationism transcends any one country; it is a force and practice to be reckoned with. Many international statuses have recognized the indefatigable roles of NGO towards the achievement of the many goals that have been set by the United Nations, be it, security inclined, economy, poverty alleviation, humanitarianism and so on.
There are thousands of Non-governmental organizations in Nigeria and the most prominent amongst them which doesn’t amount to a long list have since the beginning of the Buhari led administration been at the front of criticizing the government. Some of the criticisms had been on the arbitrary arrests and elongated extra judicial incarceration of suspects or persons regarded as enemies of the administration. Some of the other criticisms came from the place of poor treatment of internally displaced persons (IDPs) in the North Eastern Nigeria and some reported cases of civil right breaches by the Nigerian military.
All of the above were done by the NGOs in the fulfillment of their mandates as watchdog for governments but this seemed to have bred animosity between the Nigerian government and the NGOs as we recall that during the first term of the President, there was a Public Hearing conducted by the National Assembly on the Non- Governmental Organizations Bill tagged ‘Bill for an Act To Provide For The Establishment Of The Non-Governmental Organizations Regulatory Commission For The Supervision, Co-ordination And Monitoring Of Non-Governmental Organizations’ which was attended by CAN and many NGOs.
At the Public Hearing, the Bill that sought to bring the religious organizations and NGOs under the control and influence of the government was totally rejected because it would snuff life out of the church and rank the church as a secular institution under secular control.
Now, there is the postulation that Section 839 of CAMA is a clandestine attempt to summarily entrench the intention of failed bill into law and it seems as though this time attempt was a success.
Personally, it makes perfect sense that NGOs be regulated but only to the extent of ensuring legalism of objectives and not to the point of administration change or serving as gag on their functionalities. However, a history of non observance of rules of practice and procedure on the government’s part makes it impossible to trust the intention of this kind of government.
Just like the case of incorporated trustees, any person familiar with the dark side of corporate law would also be in the know that NGOs the world over are known to have secondary sinister businesses most especially as it concerns the legitimation of unclean funds and a front for money laundering. This however does not take away the fact that it is almost impossible to ensure the followership of due process in Nigeria.
Just like the case of the removal of a former Chief Justice of Nigeria (Hon. Justice Walter Samuel Nkanu Onnoghen) from office based on an outrageous ex parte motion, brought pursuant to no known law or Rules of Court, contrary to the established procedure in the Constitution in Section 292. Thorough investigation of allegation of facts cannot be guaranteed at all times if at all. There is also the place for the abuse of the powers of office.
Also, by the literal interpretation of the word “Non-governmental’ it should naturally be inferred that the runnings of such organization should be free from any form of governmental interferences and an attempt to do so will entirely defeat the motive behind the establishment of an NGO.
3. Associations
It has become almost impulsive for the Nigerian government to want to control every part of the existence of Nigerians. This obsessive act has led to making some very wrong decisions that affect even the very insignificant matters such as removing the trustees of ‘Womens Love Club’ (a club of small artisan that hold meetings every sunday directly opposite my father’s house). How insignificant.
However, what many have failed to realize is that this attempt at regulation is an attempt to launch dictatorship in the skins and disguise of democracy. Section 839 brings alive the possibility of removing an ASUU Chairman, NLC Chairman, NMA Chairman, NBA Chairman all on bogus claims of misconduct or financial improprieties.
No matter how docile that section looks or feels, it is a full scale assault on the Nigerian Constitution and the fundamental rights protected therein.
What the way forward is in all these insecurities is unknown though one may be tempted to state that the suggestion of Vice President, Yemi Osinbajo GCON for unsatisfied parties to approach the National Assembly for amendment is a viable option, however, one cannot be sure to put a duration on how long this process will take or if even the National Assembly will be willing to concede defeat by amending a new law it prides as one of its greatest achievements.
While I wish this piece could be lengthier than it, I have to take caution not to err on the side of circumstantialities or avoid validating some unsubstantiated conspiracy theorists.