AKEEM NAFIU writes that litigations may soon ensue over the newly-signed amended Companies and Allied Matters Act (CAMA) 2020 following mounting controversies regarding Section 839 (1) of the new legislation which empowers the Corporate Affairs Commission (CAC) and the supervising minister to sack Board of Trustees of religious organizations and the NGOs on allegations of misconduct without recourse to court
The controversies dogging Section 839 (1) of the Companies and Allied Matters Act (CAMA) 2020 seems to have taken off the shine from a law regarded by many as the most significant business legislation in Nigeria since 1990.
After initially withholding his assent following its passage by the 8th National Assembly, President Muhammadu Buhari finally signed the Companies and Allied Matters Bill into Law on 7th August, 2020.
The new legislation which introduced several corporate legal innovations geared toward enhancing ease of doing business in the country, repealed and replaced the extant Companies and Allied Matters Act, 1990.
Innovations contained in CAMA 2020 include “filing fee reductions and other reforms to make it easier and cheaper for small and medium-sized enterprises to register and reform their businesses in Nigeria.” It also “makes it possible to establish a private company with only one member or shareholder.”
This is a departure from what obtained in the past where minimum of two people are required to form a private company.
CAMA 2020 also introduced a transparency clause which mandates the disclosure of persons with significant control of companies in a register of beneficial owners. This is to enhance corporate accountability. Despite some of these laudable innovations, controversies have been trailing Section 839 (1) of CAMA 2020 since its signing into law by President Buhari.
Section 839 (1) of CAMA 2020 “empowers the Commission to suspend trustees of an association and appoint interim managers to manage the affairs of the association where it reasonably believes that: (a) There is or has been 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 purpose 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.”
Tied to Section 839 (1) is Section 839 (7) which provides that after an enquiry into the affairs of the association, if the Commission is satisfied as to the matters in subsection (1) (where you have the ambiguous and dictatorial clauses like “reasonably believes,” “deem it necessary or desirable”, “public interest.”) it may suspend and remove any trustee. Section 839 (2) however provides for another procedure for the suspension of trustees.
It stated 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.”
Section 839 (1)
Section 839 (1) seems to have gained the most notoriety among other Sections in CAMA 2020. It has been condemned by some religious bodies and the non-governmental organizations (NGOs).
For instance, an NGO, the Socio- Economic Rights and Accountability Project (SERAP), has even threatened to take the Federal Government to court over the new legislation.
In a message on its verified Twitter page, SERAP described CAMA 2020 as the most repressive law in Nigeria’s history. It alleged that the law would be used by government to further suppress citizens’ rights.
Council of Bishops
The Supreme Primate of the World Council of Bishops, His Eminence, Archbishop Dr. Polycarp Sunday, has kicked against the application of the Company and Allied Matters Act (CAMA) to churches. In a statement, the Council described application of CAMA laws on churches and religious bodies by the Federal Government as an act of illegality.
The statement reads: “The Church as a Bride of Christ is first Spiritual in ALL and will never and must not be subjected to carnality, but God’s Holy Word, the Bible as her basic principle and constitution. Thus, anything or policies, be it government, organisational or individual, that is inconsistent with God’s Holy Word is unconstitutional and illegal as the Church of Jesus Christ draws her ALL from the Bible, not laws made by man or humans.
“Where the inalienable rights of its citizens to freedom of worship, associations and the like are neither respected nor protected, such nation is headed for the rocks, consequent upon the draconian laws vehemently posed on her citizen’s religious faith and religious places of worship, without proper constitutional guidance, nor a recourse to a referendum before actual passage, application and implementation of such laws.
“To this effect, we as the Church of Jesus Christ nationwide demand a repeal on the application of CAMA laws and resist such laws against the Church and religious bodies in Nigeria in totality without fear or favour.”
The founder and General Overseer of the Living Faith Church, also known as Winners Chapel, Bishop David Oyedepo, had earlier warned the Federal Government against applying CAMA in churches. He said such laws were borne out of the jealousy of “wicked leaders” about the prosperity recorded by the church. Oyedepo said: “The church is God’s heritage on earth.
Molest the wife of somebody and you will see the anger of that person. The church is the bride of Christ. You know how a strong man is when you tamper with his wife. The church is the body of Christ. We are under obligation to give warnings to wicked rulers so we could be free from their blood. “I know that it is the prosperity of the church that is making them jealous.
This is a secular nation. The church is the greatest asset of God in this country. Please be warned. Anybody that is in this deal is taking poison. This will never work.”
The leadership of the Christian Association of Nigeria (CAN) has also called for the immediate suspension of the implementation of the Companies and Allied Matters Act (CAMA) 2020 recently assented to by President Muhammadu Buhari. A statement signed by CAN President, Rev. Samson Ayokunle, described the law as a time bomb waiting to explode.
According to him, the law, to say the least is unacceptable, ungodly, reprehensible and an ill-wind that blows no one any good. The religious body while expressing its support for government’s fight against corruption said it is totally rejecting the idea of bringing the church, which is technically grouped among the NGOs, under control of the government. It said the church cannot be controlled by government because of its spiritual responsibilities and obligations.
CAN consequently called on the federal government to stop the implementation of the “obnoxious and ungodly” law until religious institutions are exempted from it. The statement reads: “We recall that during the First Term of the President, there was a Public Hearing conducted by the National Assembly on the Non- Governmental Organisations Bill tagged ‘Bill for an Act To Provide For The Establishment Of The Non-Governmental Organizations Regulatory Commission For The Supervision, Coordination 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.
We thought it was all over until we heard of the CAMA that assented to by the President, making the rejected bill a law. “We call on President Muhammadu Buhari to urgently return the law to the National Assembly for immediate amendment.
Nigeria should not be compared with any other nation when it comes to the relationship between the religious institutions and the government. In Nigeria, people’s religions are tied to their humanity and of course, their lives. “How can the government sack the trustee of a church which it contributed no dime to establish?
How can a secular and political minister be the final authority on the affairs and management of another institution which is not political? For example, how can a non-Christian head of Government Ministry be the one to determine the running of the church? It is an invitation to trouble that the government does not have power to manage.
Let the government face the business of providing infrastructure for the people. Let them focus on better health provision, food, education, adequate security employment, etc. The government should not be a busy body in a matter that does not belong to it. The government does not have the technical expertise to run the church of God because of its spiritual nature.
“If the government is bent on imposing a law on us which the entire Church in Nigeria is against, then, they have declared war on Christianity and the agenda to destroy the Church which we have spoken against before now is coming to the open more clearly. If you cannot give us good amenities of life, we would not allow you to take away our liberty to worship our Maker.
“What good thing again will you not take away from the people in the name of being in power? Are we not running a democracy which is a government of the people by the people and for the people?
Is this not gradually becoming a dictatorship or what was the essence of the Public Hearing you called us to when you had made up your mind not to consider the position of Christians at all which we presented during the Public Hearing? We call on all well-meaning Nigerians to ask the Federal Government to suspend the law because we do not need it in this nation.”
Some senior lawyers have equally been speaking on the controversial Section 839 (1) of the Companies and Allied Matters Act (CAMA) 2020. The lawyers while baring their minds on the issue at the weekend however expressed divergent views as to the propriety of the contentious Section.
To some, the section infringed on citizens’ constitutionally guaranteed rights to freedom of association, others however thought otherwise. In his comments, a Senior Advocate of Nigeria (SAN), Mr. Femi Falana, opined that the law was badly drafted saying a government that set out to facilitate the ease of doing business could not have come up with a 604- page business law.
In a statement, the silk particularly faulted Section 839 (1) of CAMA 2020 which empowers the Corporate Affairs Commission (CAC) or the supervising minister to take over and manage NGOs on allegations of misconduct. He said it breached citizens’ fundamental right to freedom of association guaranteed by Section 40 of the Constitution.
The statement reads: “I have read the law. It was badly drafted. A government that set out to facilitate the ease of doing business could not have come up with a 604-page business law (CAMA 2020). “But it is not a completely new law. Registered NGOs were regulated in the past in line with the practice in all democratic societies.
“The only addition which is objectionable is the power conferred on the commission to take over and manage NGOs on allegations of misconduct. “It is illegal because it is a violation of the fundamental right to freedom of association guaranteed by section 40 of the Constitution.”
Falana was echoed by another member of the Inner Bar, Mr. Seyi Sowemimo, who expressed concerns about the powers conferred on the Commission or supervising minister to sack trustees. He said the powers are open to abuse.
Sowemimo went on: “I think such wide powers are open to abuse and it is necessary to put some safeguards in place. I believe that an application to remove the trustees should not only be exercisable under clearly defined circumstances but an application should be made to court to sanction such a removal as is the case where individuals appoint trustees over their estates in the event of their death.”
Speaking in the same vein, a former Secretary of an NBA Task Force, Mr. Kunle Adegoke, also faulted the section saying it’s an infringement on citizens’ rights to fair hearing.
He said: “The provision is an infringement on the right to fair hearing of Nigerians and I know it will not take time before it is hacked down in court save and except where it makes room for the right to fair hearing of anyone who is involved.
“While it is desirable that religious organisations and other bodies are controlled contrary to the lawlessness and lack of transparency that characterize most of them right now, such control must be exercised in accordance with the law and most importantly, the Constitution.
“It is an inviolable right guaranteed under Section 36 of the Constitution that in the determination of the civil rights and obligations of a citizen, he shall be accorded right to fair hearing by an impartial court or tribunal competently set up. In the light of the above, before anybody of trustees of an organisation is dissolved by the supervising minister for any allegation of misconduct, such body must be accorded right to fair hearing.
“In such a situation, the minister cannot be the accuser and the judge in his own cause.
At the same time, the minister cannot unilaterally and arbitrarily exercise such a power.” Mr. Yemi Candide-Johnson (SAN) was in support of the controversial section saying there is a need for such regulation to strengthen the rule of law.
“There is more than anecdotal evidence that many of these entities are riddled with fraud and corruption and that their human principals are immunising themselves from accountability by pretending to be divine. This is not in the public interest.
The obligation to openness and transparency is more incumbent on those who occupy by choice and when they operate in a public space, under legal instruments of the state and when they prey on members of the public, it is incumbent on the state to regulate them in order to strengthen the rule of law.
This is standard across the world and these same people subject themselves to regulation outside Nigeria,” the silk said. A rights activist, Mr. Kabir Akingbolu, also emphasized the need for government’s regulation of religious bodies and NGOs.
He said: “There is a serious need to regulate the management of religious bodies and one of the best ways of doing it is the establishment of a government body to perform this role. It is therefore surprising why the religious leaders are protesting against the statutory control being put in place by the government. I don’t know what actually the churches or their leaders are scared off if they have nothing to hide.
“For crying out loud, all the churches and mosques were registered under part C of CAMA, so they have no excuse at all to be against government’s plan to control their churches. I believe if the churches follow the laid down rules under the law, no harm will befall them.”