Monday, August 31, 2020 1:40PM / by Kayode Adeniji, Esq/ Header Image Credit: Thisday Newspaper
It was fulfilling to see that the national discourse on CAMA 2020 was triggered by my legal opinion on section 839 of CAMA, which was published on 12th August, 2020. However, I have read and listened to various submissions of senior lawyers, members of the technical advisory committee, and public officers on the intention behind CAMA 2020 as it relates to NGOs and religious organizations. I must confess that I find them a little disappointing. I will not join issues on some submissions that may not advance our imagination towards economic revival in Nigeria. Most of them were merely attempting to do damage control; the purpose of which I could not wrap my head around. Please see below what I consider the Three (3) most important thoughts on this Law:
Wrong interpretation of section 839 (1) & (2) CAMA 2020
Sec 839 (1) provides that:
The COMMISSION MAY by order suspend the trustees of an association and appoint an interim manager or managers where it REASONABLY BELIEVES...
In line with the literal rule of interpretation, I submit that:
a. This subsection refers to the 'Commission', not the Court.
b. The word 'May' suggests an exercise of discretionary powers by the commission, not the court.
c. The entity that will 'reasonably believe' is the commission, not the court.
d. Applying a golden or mischief rule of interpretation to suggest that the phrase 'by Order' in this section means a recourse to the court of law is totally incorrect. To rely on the golden and mischief rules of interpretation, at a time when the law hasn't even taken effect, is a pointer to the fact that it will not bear any good fruit. We need to drop now.
Subsection 2 now provides that: The trustees SHALL be suspended by an 'Order of Court' upon the petition of the commission or one-fifth of the members of the association.
The word 'SHALL' is mandatory and the suspension can only happen by a petition.
The defenders of CAMA want us to think that subsection (2) obliterates the purpose of subsection (1). Why do we have 'Order' in subsection (1) and 'Order of Court' in subsection (2)?
I submit that if the language of our drafting confuses the public and the business community in this 21st century, it is better to drop that section.
Furthermore, section 842 provides that the commission may dissolve an association by an order of court, but once the court dissolves the association, the commission is left to direct how the money in the account will move. Court dissolves, CAC controls the money without recourse to the court. Is Nigeria ready for this?
Copying everything from the UK, US and others
Secondly, on the policy and jurisprudence side of this debate, I am aware it wouldn't be easy to change the thinking pattern of the black man. However, I submit that the UK Charity Commission template is not suitable for Nigeria at this time.
It is a fact that politics in Nigeria is a violent venture, full of cult clashes, assassinations, stealing and embezzlement of public funds. The Nigerian political class is not at the same level with its UK counterpart. We will get there by putting in some work. We cannot copy the regulation regime of the United Kingdom the same way we copy Big Brother Naija.
CAMA 2020 is a golden opportunity for us to fast-track our economic revival, we shouldn't allow the religious and political distractions in section 839 to derail those noble and smart provisions. I submit that corporate commercial consultants to government must strike a balance between corporate commercial perspectives to regulation and a little bias for jurisprudence.
Furthermore, there should be at least 10 percent increase in the number of newly registered companies, due to the relaxed requirements- and I know CAC has only achieved 50 percent digitization of his services. CAC has not proven itself efficient enough to take on the additional workload of regulating these companies, let alone NGOs and religious organizations. This is why I maintained in my previous opinion, that it is over ambitious and counter-productive as it relates to the KPIs of the Registrar General of CAC. Most lawyers can testify to the "efficiency" of CAC.
Our thinking must be original. We need to copy workable templates and abandon the impracticable. We should not stop at thinking out of the western box. We need to construct our own box. Mark my words, Nigeria will not reach her own destination by following the path of other nations.
Signing The Bill Into Law Does Not Make It Too Late For Amendment
The fact that the president had signed the bill does not make it impossible to amend. The presidency can withdraw his assent, pending the conclusion of the amendment. After all, we have a listening President. This is how a nation constructs her own box and starts thinking like a freeborn.
Conclusion-Why Everything Comes From Asia
Our journey as a nation is long, but the time is short. We cannot afford this distraction. Section 839 should be expunged from CAMA. I am Thirty-Seven (37) years old, and my seven (7) year old son is asking me why most of the things we buy in the house are made in China. We have everything we need as a nation. All we need now is less drama and intense focus.
KAYODE ADENIJI is the senior partner at Lawracles Legal Practitioners. The opinions expressed in the article are strictly that of the Author and do not necessarily represent the views and opinions of Proshare or its Editorial Board.
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