Unto CAMA what Belongs to CAMA and Unto God what Belongs to God: Is Section 839 Satanic or a Lawful Order from Constituted Authority?

1.0 Introduction:

 In recent time, the name CAMA has gained both popularity and notoriety in our public space. Even a year one student of law now knows about CAMA, thereby making the knowledge of CAMA not being a preserve of final year law students as it used to be. However, it is not only within the legal circle that the name CAMA has gained notoriety; students in other disciplines as well as several commentators have found, either by design or inadvertence, the name on their lips. Of course, the CAMA I speak of is the Companies and Allied Matters Act, 2020 which is the principal legislation governing corporate matters in Nigeria. The question however is: why has CAMA been trending? What has changed? 

The fact is that on the 7^th of August, 2020, President Muhammadu Buhari passed the Corporate and Allied Matters Bill into law, thereby amending the 1990 CAMA. Following this landmark step, comments began to trail the passage of the bill into law with several commentators and business stakeholders showering encomiums on the President for this giant and epochal stride. Many have acclaimed the CAMA 2020 as a law that will facilitate ease of doing business in Nigeria with its impressive innovations. But is this the cause of the sudden popularity of CAMA? Not so close!

 In truth, CAMA attracted plaudits at first. However, that high ovation didn’t last as it began to come under fire from the Christian community over a section that they described as a satanic law. Although, the Christian community made and is making the loudest noise over CAMA 2020, it is not the only one which has a bone to pick with CAMA; the Civil Society Organizations, NGOs, are also raising alarm over the Act which they have christened an illegal law. Given this fierce opposition, especially from the church, the giant question is: what is wrong with the Act? To put in another form, what has CAMA done to earn the wrath of the hallowed church? To go a little biblical, one may ask: has the Nigerian Government not given unto CAMA that which belongs to CAMA and unto God that which belongs to God?

2.0 GENERAL OVERVIEW ON SECTION 839 OF CAMA

APPARENTLY, it is not that the church is markedly combatant, thereby willing to pick a fight with the state unprovoked. In fact, the church has no grouse with the entire Act; its grouse is only with the provisions of Section 839 of CAMA. Generally, Section 839 of CAMA has ten subsections. However, the focus of this terse overview will be on subsections one to three. Subsection 1 provides that the Commission may 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 there exist any of these six conditions: 

1. Misconduct                 
2.  Mismanagement     
3. Where the affairs of an association are being run fraudulently      
4.  Where it is necessary for the purpose of protecting the property of the association or;  
5. For securing a proper application of the association and; 
6. For public interest

Subsection 2 provides that the trustees can also be suspended by an order of the court upon a petition by the Commission or one-fifth of the members of the association after having presented convincing evidence as requested by the Court

Subsection 3 provides for the hearing of the petition and the appointment of interim managers by the court with the assistance of the Commission. 

3.0. CLARIFYING GREY AREAS

From the early stage of the controversy surrounding the purport of Section 839 of CAMA, 2020, I have had the opportunity of sampling the opinions of various individuals in and out of the legal circle. From these engagements, I have also become apprised of some of the misconceptions that are peddled by many, majorly out of innocent and innocuous ignorance and misinformation. One of the misconceptions is that most people believe the provisions of Section 839 of CAMA, 2020 is unconstitutional on the ground that it applies only to Christians, thereby serving as an incursion into their rights against discrimination; this is turning the head of the law upside down.

 The correct analysis of the law is that Section 839 doesn’t apply only to Churches; instead, it applies to all registered trustees. The question then is: who are registered trustees? Under the old CAMA, Section 590 provides that:

“where one or more trustees are appointed by any community of persons bound together by custom, religion, kingship or nationality or by anybody or association of persons established for any religious, educational, literary, scientific, social development, cultural, sporting or charitable purposes, he or they may, if so authorized by the community, body or association apply to the commission in the manner provided for registration under this Act as a corporate body.”

 As can be glaringly seen, Section 590 doesn’t apply to churches alone. This provision is now conveniently, with slight modifications, embedded in Section 823(1) of CAMA 2020. A proper construction will reveal that a school can have incorporated trustees in the same way a group of friends can come together to set up a club and decide to have trustees that would be incorporated. Therefore, civil society organizations are also affected by the provisions of Section 839. Consequently, to maintain that the beleaguered section 839 is discriminatory on the ground that it applies only to churches is to teeter on the precipice of ignorance.  The singular explanation for the uproar caused by this Section is that most churches have incorporated trustees. Accordingly, they are arguably the most affected and this explains their peculiar agitations.  

• THE GOVERNMENT IS NOW TRYING TO REGULATE THE CHURCH

 As earlier remarked, it is erroneous to assume that Section 839 is applicable only to churches. Flowing from this, it is important to pass one or two comments on another legal bloomer making the rounds which is that the government is now trying to regulate the churches through the agency of Section 839. As earlier shown, even in the old CAMA, the churches had always been regulated under Section 590. Churches are captured under Section 590 as part of associations that can register their trustees, thereby incorporating them. Thus, it amounts to a legal misguidance to assert that the government is trying to regulate churches now. Additionally, it bears pointing out that churches have the choice to either incorporate their trustees or not. Hence, for the government to regulate the churches, it is the churches that would bring themselves under the governmental oversight by way of incorporation. Ultimately, it is incorrect to maintain that the government is just trying to regulate churches now with Section 839. 

4. WHY IS GOVERNEMNT TRYING TO REGULATE CHURCHES AND NGOs?

 Several reasons have been adduced for the introduction of Section 839. The prominent and popular reason is that this provision puts the Nigerian corporate governance framework in concinnity with international best practices. It has also been argued that Section 839 is an instrument designed to fight corruption in some of these associations with incorporated trustees by attaching a fastener of supervision to their purses. However, beyond the adduced reasons by the government, what boggles or should boggle one’s mind is the rationale, legal justification and ethical considerations for the government’s intention to regulate the affairs of incorporated trustees of associations which it (the government) didn’t help create in the first place. 

Generally speaking, it is a global practice for the government to regulate the activities of incorporated trustees or charities as the case may be. The fundamental justification for this is that charities or incorporated trustees enjoy certain advantages, the prominent being tax advantages. This explains why churches don’t pay taxes despite the ongoing fierce debates that they should be hurled off into the tax net. Members of churches pay tithes, offerings and also donate gifts to the churches, yet churches are not taxed. The same goes for NGOs; they also receive grants and are not taxed because the general assumption is that these civil society organizations are in existence to assist the government share its burdens and as such, they should obtain certain benefits for their efforts. Based on these reasons, the argument has been that if the government is conferring such privileges on these associations, it has a duty to regulate their affairs to make sure they are not mere façades for exploiting the citizens and defrauding the state. 

  5.0. WHY ARE CHURCHES AGAINST SECTION 839?

 Since the day Section 839 of CAMA saw the light of the day, the churches have ruled it down as a profane section. In fact, so much ink has been spilled on the constitutionality and ethical validity of this section. The relevant question however is, why are churches against this provision? Different reasons have been sent forth into the public space, ranging from the spiritual inconsistency of the provision to the constitutional nullity of the Section. It has been argued that the government is trying to regulate matters that are within the realms of spirituality. Arguments have also turned on the supposedly ignoble intention of the government to strip churches and their members of their God-given rights to association and freedom of religion.

Essentially, it is argued that the government is trying to cause a rancor where two or more people are gathered in reverence of the most high. 

This objection is anchored on the peddled view that the Act devolves wide, arbitrary, unfettered power upon the Commission to suspend the trustees of these associations. In driving home this point, several commentators have made a heavy weather about Section 839(1) of the Act. Their grouse with the subsection is that it creates an unfortunate situation whereby the Commission can, as dictated by its varying fancies, suspend trustees and appoint trustees even when the appointed trustees do not subscribe to the tenets and ethos of the affected association. This means that we may have a situation where the incorporated trustees of a school can be suspended and a notorious lout be appointed as interim managers. To further illuminate the inherent and absurdity of this subsection, as canvassed by the antagonists of the Section, they claim that a preposterous situation where traditionalists are appointed as interim managers might arise to our stark consternation. This anomaly is reinforced by the fact that the Act didn’t provide any guidelines to the court or the commission as the case may be in the appointment of new trustees. Conclusively, the fulcrum of their objections to the Section is the wide discretionary power it confers on the Commission. 

1.  ANY CAUSE FOR ALARM WITH SECTION 839 OR JUST THE UPROAR OF IMPRESSIONABLE ALARMISTS? 

With the hue and cry accompanying the promulgation of the Act, particularly with respect to Section 839 of CAMA, the question that demands a swift answer is: is Section 839 really an obnoxious provision which deserves the opprobrium that has greeted it? It is my humble view that both sides of the debate have good reasons to panic. In an attempt to illuminate my position, this exposition shall take a contrastive trajectory with a view to showing the strength and weakness in the arguments advanced by both sides of the divide. 

• Subsection 839 is to be read holistically and not in isolation

To begin with, it is my humble but firm view that it is wrong to read Section 839(1) in isolation. I begin with this argument in recognition of the popular debate as to whether Section 839(1) of CAMA provides for two modes of suspending the trustees: unilateral suspension by the Commission (after having sought and obtained the permission of the Minister) and suspension by way of judicial processes. It is submitted that Section 839(1) cannot be read in isolation but in harmony with the rest of the subsections. If a holistic reading is done, it is clear that the commission would have to go to court as a matter of compulsion before any trustee(s) can be suspended or removed. The question however is whether there is anything in the Section or in the Act generally that makes it imperative that the court must read the subsections together. With respect to this, it is submitted that there are viable provisions that support this claim. 

First, when one takes a methodical and calm view of the entire subsections of Section 839, one would ineluctably arrive at the conclusion that it is the intendment of the drafters of the Act that only the court should be the deciding authority. Admittedly, Section 839(1) points to the Commission as the sole authority charged with the responsibility of suspending the trustees. However, when we consider other subsections, the assertion that the Commission must obtain a court order to suspend the trustees would gain strength. Let us consider the relevant provisions: Subsection 2 provides that the trustees can also be suspended by an order of court upon a petition by the commission or one-fifth of the members of the association. However, the petitioners must present convincing evidence as requested by the court. 

 This subsection clearly makes the order of court a condition precedent for both the Commission and the petitioner. However, this is not the only provision producing this legal consequence. Subsection 3 provides thus:

• 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-

1. 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
2. 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. 

This subsection indicates that the court can hear the petition and specify the functions to be performed by the interim managers and the role of the commission is advisory in this circumstance. However, it should be noted that the Commission may as well play supervisory roles pursuant to subsection 4 of this section. Nevertheless, this doesn’t change the fact that it is the court that can suspend and appoint additional trustees in this circumstance. In the same connection, subsection 6 provides  

• that a court of competent jurisdiction may upon the petition of the Commission or members of the association-

1. 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
2. By order appoint such number of additional trustees as it considers necessary for the proper administration of the association

 Subsection 6 has further shown that the power to suspend officers of the association and also to add additional trustees as it deems it fit is the preserve of the court. All these subsections made reference to the court, except subsection 1, thereby reinforcing the assertion that Section 839 is to be read holistically. However, it must be noted that subsection 7 derogates from the assertion that only subsection 1 made reference to the Commission having the power to unilaterally remove the trustees. Subsection 7 provides thus:

 “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-

1. Any trustee who has been responsible for or privy to the misconduct or mismanagement or whose conduct contributed to or facilitate it; or
2. By order of the Court, establish a scheme for the administration of the association”

This subsection appears to corroborate the lingering assertion that the Commission can unilaterally suspend or remove the trustees. However, this conclusion can only be reached when one reads subsection 7 in isolation. This is because when one considers the provisions of Subsection 8, one will come to realize that the input of the court is somewhat implied. 

Subsection 8 “provides that the court may by order replace a trustee removed under subsection (7)”

 The scope of subsection 8 is shrouded in ambiguity. However, it will appear that the purport of both subsections (7 and 8), after a composite reading, is to give the Commission the power to remove a trustee while the court is the only entity that can replace a removed trustee. This suggests that even when the Commission intends to remove the trustees it still must proceed to the court if it desires to replace the removed trustees. After all, the suspension or removal of trustees will be geared towards replacing them with interim managers. This creates the impression that the drafters of the Act intended to create a partnership between the Commission and the court just as is obtainable under Subsection 3. 

 Furthermore, another reason for maintaining that Section 839(1) must not be read in isolation is that the whole of Section 839 is ambiguous, thereby making the adoption of a literal rule of interpretation less likely. There have been arguments from different quarters that the wordings of Section 839(1) are clear and as such, the literal rule of interpretation should be adopted. If this counsel is heeded, then the position of the law will be that Section 839(1) permits the Commission to unilaterally suspend or remove the trustees. Although the law is trite that where the words of a statute are not ambiguous, the court must give them their literal meaning, it must be appreciated that it is correspondingly trite that where using the literal rule of interpretation would lead to absurdity, the court must adopt the liberal view.

 Accordingly, it is submitted that the wordings of Section 839(1) in light of the other subsections are ambiguous and can produce absurdity if given the literal view because subsection 2 is a mandatory provision while subsection 1 is an enabling provision. Subsection 2 appears to be saying that the court ‘shall’, as a matter of compulsion, suspend the trustees through an order, while subsection 1 is saying the commission ‘may’ by order suspend them. The first ambiguity with this is that it is unclear whose order must lead to the suspension: the court or the commission? Furthermore, does it mean that even where the court issues an order to suspend the trustees, the commission may decide not to suspend them? Or does it mean that the Commission may issue an order to suspend the trustees but must proceed to the court to obtain an order of the court to make its (the commission’s) order effective? Conclusively, it is clear that reading each subsection in isolation would create ambiguity when given the literal meaning. 

The third ground for contending that the subsections must be read together is crested on the fact that under the Charities Act of England and Wales, 2011 as amended by the Charities (Protection & Social Investment) Act 2016, where the Commission can unilaterally suspend or remove the trustees without a court order pursuant to Section 76 of the Charities Act, there is no equivalence of Section 829(2) of CAMA. This means that the Commission in England has unfettered powers to remove and suspend trustees. In fact, the Act is saturated with the phrase “of his own motion”, thereby indicating that the Act doesn’t mince words to show that the Commission can suspend trustees without any recourse to the court. On the other hand, the drafters of CAMA inserted subsection 2, which it is submitted is a clear indication of their intention to make sure that the Commission is not vested with wide powers like its counterpart in England. 

In the final analysis, it is submitted that contrary to the fears voiced by the Christian community to the end that Section 839 confers wide and unbridled power to the Commission, it is submitted that the section contains enough checks and balances, especially considering the fact that the section is a replica of the provisions of the Charities Act, 2011 and yet still contains subsection 2 which cannot be found in the Charities Act. 

• Section 839 is not a novelty to the church

 With the fierce opposition put up by the Christian community, one is forced to ask whether this is the first time a government would be making an attempt to regulate the activities of the church, especially through the agency of a Commission with wide powers. The unassailable fact is that majority of these churches obey far worse stringent laws in England and the United States of America and none has ever complained that these laws encroach on their rights to association. As earlier noted, Section 76 of the Charities Act empowers the Commission in England to suspend charity trustees “of his own motion”. In fact, the Act was amended by the Charities (Protection & Social Investment) Act 2016 to confer more power on the Commission to make a disqualification order where the statutory criteria set out in Section 181(A) of the 2011 Act are met. Suffice to say that this power to disqualify can be exercised based on the discretion of the Commission. Furthermore, it is important to reiterate that the Charities Act doesn’t have subsection two of CAMA 2020.

Additionally, while many have berated the drafters of the Act for providing that the Commission only needs to ‘reasonably believe’ that any of the six conditions is in place, same can be said about the English law which provides that the Charity Commission only needs to be ‘satisfied’ that the trustees have committed a wrong. These churches obey these laws religiously as lawful orders from constituted authorities. This engenders the question: why are churches against the same laws they obey in foreign countries even when these laws have been made mild in their own country?

 Although, the Charities Act is riddled with similar wide powers, it is submitted that there are valid reasons for the churches to be apprehensive of Section 839 of CAMA 2020. First, even though the position in England leaves the commission with wide discretionary powers, it provides for the issuance of warning. Section 75 (A) of the Charities Act provides that the commission may issue a warning if it considers that the trustees have committed a breach of trust or other misconduct or mismanagement in that capacity. Furthermore, Section 75A(3) provides that before issuing the warning, the commission must give notice of its intention to give the warning, while subsection 5 provides that any such warning specify the action the commission is considering to take. These provisions are absent in CAMA, 2020, thereby invigorating the fear that the commission may wake up one day to pursue recklessness without any prior warning. As attractive as this point is, it should be noted that while the Charities Act makes provisions for the issuance of warning, the Act makes it to be at the discretion of the Commission. 

 The second reason why the fears of the churches cannot be said to be misplaced is that the political realities in England is different from that of Nigeria. In England, theirs is a clime where the government cherishes the ethos of democracy, respects fundamental human rights of its citizens and is transparent in its dealings as well as being accountable to its citizens. Essentially, there is a level of trust reposed in the government by its citizens in these climes. However, in Nigeria, the government is notorious for its insatiable appetite for clamping down its perceived antagonists. There have been various attempts to put in place restrictive regulatory measures in the form of legislations by the current regime. Two years ago, it mooted the idea of an NGO bill but had to perish that thought after fierce opposition from the public. There is the controversy surrounding the intention to pass the Hate Speech Bill as well as the Social Media Bill into law. Not long ago, the same government introduced the Water Resources Control Bill which is currently generating heated debates. 

In the same connection, the Nigerian government, in its supposed fight against corruption, has unluckily earned itself the reputation for persecuting its perceived opponents or anyone antagonizing its policies. Therefore, it is not unsurprising for these associations to dread the possible reality where the government, through the Commission, starts victimizing these associations because of their censorious dispositions. For example, Socio-Economic Rights and Accountability Project (SERAP) is known for always taking a dim view at the actions of the government. With Section 839, the right to freedom of expression of SERAP and even the churches, which are now known for their contributions to socio-political matters, may now be in jeopardy. 

 On the whole, it is clear that while there are other objections to the purport of Section 839, the dominant is the distrust in the government to not turn this new law into a tool of persecution. However, that a law is open to being used arbitrarily doesn’t mean and shouldn’t be taken to mean that the law is arbitrary. After all, the same fear comes with even the most innocuous law. 

• Churches can always proceed to court for judicial review

 There are those who have said with vigor and unusual optimism in our justice system that even if Section 839(1) is interpreted to mean that the Commission can unilaterally suspend or remove the trustees, the affected trustees can always march to court for redress. This counsel is hinged upon the purport of Section 6(6)(b) of the Constitution which gives a right of access to court to everyone. This would suggest that the court can be used as a machinery to curb the excesses of the Commission when acting unilaterally. The drawback with this position is that there is an erroneous and farcical assumption that the government of the day is one that is subservient to court orders and succumbs to the dictates of the rule of law.

Additionally, the counsel to approach the court presupposes that our administration and dispensation of justice system is swift and does not take donkey’s years to come by. We were all here when the then Chief Justice of Nigeria was unlawfully and unconstitutionally given the marching order by the presidency. All attempts to remedy the gross and unpardonable anomaly ended in futility. That is the fate of the number one officer of the judiciary; who are trustees to dare to think that they are invincible? 

• NO DEFINITIONS FOR CERTAIN KEY EXPRESSIONS

 As part of the several reservations registered against Section 839 of CAMA, 2020, one that is most prevalent is the assertion that the Act didn’t define or describe certain expressions which are believed to be vital to achieving the aspirations of the government in creating a serene environment that produces business and commercial boon. It has been contended that the Act didn’t define what ‘reasonably believe’ or ‘public interest’ or ‘misconduct’ or ‘mismanagement’ means. Truly, the Act never defined these terms, but the question is whether such expressions are capable of being tied to a definitive definition? Can any legislation in any clime accurately capture acts that can be grouped as misconduct? Is there any legislation anywhere that has been able to define what ‘reasonable belief’ means? Even the Charities Act that employed the term ‘satisfied’ didn’t define this term. Can we really capture acts that can be said to be of public interest? Even the Land Use Act that tried to define public interest did so by creating an indefinite list, thereby showing the difficulty with ascribing a specific definition to these concepts and making same final. Moreover, this absence of definition further reinforces the notion that this section is ambiguous and cannot be given its literal meaning.

• THE CRY FOR MEDICINE AFTER DEATH 

With the obstreperous and defiant opposition that this section has generated, one who is a stranger to the scheme of things would think that the Act was just dropped on Nigerians suddenly. CAMA 2020 didn’t start today; it started with the 8^th Assembly. This reveals so much about the apathy of the Nigerian citizenry to legislative enactment processes. Two years ago when the government tried to specially regulate the NGOs, Prof Odinkalu raised an alarm which forced the government to have a rethink. However, how is it that no one, not even the heads of the Christian bodies and associations noticed this controversial section in the bill before it was transformed into a law that now haunts the Christian community? This is telling. 

     * LACK OF A WORKING PAPER

One major cause of this legal conundrum as to the scope and correct purport of Section 839 of CAMA is the fact that there was no working paper followed by the drafters of the Act. 

7.0. CONCLUSIONS & RECOMMENDATIONS

Flowing from the foregoing exposition, the general conclusions are that this unpalatable situation could have been prevented if we had all lived up to our civic responsibilities as part of the legislative processes. Additionally, it is also clear that Section 839 of CAMA is not a novelty and cannot be said to be an incursion on the right to association. However, the drafting of this section is everything short of being desirable considering our political realities and the fickleness of our political and institutional infrastructure. With such a clumsy drafting, churches and other associations with incorporated trustees can as well be asked to live at the mercies of the government. This is not to say that the drafters of the Act, especially Section 839, didn’t have noble intentions for doing so. On the contrary, this writer shares the view that the rationale behind Section 839 is one that the country is in dire need of. However, this cannot be done with such an improper drafting. 

Against this background, it is advised that in future when the government wants to enact a law, it should do more than copying other laws elsewhere and start cultivating the habit of drafting a working paper that will serve as a guide and reality check to the drafters of such legislation. In the same connection, it is advised that the general public begin to participate in public hearing of bills so as to x-ray such bill with a view to extrapolating obnoxious provisions that may be hiding in such a bill. Furthermore, it is advised that the churches and NGOs should combine their efforts together and maintain a united front in their agitation for the amendment of Section 839 of CAMA. This writer believes that the best way to correct this anomaly is to agitate that the Section be amended and not to march to court. We all know the rigor that comes with our justice dispensation. Additionally, the issue of locus standi can as well be a stumbling block should these associations head straight to court. 

Yusuf Oluwafemi Salako is a final year law student of the University of Lagos. He is the founder and Head of Research Unit of the Ori David Consult. 

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