New CAMA, New Challenges

Even though the Company and Allied Matters Act 2020 (CAMA) addresses some of the deficiencies in the old one, the new Act recently assented to by President Muhammadu Buhari has generated fresh controversies and raised new challenges, for both the business community and faith based organisations. While the corporate world believes the new CAMA would potentially hamper the ease of doing business in Nigeria, some religious organisations are up in arms against its implementation. What really are the issues in this contentious piece of legislation? Pastor and Learned Senior Advocate, Femi Atoyebi and Chuks Nwana analyse certain aspects of the law, and CAMA 2020’s potential impact, generally

Pastor Femi Atoyebi, SAN

Introduction
In the past one week or so, so much furore has greeted the signing into law of the Companies and Allied Matters Act, 2020 by the President, Mohammadu Buhari on 07 August, 2020. I therefore, feel compelled to add my voice to these from the perspective of a senior Lawyer and a Pentecostal Pastor of about three decades. I also run a “Not – For – Profit” organisation which seeks to help men and fathers become more alive to their responsibilities to their wives, children and the society at large.

CAMA
The Act comprises a total of 870 sections spread over 604 pages. Only a few sections of these deal with “Not – For – Profit” organisations. I do not pretend to know all about the provisions of the Act. Neither do I plan to deal with all of its provisions. What I will attempt to do in this write-up, is to limit my comments and guidance to the “Not – For – Profit” organisations provisions and the differing comments (sometimes near violent in nature) that have greeted it.
I would like to point out by way of a general comment, that the Act is not perfect. That being said, I am yet to see an Act that is perfect. However, every Practitioner and user of it will agree that, it is long overdue for review.

These comments are made easier, because they is focused on just the few sections. These are Sections 823 to 839. In summary, Sections 823 to 835 provide for the registration of voluntary organisations such as religious, educational, customary, social, cultural, sporting, charitable, etc, by their trustees who shall not be less than two in number, the qualifications of such persons to hold office as trustees, replacement of trustees and or their objects, etc. As those sections do not come into play in the raging feud, I do not intend to dwell on them. Section 838 provides for how to deal with the income and or assets of the Association namely, that it shall be applied in and towards the declared objectives of the Association as contained in its Constitution. The ‘offensive’ Section seems to be Section 839 of the Act (See Section 839 CAMA).
It should be pointed out that the Act did not specifically mention Church, Mosque or any particular religion. The Act primarily seeks to introduce long overdue reforms into Companies Affairs and specifically, among other aspects, in the area of ease of doing business.

The Grouse of Some Sections of the Christian Community
The fears expressed by some sections of the Christian community, is that Section 839 of the Act is a surreptitious attempt by government to control the church and stifle it. If indeed, there is a covert plan to harm or destroy the Church by any government; past, present or future – the concerns would be legitimate, and as a member and a leader of the Christian community, I will not stand by idly and watch. However, if such allegation is based on Section 839 of CAMA, regrettably, I am unable to agree with the proponents of such a theory for a host of reasons.

Firstly, the Act seeks to regulate the conduct of businesses of all classes as it is the responsibility of government, which includes companies of all descriptions, associations, including charitable organisations such as churches, mosques, educational institutions, social clubs and all. It is the same laws that regulate the operations of Banks and Financial Institutions by, among others, restricting the term of office of its CEO to ten years, increase the capital base, etc. When the capital base was increased, some banks did not like it because they were unable to meet it and had to fold up or merge with other banks to remain afloat. In hindsight, that was a step in the right direction for our banking institutions.

There has also been the argument that, it was the Presidency that was responsible for the Act. I do not know who sponsored the Bill and I cannot hold brief for the government, but as a Lawyer, I am aware that it was an Act of the National Assembly (NASS) by which is meant, all our representatives across the length and breadth of Nigeria enacted the law and it was signed by Mr President when it was placed before him. It is no gainsaying that the NASS is comprised of people of all faiths, beliefs and prejudices, including Moslem clerics and Pastors, etc. This is the way we have all chosen to make our laws, and invariably, some interest groups will not always be happy with some laws or sections of it.

The process of making a law under the Presidential system that we run, is such that it affords everyone the opportunity to lend their voices to or against any law during the ‘making’ process. Firstly, it is widely circulated and then open to members of the public and particular interest groups, to make presentations as to why they consider a portion or whole of it repugnant or objectionable. The Bill then goes through first, second and third readings before a technical committee meets to finalise it, and then passed on to the President for his assent. As a Lawyer, I am aware that these procedural steps were followed in this case, and several interest groups made representations to the NASS.

What worries me here is that, it would appear that the Christian community was asleep or chose to ignore participation in the process. I was privileged to have served at some point in time as the National Legal Adviser to the Pentecostal Fellowship of Nigeria (PFN) when Pastor Ayo Oritsejeafor was President, and when the Association was having similar issues with a particular law, I had counselled at the time that, “fighting” a law is undertaken while it is being enacted and not after it’s promulgation, but during the process of enacting it. I suggested at the time, that either PFN or CAN or the whole Christian community set up a standing Committee to be made up of Christian Lawyers, legislators, professionals, etc, who would monitor what laws were being planned and to get actively involved in the process, by pushing its own agenda. I further suggested that as a community, Christians could even further their own agenda by sponsoring bills that could aid their vision as well. I am certain we have an array of the very best materials in these areas. Regrettably, I am unsure if this was done for, if it was, the story might have been different today. I suppose it is not too late.

Of particular concern to me is the objection by a section of the church leadership in the country that has been so vocal, and even threatening government on the performance of its constitutional duty to make laws for our country. As I alluded earlier, as a Christian and a Pastor, I do not see what disadvantage the church will suffer from the provisions of Section 839 of CAMA, over and above other religious and charitable organisations. I have seen and read some distortions on the relevant provisions to the effect that churches would be liable to taxes, but I cannot find any such provision in the Act. By law, Not-For-Profit organisations are not taxable; whether that be a church, mosque or whatever. My wife and I run a few. However, if we decide to diversify any of our charitable organisations funds into a commercial venture whereby we make a profit, we would become liable to tax and it would make no difference that the parent body is a charitable organisation. The taxable income would be limited to the business aspect of the organisation, so, if I decide to go into the business of printing from my charitable organisation and make profit, that income would be taxable.

Now, to the argument that Section 839(1) is designed to take over churches. The section provides for the suspension of trustees of an association and to appoint an interim manager over its affairs (administrative), under certain specified conditions. I would have tended to agree with that argument if that section ends there, but it does not, rather, it has three other sub-sections under (1) and additional 10 other sub-sections, all of which have to be read communally and not in isolation under the rules of interpretation of Statutes. I will suggest that every Christian who has one misgiving or the other go and read it, even if a layman, and if necessary, consult a Lawyer. No one should rely solely on what someone’s views are, but we must educate ourselves so we can proffer sound argument on any point. With profound respect to the proponents of this argument, I am unable to agree with them. On the face of it, the Section does not say so, and in the interpretation of statutes, it is not permissible to import into a law what it does not say, especially where the words employed are clear and unambiguous. Secondly, no specific reference was made to churches, mosques, or a particular faith.

Sub-section (a) of Section 839 provides an instructive condition precedent to the suspension of the trustees and interim take-over of an association, and it is that IF there has been any misconduct or mismanagement in the administration of the association, or IF it is necessary or desirable for the protection of the property of the association or ensuring its proper application towards its set objectives. Sub-section (c) states that this power may be exercised, if the affairs of the association are being run fraudulently. To further allay the fears in some quarters, sub-section (2) then provides that an order of court would be required to do this, and in approaching the court by the Petitioner or the Registrar-General (RG), the application must be supported by 20% of the association, who shall also present all reasonable evidence of their allegations to the court. It is ambiguous whether the 20% here speaks to the trustees or the larger organisation, which could be hundreds of thousands. I submit that, common sense can only suggest that it is referring to 20% of the trustees.

For the avoidance of doubt, I am a strong proponent of accountability and transparency in both private and public lives, and more so, in religious settings which are to exemplify what their followers must seek to imbibe, because basically, this accords with what the Christian religion teaches. See: 1Cor.4:1-2, 2Cor.8:20-21. Paul says in 2Cor.8:20-21 thus:
21 “Avoiding this, that no man should blame us in this abundance which is administered by us.
22 “Providing for honest things, not only in the sight of the Lord, but also in the sight of men.”
The Bible is replete with verses enjoining us to be accountable as stewards of the manifold blessings of God, and this is precisely what most serious churches teach and try to live by, which is why several people are attracted to some of them in the first place; and as long as we keep to the tenets of the Bible, which is our Constitution as Christians, (which that section seeks to replicate and enforce), we should have nothing to fear.

Basis of Regulation of Not-for-Profit Organisations
When a person or group of persons apply to register a charitable organisation otherwise known as “Not-for- Profit” organisation, the implications are that he is undertaking a venture that would benefit the society and therefore, government would confer on it some privileges such as exemption from taxes. In consideration, whatever funds that come into it are for the public, and not for personal use. Consequently, the organisation is accountable to government, so, government must regulate the organisation to ensure that its funds are properly applied in and or towards its declared objectives. This is a sacred duty government owes to its citizens, and it would amount to gross abdication of that responsibility if government fails to do so. Every responsible citizen pays tax as he is obliged to do, but if government decides to exempt some because of the value they add to the society, that organisation has both legal and moral obligations to be accountable for funds contributed to it. This is the international best practice all over the world. In my view, this should be a given and not open to debate. Assuming for a moment that bad motive is behind the law in question, it would be literally impossible for any church that’s complying with the law to fall victim of it.

There is no nation on earth that can be run without laws. The alternative would be chaos and violence. To my mind, all that those sections seek to do, is to ensure probity, accountability and transparency by all associations operating in the country; whether they be churches, mosques, social or academic; so long as they are not for profit and are non-tax paying. They cannot eat their cake and have it. In the last few years, we have seen fracas in some churches with members of the laity throwing chairs at the clergy in the church for what they perceived as financial recklessness on the part of the former, and it took the authorities to wade in and prevent a breakdown of law and order. Several other such incidents are either not known or reported and it is therefore, incumbent on any responsible government to put in place laws that would drive sanity into the system.

I shudder to ask why the largest churches which are largely orthodox such as the Catholic Church and the Anglican Communion in Nigeria for example, are not complaining about the law. Certainly, they have the highest number of adherents and if they are comfortable with the law, we should be asking the right questions. Only this August, the UK Charity Commission was reported to have taken over the management of a popular Nigerian church in the UK, for what it described as breaches of the Charity Commission’s laws and Regulations. It wasn’t the first, and I do not think it will be the last. The same rules apply in the US to charitable organisations, including churches. Internationally acclaimed preachers in the US have been and are being indicted regularly under identical laws, and the heavens did not fall.

Many may remember that only late last year or so, the sitting American President’s NGO, Donald J. Trump Organisation, was indicted for mismanagement of its funds and ordered to refund about $2m to public coffers. Additional disciplinary measures were also taken against the organisation.

Why should Nigeria or any association be an exception? I can see none. The world has become a global village, and transparency and accountability have become the twin pillars upon which it is being built. I have no doubt that the Nigerian church and its leadership as I know it, has no problem with accountability and transparency as they comply with similar laws in Europe and the Western world at large, where they have churches. I believe that what those who have misgivings need, is proper education by their Lawyers. It would be instructive to hear from those opposed to the law to point out the material differences between the parallel laws in the UK and the US which they obey dutifully, and CAMA that they are so venomously opposed to. This will help us to better appreciate their positions, and ascertain if there are any marked differences in the laws. From my knowledge of those laws, there is no material difference with ours. Perhaps, they should also explain why they abide by the laws in those countries and do not want to in Nigeria.

Now the Law has been enacted, what next?
No matter what position we all take on the matter, the fact remains that it is now the law of our land and as law-abiding citizens, we have a civic duty to obey it, with dire consequences for disobedience. Objections to some of its provisions, ought to have been taken long before now. But, this does not mean that aggrieved parties are left without remedies. Firstly, they can approach the NASS for an amendment of the sections they are unhappy with. However, as previously articulated in this paper, it will be a difficult task in these circumstances to find justification to seek its removal from the law or, to have it expunged because one is unable to justify why a breach of it should not be punished, being what the Act seeks to prevent or punish as provided in Section 839 (1 & 2).

The only other remedy available to any organisation that is unhappy with the law, is to apply to de-register as a Not-for-Profit. Happily under the Act, it is not mandatory for an NGO such as a religious organisation to be registered, because under the Act, an organisation can voluntarily choose not to register or opt out of registration, and thereafter, government will not be able to regulate it. However, once it is de-registered, it loses all its privileges, including but not limited to its tax exempt status.

Self-Regulation is Key
I would like to end this write up with a word of admonition. The issue of regulating “Not-For-Profit” organisations is not new in Nigeria, and the idea was first floated by the Jonathan administration which was actually responsible for drafting the original provisions. I was privileged to have a copy of that draft law, and I dare say that it was much more detailed and maybe, draconian than this abridged version. For instance, it proposed to limit the age of a serving General Overseer/Superintendent of a church to 70 years, which personally, I did not consider right, as such matters should be left for the particular organisations to determine in their respective Constitutions.

A few years ago, the Vice President delivered a paper to the Body of Senior Advocates of Nigeria (BOSAN) of which he is a member, on the occasion of our annual dinner in Lagos, the object of which was to challenge us to self-regulate. As a privileged group of Lawyers, my colleagues and I were thoroughly inspired and challenged by the speech. We all left the dinner, seriously thinking how to heed the golden advice. He reviewed the history of the world’s leading monarchs and ruling classes, including the British and Dutch monarchs, and noted that from their inception, they recognised that they are a privileged class of people. They also recognised that to continue to enjoy these privileges, they needed to self-regulate their behaviour in line with what is universally acceptable, namely; that it must be accountable, transparent, and that they must all be subject to the rule of law like everyone else, failing which, they stood the risk of losing their privileges.

As the British monarch exemplifies the values of the British people, members of the family must at all times conduct themselves in a manner that is compatible with their status. The same goes for the political class all over the world or, should I say in civilised climes. Where a member of any ruling class behaves in a manner that is inconsistent with his status, such a person sticks out like sore thumbs and risks losing his privileged position in no time.

Conclusion
The time has come for the Church to self-regulate its affairs by being accountable in matters of administration and finance, and to make the conduct of its business transparent, so that there would be no need to be regulated by government. More importantly, the government and other private institutions would look up to church organisations for leadership in the areas of accountability and transparency. Until that is done and seen to be done, any responsible government would consider it its duty to ensure that it runs, not like an independent association within the Republic, but as one that is subject to its laws. For government not to wade in, in such circumstances, would be to invite every other interest group in the country to seek autonomy in it’s affairs within the State. The only plausible consequence, in such circumstances, would be utter chaos.
In that regard, God forbid!

Pastor Femi Atoyebi, SAN