Section 839 of CAMA 2020; The Counter-Argument

Monday,August 31, 2020 1:40PM / by Kayode Adeniji, Esq/ Header Image Credit: Thisday Newspaper

It was fulfilling to see that the national discourseon CAMA 2020 was triggered by my legal opinion on section 839 of CAMA,which was published on 12th August, 2020. However, I have read andlistened to various submissions of senior lawyers, members of the technicaladvisory committee, and public officers on the intention behind CAMA 2020 as itrelates to NGOs and religious organizations. I must confess that I find them alittle disappointing. I will not join issues on some submissions that may notadvance our imagination towards economic revival in Nigeria. Most of them weremerely attempting to do damage control; the purpose of which I could not wrapmy head around. Please see below what I consider the Three (3) mostimportant thoughts on this Law:

Wrong interpretation of section 839 (1) & (2) CAMA 2020

Sec 839 (1) provides that:

The COMMISSION MAY by order suspend thetrustees of an association and appoint an interim manager or managers where itREASONABLY BELIEVES...

In line with the literal rule ofinterpretation, I submit that:

a. This subsection refers to the 'Commission',not the Court.

b. The word 'May' suggests an exercise ofdiscretionary powers by the commission, not the court.

c. The entity that will 'reasonably believe' isthe commission, not the court.

d. Applying a golden or mischief rule ofinterpretation to suggest that the phrase 'by Order' in this section means arecourse to the court of law is totally incorrect. To rely on the golden andmischief rules of interpretation, at a time when the law hasn't even takeneffect, is a pointer to the fact that it will not bear any good fruit. We needto drop now.

How can the commission reasonably believe a fact, and it would be the Court togive the order? It is like a hungry man, who prepares his own food, andthereafter gave it to another man to eat it on his behalf. Therefore, subsection1 has nothing to do with the Court. The Court has no power here.

Subsection 2 now provides that: The trustees SHALL besuspended by an 'Order of Court' upon the petition of the commission orone-fifth of the members of the association.

The word 'SHALL' is mandatory and thesuspension can only happen by a petition.

The defenders of CAMA want us to think thatsubsection (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 draftingconfuses the public and the business community in this 21st century, it isbetter to drop that section.

Furthermore, section 842 provides thatthe commission may dissolve an association by an order of court, but once thecourt dissolves the association, the commission is left to direct how the moneyin the account will move. Court dissolves, CAC controls the money withoutrecourse to the court. Is Nigeria ready for this?

Copying everything from the UK, US and others

Secondly, on the policy and jurisprudence sideof this debate, I am aware it wouldn't be easy to change the thinking patternof the black man. However, I submit that the UK Charity Commission template isnot suitable for Nigeria at this time.

It is a fact that politics in Nigeria is aviolent venture, full of cult clashes, assassinations, stealing andembezzlement of public funds. The Nigerian political class is not at the samelevel with its UK counterpart. We will get there by putting in some work. Wecannot copy the regulation regime of the United Kingdom the same way we copy BigBrother Naija.

CAMA 2020 is a golden opportunity for us tofast-track our economic revival, we shouldn't allow the religious and politicaldistractions in section 839 to derail those noble and smart provisions.I submit that corporate commercial consultants to government must strike abalance between corporate commercial perspectives to regulation and a littlebias for jurisprudence.

Furthermore, there should be at least 10percent increase in the number of newly registered companies, due to therelaxed requirements- and I know CAC has only achieved 50 percent digitizationof his services. CAC has not proven itself efficient enough to take on theadditional workload of regulating these companies, let alone NGOs and religiousorganizations. This is why I maintained in my previous opinion, that it is overambitious and counter-productive as it relates to the KPIs of the RegistrarGeneral of CAC. Most lawyers can testify to the "efficiency" of CAC.

Our thinking must be original. We need to copyworkable templates and abandon the impracticable. We should not stop atthinking out of the western box. We need to construct our own box. Mark mywords, Nigeria will not reach her own destination by following the path ofother nations.

Signing The BillInto Law Does Not Make It Too Late For Amendment

The fact that the president had signed the billdoes not make it impossible to amend. The presidency can withdraw his assent,pending the conclusion of the amendment. After all, we have a listeningPresident. This is how a nation constructs her own box and starts thinking likea freeborn.

Conclusion-Why Everything Comes From Asia

Our journey as a nation is long, but the timeis short. We cannot afford this distraction. Section 839 should be expungedfrom CAMA. I am Thirty-Seven (37) years old, and my seven (7) year old son isasking me why most of the things we buy in the house are made in China. We haveeverything we need as a nation. All we need now is less drama and intensefocus.

Editor's Note

KAYODE ADENIJI is the senior partner at LawraclesLegal Practitioners. The opinions expressed in the article are strictlythat of the Author and do not necessarily represent the views and opinions of Proshareor its Editorial Board.