Reconciling NGO Regulatory Commission Bill with existing law -By Kaine Agary

The Nigerian National Assembly

The legislature has the exclusive power to make laws for the good and benefit of Nigeria and her citizens. However, one would hope that in exercising this power they would use the resources available to them (their legislative aides and the Law Reform Commission) to consider existing laws that cover the subject matter of the bills that they propose to enact into law.

The problem in Nigeria is not the absence of laws but the enforcement of laws. How is creating new laws the solution to inability to enforce the existing laws? Non-governmental organisations are already subject to the law. The Companies and Allied Matters Act (CAMA) a very bulky piece of legislation addresses many of the concerns that have apparently prompted this Bill. The objective of the Bill is to set up a regulatory commission for the supervision, coordination and monitoring of non-governmental organisations, civil society organisations, etc.

Under CAMA, there are two ways that a not-for-profit organisation can be registered: as Incorporated Trustees, or as a Company Limited by Guarantee.

Section 590(1) of CAMA provides that, “Where one or more trustees are appointed by any community of persons bound together by custom, religion, kinship or nationality or by anybody or association of persons established for any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose, he or they may, if so authorised by the community, body or association (in this Act referred to as “the association”) apply to the Commission in the manner hereafter provided for registration under this Act as a corporate body.”

The application procedure requires the submission of the aims and objects of the association which must be for the advancement of any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose, and must be lawful. The application package must contain the Constitution of the association, which must state the procedure for disbursement of the funds of the association, the keeping of accounts and the auditing of such accounts, where subscriptions and other contributions are to be collected.

Before the association is registered, upon complete submission of the required registration documents, the application is then publicised in two daily newspapers circulating in the area where the corporation is to be situated and one of those papers must be a national newspaper. If any objections are received, the Corporate Affairs Commission takes that into consideration before registering the association.

Changes to the name or objectives of the association must be reported to the Corporate Affairs Commission and will be publicised in the same manner as the initial application. CAMA also provides that all documents delivered to it by the association will be available to anyone for inspection, upon payment of the prescribed fee to the Commission. Annual returns and dissolution of the association and its assets are also covered by CAMA.

For companies limited by guarantee, CAMA provides in S26(1) that, “Where a company is to be formed for promoting commerce, art, science, religion, sports, culture, education, research, charity or other similar objects, and the income and property of the company are to be applied solely towards the promotion of its objects and no portion thereof is to be paid or transferred directly or indirectly to the members of the company except as permitted by this Act, the company shall not be registered as a company limited by shares, but may be registered as a company limited by guarantee.”

Section 26(5) provides that the memorandum of a company limited by guarantee shall not be registered without the authority of the Attorney-General of the Federation. This is already a way that the government monitors the objectives of NGOs and CSOs. Since the Bill does not exempt any organisation registered under any other laws of the federation, it is possible that a company’s memo will be acceptable to the Attorney-General, but not acceptable to the Commission. This looks to me like government working at cross-purposes and duplicating function.Section 26 also deals with the dissolution of the company and the distribution of its assets after the dissolution.

Section 373 covers the requirement to make annual returns which include certified copies of accounts of the company and a report of the directors.

These provisions cover many of the intentions of the Bill, except that the Bill goes too far in my opinion. Requiring people to register every two years; get approval from the NGO Commission before they can spend monies that they receive; turn over all assets to the Commission upon dissolution of the NGO. Before the directors of NGOs sneeze, they must get approval from the NGO Commission. The provisions for the employment of foreign nationals are already covered in Immigration policies. The only thing that will come out of this is regulatory fatigue, which will either lead to non-compliance or throwing in the towel and closing shop. NGOs fill in the gaps where government has failed; they help to push the agenda of the people. The only people that will suffer under such a regime are the citizens that well-meaning NGOs have been set up to assist.

How is it possible to consider setting up a new government institution when we have trouble adequately funding the ones that exist? What the legislature needs to do is to diligently and honestly focus on their oversight functions to ensure that government institutions are discharging their duties to Nigerians as they should.

This Bill is an assault to all well-meaning Nigerians who sacrifice their time and resources to providing for the needs of their fellow citizens.