BY LINUS CHIBUIKE
SOCIO-ECONOMIC Rights and Accountability Project (SERAP) has filed a
lawsuit, seeking an order stopping President Muhammadu Buhari from
implementing what it described as the unconstitutional provisions of the
Companies and Allied Matters Act 2020, which allow the Federal
Government to arbitrarily and unilaterally cancel or revoke the
certificate of registration of any association on “flimsy grounds”,
noting that these provisions may be used as a pretext for violation of
rights.
SERAP is specifically asking the Federal High Court, Abuja, to stop
the President from implementing the provisions of CAMA, 2020, which
allow the Federal Government “to arbitrarily merge a new association
with an already registered association; to suspend and remove trustees
of any association; and to take over funds belonging to any association,
and transfer such funds to another association on the pretext that the
account is dormant.”
Joined as Defendants in the suit marked, “FHC/ABJ/CS/172/2021”, filed last Friday,
are the Attorney General of the Federation and Minister of Justice, Abubakar Malami, and the Corporate Affairs Commission.
SERAP had, in August 2020, written a letter to the President,
requesting him to revoke his assent to CAMA 2020 and return it to the
National Assembly for repeal of the “repressive provisions”,
particularly sections 839, 842, 843, 844 and 850 contained in Part F of
the Act, and any other similar provisions.
The group said, “The right to freely associate with others works both
ways. The others you want to associate with must be prepared to
associate with you. None can be imposed on the other. The right to
freedom of association also connotes the right of the others to freely
associate with or dissociate from whosoever.
“The Nigerian Constitution of 1999 (as amended), the International
Covenant on Civil and Political Rights, and the African Charter on Human
and Peoples’ Rights guarantee to everyone the right to freedom of
association, to belong to any association of their choice. By allowing
the Defendants to arbitrarily merge two or more private associations,
religious associations, charities, NGOs or professional bodies, CAMA
2020 blatantly violates this fundamental human right.”
“Section 842(2)(a)(b)(5)(6) of CAMA 2020 violates the right of these
associations and other Nigerians to property including the right to
operate their bank accounts and use their funds the way they choose to
subject to already existing banking regulations and practices,” it
added.
SERAP has therefore sought for an order of injunction restraining CAC
or persons acting on its instructions from further implementing,
applying and enforcing “the offensive and unlawful provisions of
sections 831; 839; 842; and 850 of CAMA 2020 and any regulations made
pursuant to these provisions, pending the hearing and determination of
the suit.”
The suit was filed on behalf of SERAP by its lawyers – Kolawole Oluwadare and Opeyemi Owolabi.
It read in part, “The power under section 831[i][ii] to merge
associations without their consent is manifestly unwarranted and serves
no purpose, and yet most likely to be abused to violate the rights of
individuals to associate with other people of like minds, particularly
given the growing restriction on civic space and crushing of peaceful
protests in the country.
“The Defendants do not have the constitutional and legal power to
suspend or remove a trustee of any registered association on a mere
belief or suspicion the association is engaged in fraud, and without due
process of law, and fair hearing.
“There is no provision in Section 839(7) of CAMA 2020 to the effect
that a person or trustee affected can make representations and defend
themselves as stipulated by the Nigerian Constitution and international
standards. This provision does not provide for any administrative or
quasi-judicial review or appeal process, which means the decision by the
Corporate Affairs Commission is final.
“The power to arbitrarily and unilaterally suspend and remove
trustees of any legally registered association, and to appoint an
interim manager or managers to run the affairs of any such association
on the basis of undefined public interest is unlawful, and contrary to
the Nigerian Constitution and international human rights treaties to
which the country is a state party. The exercise of this arbitrary power
is subject only to the approval of the supervisory Minister, a
political appointee.
“Section 842(2)(a)(b) of CAMA 2020 which allows the taking over and
transfer of funds belonging to a registered association such as private
associations, religious associations, charities, NGOs or professional
bodies registered under Part F, to another association is in clear
violation of Section 44(1) of the Nigerian Constitution, as it does not
provide for payment of compensation and the opportunity for the
determination of the interests of the association before a court of law.
“In Nigeria, everyone has a right to their property, and this right
cannot be arbitrarily taken away. A recognized and acceptable canon of
interpretation is that statutes such as CAMA 2020 which purport to
deprive citizens of their proprietary interest and acquired rights, are
always interpreted strictly.
“Section 850(3) of CAMA 2020 which provides for notice of hearing of
the petition to be given to association is of no consequence, as the
subject matter of the suit for dissolution would have been dealt with by
the act of the Corporate Affairs Commission alone without recourse to
due process of law.”
On account of these arguments, SERAP is seeking the following reliefs:
“A DECLARATION that Section 831(i)(ii) of CAMA 2020 which empowers
the 3rd Defendant to treat an association as forming part of an already
registered association and treating two or more associations as one is
null, void and of no effect under Section 1(1)(3) of the Nigerian
Constitution, for being inconsistent with Section 40 of the
Constitution, Article 22 of the International Covenant on Civil and
Political Rights, and Article 10 of the African Charter on Human and
Peoples’ Rights
“A DECLARATION that Section 839(1) and (7) of CAMA 2020 which
empowers the 3rd Defendant to suspend and/or remove trustees of a
legally registered trusties is null, void and of no effect under Section
1(1)(3) of the Nigerian Constitution, for being inconsistent with
Sections 36(1)(2) and 40 of the Constitution, Article 14 of the
International Covenant on Civil and Political Rights and Article 7 of
the African Charter on Human and Peoples’ Rights
“A DECLARATION that Section 842(2)(a)(b), and (5)(6); 850(1)(d) and
(2)(e) of CAMA 2020 is null, void and of no effect under Section 1(1)(3)
of the Nigerian Constitution, for being inconsistent with Sections
36(1)(2); 40 and 44(1) of the Constitution, Articles 22 and 10 of the
International Covenant on Civil and Political Rights and Articles 7 and
14 of the African Charter on Human and Peoples’ Rights
“AN ORDER OF COURT declaring Sections 831(i)(ii); 839(1)(7);
842(2)(a)(b), (5) and (6) and 850(1)(d)(2)(e) of CAMA 2020 as null, void
and of no effect under Section 1(1)(3) of the Constitution, for being
inconsistent with Sections 36(1)(2); 40 and 44(1) of the Constitution
“AN ORDER OF COURT setting aside portions of Company Regulations and
other directives and regulations made by the Defendants [particularly
the 3rd Defendant] pursuant to, and specifically relating to Sections
831(i)(ii); 839(1) & (7); 842(2)(a)(b), (5)(6) and 850(1)(d)(2)(e)
of CAMA 2020
“AND any other ancillary or consequential orders as the Honourable Court may deem fit to make in the circumstance of this case.”
A date has yet to be fixed for the hearing of the suit.