Socio-Economic Rights and Accountability Project (SERAP) has sent an
open letter to President Muhammadu Buhari requesting him to “urgently
rescind your assent to the Companies and Allied Matters Act, 2020, [CAMA
2020], and to send the legislation back to the National Assembly to
address its fundamental flaws, including by deleting the repressive
provisions of the Act, particularly sections 839, 842, 843, 844 and 850
contained in Part F of the Act, and any other similar provisions.”
The organization is also urging him to “instruct the Registrar-General
of the Corporate Affairs Commission, Alhaji Garba Abubakar, and Attorney
General of the Federation and Minister of Justice, Abubakar Malami, SAN,
not to implement or enforce the CAMA 2020 until the legislation is
repealed by the National Assembly and brought in line with the
Constitution of Nigeria 1999 (as amended), and Nigeria’s international
human rights obligations.”
In the letter dated 22 August, 2020 and signed by SERAP deputy director
Kolawole Oluwadare, the organisation said: “With these provisions, the
government now has overly broad and discretionary powers to arbitrarily
withdraw, cancel or revoke the certificate of any association, suspend
and remove trustees, take control of finances of any association, and to
merge two associations without their consent and approval of their
members.”
According to SERAP, “Rather than taking concrete measures to improve the
legal environment and civic space that would ensure respect for human
rights and media freedom, your government has consistently pursued
initiatives to restrict the enjoyment of citizens’ human rights. These
rights are protected from impairment by government action.”
SERAP said: “These restrictions, coupled with repressive broadcasting
codes and Nigerian security agencies’ relentless crackdown on peaceful
protesters and civil society, demonstrate the government’s intention to
suppress and take over independent associations.”
The letter, read in part: “SERAP is concerned that the provisions would
be used by the authorities to exert extensive scrutiny over the internal
affairs of associations, as a way of intimidation and harassment, which
would eventually unduly obstruct the legitimate work carried out by
associations.”
“We would be grateful if the requested action and measures are taken
within 14 days of the receipt and/or publication of this letter. If we
have not heard from you by then, the Registered Trustees of SERAP shall
take all appropriate legal actions to compel you and your government to
take these measures in the public interest.”
“Please note that SERAP has instructed its Legal Counsel Femi Falana,
SAN to take all appropriate legal actions on our behalf should your
government fail and/or neglect to act as requested.”
“Citizens’ decision to join with others in pursuit of a common goal is a
fundamental aspect of their liberty. The right to freedom of association
also plainly presupposes a freedom not to associate. This freedom is at
risk if the government can compel a particular citizen, or a discrete
group of citizens, to merge their associations.”
“Constitutional guarantees of freedom of association would be very
limited if they are not accompanied by a guarantee of being able to
share one’s beliefs of ideas in community with others, particularly
through associations of individuals having the same beliefs, ideas or
interests.”
“Similarly, freedom of association creates a forum for citizens in which
they may freely seek, without any unlawful interference by the state, to
move public opinion and achieve their goals. That “forum” cannot exist
if the government is at liberty to treat one association as forming part
of another or coercing one association to merge with another
association.”
“By seeking to suspend and remove trustees, and appoint interim managers
for associations, the government seems to want to place itself in a
position to politicise the mandates of such association, and to
undermine the ideas that the right to freedom of association and related
rights are supposed to protect in a democratic society.”
“SERAP believes that the government granting itself the powers to
suspend and remove trustees of legally registered associations and to
take control of their bank accounts constitute an effective restraint on
human rights.”
“Allowing the government to take control of the bank accounts of
association would impact on the rights of the associations, and also
seriously undermine civil, cultural, economic, political and social
rights as a whole.”
“These rights are in fact parts of the attributes of citizenship under a
free government. “Liberty” includes the right to enjoy the rights to
freedom of association, expression and peaceful assembly. Our
constitutional jurisprudence and international standards allow only the
narrowest range for their restriction.”
“Combatting fraud, mismanagement, corruption, money-laundering and other
modes of trafficking by associations is legitimate. However, it is not
sufficient to simply pursue a legitimate interest, limitations need also
to be prescribed by law and be necessary in a democratic society.”
“Under the Nigerian Constitution and international human rights law,
controls need to be fair, objective and non-discriminatory, and not be
used as a pretext to silence critics. Your government has legal
obligations to create an enabling environment in which associations can
effectively carry out their legitimate activities.”
“These restrictions have no legal basis, as they fail to meet the
requirements of legality, legitimacy, proportionality and necessity. The
Human Rights Council has called on States to ensure that any regulations
of associations ‘do not inhibit the independence and functional autonomy
[of associations]'”
“We have also sent a Pre-Action Notice of a lawsuit pursuant to Section
17[2] of the Companies and Allied Matters Act 2020, to the Corporate
Affairs Commission to urgently initiate, promote and support deletion of
Sections 839, 842, 843, 844 and 850 and any other repressive provisions
of the Companies and Allied Matters Act 2020.”
“In communication No. 1274/2004, the Human Rights Committee observed
that ‘the right to freedom of association relates not only to the right
to form an association, but also guarantees the right of such an
association freely to carry out its statutory activities. The protection
afforded by article 22 of the International Covenant on Civil and
Political Rights extends to all activities of an association.'”
“According to the Committee, ‘the existence and operation of a plurality
of associations, including those which peacefully promote ideas not
necessarily favourably received by the government or the majority of the
population, is a cornerstone of a democratic society.'”
“Under international law, the use of the term “democratic society”
places the burden on States imposing restrictions on freedom of
association to demonstrate that the limitations do not harm the
principles of pluralism, tolerance and broadmindedness.”
“The Committee on Economic, Social, and Cultural Rights has also called
on states not to pass legislation that would ‘give the Government
control over the right of associations to manage their own activities.'”
“Associations, as organised, independent, not-for-profit bodies based on
the voluntary grouping of persons who pursue activities on a wide range
of issues, such as human rights, democratic reforms, and social and
economic development, are an integral part of democratic institutions.”
“The right to freedom of association is to be enjoyed alone or in
community with others. Without this collective dimension, the effective
realisation of the right would often not be possible. SERAP believes
that the rights to freedom of association, freedom of expression and
peaceful assembly to advance beliefs and ideas are inseparable aspects
of the “liberty” assured by due process of law.”
“The right to freedom of association is interrelated with other human
rights and freedoms, including the rights to freedom of expression,
freedom of peaceful assembly, protection of property, the private life
and correspondence, an effective remedy, fair trials; and right to be
protected from discrimination.”
“A genuine and effective respect for freedom of association cannot be
reduced to a mere duty on the part of the State not to interfere.
Therefore, it is incumbent upon your government and all public
authorities to respect and protect this right, and to guarantee the
proper functioning of an association, even when they annoy or give
offence to persons opposed to the lawful ideas or claims that they are
seeking to promote.”
“Any limitations on human rights, including the right to freedom of
association must be proportionate to the interest to be protected, and
must be the least intrusive means to achieve the desired objective.”
“Implementing or enforcing these repressive provisions will have a
significant chilling effect on legitimate activities of associations,
and would seriously undermine their independence and operations.”
“SERAP considers the CAMA 2020 the most repressive legislation in
Nigeria’s history, especially given the unlawful and impermissible
restrictions contained in Part F of the Act. Sections 831, 839, 842,
843, 844 and 850 of the Act are manifestly inconsistent with sections
36, 39 and 40 of the Constitution of Nigeria 1999.”
“Under section 831[i][ii], the government through the Corporate Affairs
Commission (CAC) is empowered to treat any unregistered association as
part of an already registered association, and without any lawful
justifications whatsoever. The government also has the power to treat
two or more associations as a single association on the flimsy pretext
that the associations have the same trustees.”
“Section 839[1] and [7] of the Act also grants the government through
the Corporate Affairs Commission the powers to arbitrarily and
unilaterally suspend and remove the trustees of any legally registered
association, and to appoint an interim manager or managers to run the
affairs of any such association, if the Commission reasonably believes
that there is “misconduct, mismanagement, and fraud” in the association,
or on the basis of undefined “public interest.”
“The government will determine and decide what constitutes “public
interest” in all cases. The exercise of the powers under section
839[1][7] is subject only to the approval of the supervisory Minister, a
political appointee.”
“Similarly, sections 842, 843 and 844 grants the government through the
Corporate Affairs Commission overly broad powers and discretion to
arbitrarily, unlawfully and unilaterally regulate the finances of any
association, and to take control and take over bank accounts lawfully
belonging to legally registered associations under Part F of the CAMA
2020.”
“Further, section 850[2][e] empowers the government through the
Corporate Affairs Commission to arbitrarily and unilaterally withdraw,
cancel or revoke the certificate of registration of any duly and legally
registered association.”
“These repressive provisions clearly and directly threaten and violate
the rights to freedom of association, freedom of expression, peaceful
assembly, privacy, property, and other human rights guaranteed under the
Nigerian Constitution and international human rights treaties such as
the International Covenant on Civil and Political Rights and the African
Charter on Human and Peoples’ Rights to which Nigeria is a state party.”
“SERAP notes that legally registered associations have also deposited
their constitutions and other documents with the Corporate Affairs
Commission under the now repealed and replaced CAMA 2004.”
“The Commission also enjoyed wide-ranging powers under CAMA 2004 to
regulate these associations, as the associations are required to
periodically report to the Commission. Registered associations are also
regulated under other existing laws, including anti-corruption and money
laundering laws, the Criminal Code and Penal Code.”