Imagine you woke up from a bad dream yesterday, only to find out that you are in another bad dream today. Then you wake up from it tomorrow, only to find yourself in another bad dream, which gives way to yet another nightmare and so on in that manner, like an everlasting set of Russian dolls. No matter how varied the subjects of the nightmares are, they always end with the same conclusion – the Nigerian government wants to take away all economic and civil rights by hook or crook. This is one way of describing what an examination of the recently ratified Companies and Allied Matter Act 2020 reads like.
Here we go again.
Over the past year, NewsWireNGR has published at least four separate deep dives into new and proposed laws and regulations put forward under the Buhari administration, that all pursue the same holy trinity of legislative and regulatory agenda – attacking freedom of speech and the civil space, abrogating property rights and economic prospects and instituting regulators, offices and bodies that exist above the jurisdiction of the court system.
This bill, which is supposed to be a harmless bill about ease of doing business follows the exact same playbook, with the added bonus of now being the law following the President Muhammadu Buhari’s signature on August 7.
Over the course of its 870 sections spread out over 604 pages, the bill has at least four clauses containing these anti-democratic policy directions strategically hidden in plain sight.
Among other things, it empowers the government to forcefully take over civil society organisations at will and expropriate their property. It also contains an unbelievable clause that expressly names a private business belonging to an All Progressives Congress (APC) member, effectively giving state backing to the revenue-generating activity of a politically-connected private entity.
It then criminalises freelancers alongside the entire Nigerian grey economy in an audacious regulatory power grab that opens the door to Nigerian citizens having their money seized from their bank accounts at the whim of the Nigerian State. Finally it contains a clause that is as comically unconstitutional as it is brazenly anti-democratic, purportedly preventing any individual or organisation from taking legal action against it unless it gives them permission to. This is the inside scoop on CAMA 2020, the Buhari administration’s latest successful attempt to smuggle 1984 into 2020.
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CAMA 2020: NGO Bill in Disguise
In 2019, one of the bills that NewsWireNGR delved into was the ‘Bill for an Act To Provide For The Establishment Of The Non-Governmental Organizations Regulatory Commission For The Supervision, Co-ordination And Monitoring Of Non Governmental Organizations,’ popularly known as the ‘NGO Bill’. Originally introduced into the House of Representatives in 2016, it generated a huge uproar and was eventually put on ice when it became politically impossible to force it through. The provision of the bill that caused the loudest uproar was the proposed ability of the government to direct or even take over the activities of NGOs and civil society organisations (CSO).
Without raising as much as a whimper however, CAMA 2020 has got this very provision of the NGO Bill passed into law. According to Section 839 of the bill, the government now has the power to remove the management of any such organisation and replace it with whoever it wants based on nothing more than what side of the bed it wakes up on.
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The highlighted sub-clause (iii.) can be explained in plain English as follows: “The commission may remove and replace the trustees of a CSO if it determines that it is in “the public interest” to do so – in its sole opinion and based on criteria nobody else has access to.” In other words, the Buhari Administration or any of its successors can now legally take over Amnesty Nigeria, SERAP or any similar organisations it has previously antagonised openly, if their definition of “public interest” means “the government must not be embarrassed.”
Legislative Cronyism Hiding in Plain Sight
Section 704 looks like a boring, bog-standard section about company law and the process of liquidation and insolvency practise. A closer look however reveals something very unusual that meets all the criteria for what can be described as “corruption.”
The Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN) is expressly named as the preferred government-recognised body which insolvency practitioners must be registered with in order to practise.
The problem with this is that BRIPAN is not in fact a government-recognised professional body like the Institute of Chartered Accountants of Nigeria (ICAN), which was established Act of Parliament No 15 of 1965. BRIPAN, it turns out, is a private company limited by guarantee registered in 1994 as a non-profit association.
It also carries out revenue-generation activities including sale of membership forms and organising membership trainings and Fellow workshops for N90,000 and N250,000 respectively.
What this means is that someone somehow got their private revenue-generation activities written into law and effectively mandated as a pre-condition for Insolvency practise in Nigeria, as though their private company were a government-affiliated institution. A peek behind the veil to see who this super-connected individual behind BRIPAN is revealed this:
Once a member of President Olusegun Obasanjo’s Vision 2020 Steering Committee, Abiodun Ismail Saka-Layonu is a Senior Advocate of Nigeria (SAN) with over 38 years of experience as a lawyer. He also sits on the board of Stabilini Visinoni, a civil engineering company, and Bi-Courtney Limited, the embattled concessionaire of MM2 Airport and the Lagos – Ibadan expressway. Layonu is a card carrying member of the ruling All Progressives Congress (APC) and he took part in the 2018 Osun State gubernatorial race alongside eventual winner Gboyega Oyetola.
In other words, CAMA 2020 has taken the private business of a ruling party member and written it into law, effectively forcing anybody who wishes to become an insolvency practitioner in Nigeria to pay money to said party member’s “non-profit organisation.”
Criminalising the Informal Sector – 21,000,000 Nigerians are now Criminals
According to the Bank of Industry, Nigeria’s informal sector contributes up to 65 percent of the country’s GDP. This sector is generally made up of rural small scale farmers, urban small scale retailers, artisans and freelancers. The idea of a Nigerian government in its current situation attempting to criminalise 65 percent of the country’s economy with a stroke of a legislative pen would ordinarily be seen as somewhere between horrifying and hilarious, because it is both profoundly unwise and utterly unenforceable. Yet this is precisely what CAMA 2020 does with this clause in section 863.
As terrible as the idea of introducing potentially unenforceable legislation is, the real trouble perhaps exists because of how unenforceable it is. Specific figures from Nigeria are unavailable, but Sub-Saharan estimates put the informal sector’s share of people in employment at anything from 72 percent to 90 percent. If we conservatively extrapolate that 72 percent of working Nigerians are informally employed, and we conservatively estimate that half (36 percent) are the sole proprietors and partners described in this clause, this means that at least 36 percent of Nigeria’s 58,527,277 people currently in any kind of employment – 21,069,819 Nigerians – are now apparently committing a crime by running a private business or income-generating activity outside of the government’s control.
The ugly danger inherent in this wide criminalisation of the very backbone of Nigeria’s economy can be inferred from the specific line of the clause underlined below:
“A fine prescribed in the Commission’s regulations from time to time.”
In other words, the government is now legally empowered to impose any fine at all it wants on at least 21 million Nigerians at any point in time. Social media content creators, freelance programmers and writers, itinerant musicians, roadside hawkers – nobody is spared. By classifying all unregistered economic activity as illegal, the door has also been opened to arbitrary garnishing or expropriation of private bank accounts of any individuals criminalised by this law using their readily-accessible Bank Verification Number (BVN) information.
The CAC is Now Above the Law – Literally
Finally and most concerningly, the new law contains a clause that was also observed in the Social Media Bill, Hate Speech Bill, NCDC Bill and the recent 6th NBC Code amendment – a clause to place a Nigerian government organisation outside or above the constitutionally mandated jurisdiction of the Nigerian court system. In the case of the Social Media and Hate Speech bills, the legislation was to the effect that legal action cannot be brought against the relevant ministry, but rather an unelected bureaucrat at the ministry who has no legal jurisdiction to hear legal appeals would make all final decisions. The CAMA 2020 iteration of this unconstitutional clause is less in-your-face, but no less obnoxious.
According to the clause, the jurisdiction of the Nigerian court system to hear a legal complaint is somehow subjugated to the CAC’s unilateral directive to allow it 30 days to prepare for a lawsuit before it is filed. In other words, if any individual or organisation is affected by any of the afore-mentioned clauses, their constitutional right to immediately seek legal redress is somehow suspended and they must notify the CAC in writing of their intention to sue, their name, their home address and their desired reliefs, and then wait 30 days, presumably for the CAC to pay them a nice home visit to share tea and cookies.
Bonus Clause: All Foreign Companies Must Register. Except Chinese Ones.
You can read the full text of the CAMA 2020 bill here.
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It is imperative when non-lawyers want to comment on a piece of legislation to seek the aid of lawyers in order to enrich their discourse.
Firstly, with the title, “hidden horrors”, the gullible may be persuaded to think these were “smuggled in” or hidden from the bill when being considered. The truth is nothing was “hidden” in the bill. Nigerians had the chance to engage with the bill and its provisions just as we did with the Social Media bill, etc referenced in the article but most “civil society groups” thought it was something that concerned companies (because of the title and didnt engage as robustly as it would have.
In the entire article, the second issue raised concerning BRIPAN i believe is the only valid one. Normally, under a law, it is sufficient that the law simply says that practitioners (in this case insolvency practitioners) must be members of a recognised professional body in that field and nothing more. Specifying BRIPAN which is a private company limited by guarantee raises valid issues of cronyism and inelegant drafting. On this both the legislators who went through a clause by clause consideration and nigerians in general who didnt give the bill the required public scrutiny, dropped the ball.
On the other issues raised by the writer, it betrays his lack of knowledge of the law and legal interpretation of statutes. With regards to Section 839, while subsection 1 says the trustees of an association may be suspended by order of the commission, subsection 2 specifies that such order must be by a court and the subsequent subsections detail the process and procedures. So, No the CAC is not placed above the courts and cant suspend suo moto (on its own) without a court order.
With regards to the charge of “criminalising the informal sector”, the writer betrays a misreading of section 863. Subsection 1 of that section says a person or association of persons shall not carry on a business AS a company, partnership, busines name, etc without registration. It doesnt criminalise the informal sector or say an individual cannot engage in buying and selling, but if you must do so using a business name or company, etc then such entity must be registered. This is standard all over the world and the writer may make reference to the old CAMA for similar provisions. In any case, what you’ll find is that many Nigerians have registered business names with which they carry on business no matter how micro some of those businesses are.
Also pre-action notice as provided in section 17 is standard in most legislations creating public corporations, it doesnt elevate the company above the law that you’re serving it a pre-action notice.
The most egregious is the attempt by the writer to feed into the current hoopla about chinese loans by suggesting tongue in cheek that chinese companies are exempt from registration. This is just feeding into his confirmation bias. I’d advise him, even though hes not a lawyer to read through the old CAMA enacted in 1990 and see similar provisions – in order to see that this is not for chinese companies.
Overall, public commentators owe a duty to their readers, while expressing their opionions, not to mix up facts or mislead the public by their own ignorance.