SERAP asks court to stop Buhari from using ‘draconian CAMA 2020 to target activists’

Socio-Economic Rights and Accountability Project (SERAP) has filed a lawsuit asking the Federal High Court, Abuja to “stop President Muhammadu Buhari from implementing draconian and unlawful provisions of the Companies and Allied Matters Act, 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 in the suit as Defendants are the Attorney General of the Federation and Minister of Justice Mr Abubakar Malami, SAN, and the Corporate Affairs Commission [CAC].

In the suit number FHC/ABJ/CS/172/2021 filed last Friday, SERAP is seeking: “an order stopping President Buhari, Mr Malami and the CAC from implementing the unconstitutional provisions of CAMA 2020 which allow the Federal Government to arbitrarily and unilaterally cancel or revoke the certificate of registration of any association on flimsy grounds. These provisions may be used as a pretext for rights violations.”

The suit followed SERAP’s letter to President Buhari in August, 2020 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.”

SERAP is arguing that: “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.”

SERAP is also arguing that: “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.”

According to SERAP: “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.”

SERAP is also seeking an order of injunction “restraining the Corporate Affairs Commission 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 filed on behalf of SERAP by its lawyers Kolawole Oluwadare and Opeyemi Owolabi, 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 believe 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.”

SERAP is seeking the following reliefs:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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
6. AND any other ancillary or consequential orders as the Honourable Court may deem fit to make in the circumstance of this case.