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The International Journal
of Not-for-Profit Law

Volume 4, Issue 4, June 2002

A publication of the International Center for Not-for-Profit Law

Table of Contents

Articles

The Legal Framework for Civil Society in East and Southeast Asia
Barnett F. Baron

A Flaw in Comparative Studies of the Tax Benefits for NGOs in Latin America
Antonio Itriago M. and Miguel
Itriago M

The Principle of Subsidiarity in Italy: It's Meaning as a "Horizontal" Principle and It's Recent Constitutional Recognition
Andrea Maltoni

A Synopsis of Law Reform for Iranian NGOs
Zahra (Sahar) Maranlou

Tax Treatment of NPOs in Macedonia
Prof. Dr. Vesna Pendovska

Competition and Abuse of Association Membership
Assoc. Prof. Ivo Telec

Reviews

Working with the Non-Profit Sector in South Africa
Working with the Non-Profit Sector in Nigeria

By the Charities Aid Foundation / Allavida
Reviewed by Karla Simon

Legal and Organizational Practices in Nonprofit Management
By Pacquale Ferraro
Reviewed by Karla Simon

Promoting Legal and Institutional Frameworks for Corporate Social Responsibility in Peru
By Javier de Belaúnde L. de R., Beatriz Parodi L., and Delia Muñoz M.
Reviewed by ICNL Staff

Social Responsibility: 12 Case Studies from Chile
by Soledad Teixido, Reinalina Chavarri, and Andrea Castro
Reviewed by ICNL Staff

Case Notes

Asia Pacific:
Hong Kong

Newly Independent States: Russia

North Africa:
Egypt

North America:
Canada | United States

Sub-Saharan Africa:
Ethiopia

Western Europe:
United Kingdom

Country Reports

International:
FATF | World Bank

Asia Pacific:
Regional | Australia | Indonesia | Japan | New Zealand

Central and Eastern Europe: Bosnia and Herzegovina | Czech Republic | Hungary | Lithuania | Macedonia | Slovakia

Latin America & The Caribbean: Chile | Peru

Middle East and North Africa: Kuwait

Newly Independent States: Armenia | Azerbaijan | Kyrgyzstan

North America:
Canada | United States

South Asia:
India | Pakistan

Sub-Saharan Africa:
Nigeria | South Africa | Tanzania

Western Europe:
Regional | Belgium | Germany | Italy | United Kingdom

- - - - - - - - - -

Editorial Board

Country Reports: Sub-Saharan Africa

Nigeria

SIMPLY MISCONCEIVED

A Note on the Non-Governmental Organisation (Registration, Etc.) Bill 2001 

by Emeka Iheme*

Background: The relationship between the Nigerian state and civil society over the past few decades has been interesting, if turbulent. In the long years of military rule, which ended only in 1999, that most vibrant of all branches of civil society, the human rights NGOs, were at the vanguard of the campaign against military dictatorship and its excesses. The military government tried to drag these groups down from the high moral ground by propagating the view that they were disreputable and unpatriotic organisations that were paid by foreign interests to destabilise the country. The legal requirements and procedures for the registration of NGOs were toughened; the obtaining of a clearance from the police or security agencies became (and remains) part of the requirements of Nigerian law.  As a result, many NGOs failed to register. The statutory body charged with registering and regulating the conduct of NGOs (the Corporate Affairs Commission) keeps records of the NGOs it registers and exercises jurisdiction over them. But, because so many fail to register, the registered NGOs include only a small fraction of the NGOs operating in Nigeria. The many NGOs that are unregistered are, as a result, not placed within the jurisdiction of any regulatory authority.   

Apart from the human rights NGOs, other civil society groups, such as religious organisations, which were not even avowed enemies of the military dictatorship, also could not earn the trust of the authorities. Thus, impelled by a deep-seated suspicion of all institutions it did not control, the military government took over – in some cases without compensation – the schools, hospitals and other social welfare establishments owned by these organisations. The government  also routinely monitored the affairs of these organisations to ensure that they did not threaten the system. Internationally, this was the era in which the role of civil society as an important actor in the development process was increasingly being recognised. It was also the era in which NGOs were beginning to take centre-stage in the international arena to canvass for concerted global solutions to such common cross-cultural problems as the inferior social status of women. Women’s rights groups began to flourish, aided by the new consciousness created by the Beijing Declaration and its momentous aftermath. 

Provisions of the Bill: There is no doubt that the law and practice relating to the enabling environment for NGOs in Nigeria need to be reformed. It was ostensibly with this in view that the Non-Governmental Organisation (Registration, Etc.) Bill, a private members’ bill, was introduced in the Nigerian House of Representatives in recent months. Sponsored by an almost all-female team of legislators[1], the Bill (in the words of its Explanatory Memorandum) “seeks to provide for registration of all Non-Governmental Organisations operating in Nigeria with the aim of overseeing their activities and, to an extent, harmonise [sic] their operation [sic] and to provide for other matters contained therein.” It specifically seeks to establish a body to be styled the “Non-Governmental Organisation Council,” whose functions would be to determine the authenticity of NGOs operating in Nigeria, to “ensure a common codes of conduct [sic]” for them, “monitoring and evaluating standards of operations [sic]” of NGOs, “providing professional advice and services” to NGOs, maintaining a register of all NGOs in Nigeria and “providing information directories and other cooperative activities [sic].”

Under the terms of the Bill, The Council would have a board, to be headed by a Chairman, as well as staff, to be headed by a Registrar. The board would  consist of the Chairman and eleven members, of whom one person would be a representative of the Ministry of Women Affairs and Social Development. Five members each would be appointed by the Minister of Women Affairs and Social Development to represent “members of Non-Governmental Organisations at all levels of operation” and “donor agencies of Non-Governmental Organisations”. For the preparation and maintenance of a register of NGOs, the Council would be empowered to make rules on such matters as the evidence to be produced in support of applications and the fees payable in respect of the entry of the particulars of an organisation in the register. The Council would be empowered to publish a register of NGOs. The registration of an NGO with the Council is stated to be without prejudice to the provisions of the Companies and Allied Matters Act 1990 (under which the Corporate Affairs Commission has a broad mandate to, among other things, register and regulate the affairs of registered NGOs).

Critique: So many things are wrong with this Bill – from the underlying philosophy to the express provisions to the quality of draftsmanship – that it is difficult to know where to begin a critique! What the Bill actually seeks to achieve is insufficiently clear, but what is very clear is that if it becomes law then the task of stifling civil society groups which the military dictatorship began will, ironically, be completed by an elected civilian government.

In empowering the Council to determine the “authenticity” of NGOs, one sees the creation of an octopus that may arbitrarily pronounce as fake (on unspecified, thus probably open-ended, grounds), and thus discredit, any NGO that it does not approve of. What does the Bill mean by an “authentic” NGO? In other words, what is it that will make an NGO to be adjudged lacking in authenticity? Is it one that claims to exist while in reality it does not exist? If yes, then provided it is not used as a cover for anything unlawful, it threatens no one and nothing and may well be overlooked.  But if it is used as a cover for anything unlawful, then the existing body of laws can be invoked to deal with those behind it. Is it one that has run afoul of any law? If yes, then the existing law has covered the field and the provision is superfluous. Is it one whose activities, without really breaching any law, make those in public office uncomfortable or threaten some vested interests? If yes, then possibly all reputable NGOs will be adjudged lacking in authenticity. The point is that the term “authenticity” in this context is highly ambiguous, especially as it is not specifically defined in the Bill.

Also flowing from this ambiguity, there is the larger issue of whether such a statutory provision would be consistent with the constitutional guarantee of freedom of association.[2] It is submitted that a statutory provision, which empowers the arbitrary and negative labelling of an association formed by citizens, impairs or undermines their right to associate freely.  It is clear that grantjng unfettered discretion to the Board in this regard will inevitably result in violations of the freedom of association.

The same concerns of ambiguity, probable unconstitutionality, and the danger of abuse attend the other function that the Bill prescribes for the Council: that of “monitoring and evaluating standards of operations” of NGOs. It is clear from the Bill’s provisions that the terms “monitoring and evaluation” were not correctly employed here.  It seems that the true intendment of the provision is to empower the Council to closely oversee the affairs of NGOs, prescribing how they should do their work and ensuring that the prescribed standards or modalities are complied with. If this is the correct reading of the provision, it is objectionable on three grounds.

The first is that there is no justification for seeking to regulate the affairs of citizens’ associations as if they are professional bodies; standards in these associations need not be the same and must not be raised to a point that some citizens cannot meet them and therefore cannot freely associate with each other in a legal entity.[3] Where standards are prescribed for NGOs, they must be such that NGOs are free to subscribe to them and thereby obtain access to certain benefits (such as tax exemption, access to state grants and contracts, etc.), or choose not to subscribe to them and forego the accompanying benefits. To do otherwise would probably result in unconstitutionally circumscribing the freedom of association.

The second is that innovation and new ideas will be at risk if NGOs, many of which are advocates for new ideas, are subjected to a strict regime of regulations even as to the details of modes of their operation. If such a provision is enacted, NGOs could just be turned into bureaucracies and lose the drive for championing the cause of change. They could thus lose their raison d’etre.

The third is the danger that this power could, again, be abused by the Council to discredit an NGO it does not approve of.

The Bill further mandates the Council to establish and maintain a “register of all Non-Governmental Organisations in Nigeria”. While an NGO register is desirable and useful, freedom of association might again be endangered if all NGOs are obliged to register with the Council and would suffer adverse consequences if they do not.  This could be even more problematic because clause 5 of the Bill empowers the Registrar of the Council to impose conditions for the registration, including the payment of fees and the furnishing of evidence in support of applications. An NGO that fails or refuses to register will have fallen short of the expectations of the Bill, although the consequences of not registering are not spelt out.

Further ambiguity may be said to arise in respect of the scope of application of the Bill. Is it intended to apply to all NGOs or to women’s groups only? By virtue of clauses 2 and 10 of the Bill, it is the Minister for Women Affairs and Social Development who appoints the members of the board of the Council, although the Council is given power to register all NGOs in the country. Could it be that the sponsors of the Bill (nearly all female) actually intended only to regulate women’s groups? Or that the Minister for Women Affairs and Social Development should have jurisdiction over NGOs that operate in all fields, including the environment, human rights, etc.? It is unprecedented in Nigeria, and rather unsupportable, that the general regulation of NGOs should be made the responsibility of the Ministry of Women Affairs and Social Development as the NGOs work in various thematic areas, most being outside of the province of that Ministry. But even if the sponsors intended to advance the interests of a particular constituency, that of women’s rights groups, it might be a good idea for them to organise a meeting with representatives of these groups to find out whether or not the groups think that the Bill promotes their interests.[1]

In respect of the existing law, clause 5(4) of the Bill provides that the registration of NGOs with the Council shall be “without prejudice to their registration under the Companies and Allied Matters Act”, the general statute under which corporate bodies (including NGOs) are registered and regulated in Nigeria. This appears to mean that registration under the Bill shall be in addition to registration under the Companies and Allied Matters Act. The implications of this should not be glossed over. If the Bill becomes law, citizens who wish to set up an NGO will, in addition to meeting the existing elaborate requirements of registration under the Act also have to submit their applications through yet another bureaucracy. The task of satisfying the legal requirements for registering an NGO in Nigeria will therefore become slower and more expensive. The bureaucrats who will run the Council will begin to jostle with those in the Corporate Affairs Commission (which administers the Companies and Allied Matters Act) over jurisdiction, and the Council will undermine the Commission without in any way adding value or addressing the shortcomings of the present system. The proposed law and the Council it seeks to establish will, accordingly, be supererogatory.

In addition to these substantive critiques, the Bill is a remarkable example of poor (presumably hasty) legal drafting. It is full of incorrect or ambiguous or inelegant phrases. Examples include the following:(clause 2(1)(b)) “five persons appointed by the Minister representing donor agencies of Non-Governmental Organisations”, (clause 2 (1)(d)) “five persons to represent members of Non-Governmental Organisations at all levels of operation”, (clause 3(1)(b)) “ensuring a common codes of conduct and ethics of Non-Governmental Organisations in Nigeria”, and (clause 3 (1)(e)) “providing information directories and other co-operative activities”. The Bill calls into question the extent to which its sponsors understand the basic rights of citizens and the struggle in Nigeria to vindicate these rights in the face of threats from the forces of authoritarianism. An understanding of these would have enabled them to see the grave dangers to civil society and to civil liberty that lurk within the provisions of the Bill as drafted. It also calls into question the quality of the legislative aides who, at the expense of the taxpayer, work (or are supposed to work) for the legislators. Had these aides understood the real issues and the implications of the provisions, the general character of the Bill probably would have been different.  In addition, it would have been valuable for the drafters and the legislative aides to have acquainted themselves more fully with the development of such legislation in other countries in Africa; valuable experiences in South Africa, Tanzania, and Ghana might have been brought to hand.

Conclusion: The Bill is, without doubt, not the type that will meet the present need for better regulation of the NGOs in Nigeria. It is simply misconceived. Its sponsors should withdraw it and, if they are still interested in the reform of the law and practice relating to NGOs, return to the drawing board. It is the author’s understanding that the Bill will soon be withdrawn.

As has been argued elsewhere, “The most important legal issues confronting the NGO sector in Nigeria are the need to ensure that more organisations are fully brought within the jurisdiction of the regulatory agency [i.e., the Corporate Affairs Commission], the strengthening of the capacity of the regulatory agency while also making it less bureaucratic and arbitrary, and the need to encourage self-regulation by the NGO sector itself.” [4] While it is objectionable to make registration compulsory, the requirements and process of registration should be liberalised so as to encourage more and more organisations to register. What Nigeria needs is an improved and more efficient and less bureaucratic Corporate Affairs Commission, not a new Council that duplicates the activities of the Commission. The sponsors of the Bill may wish to address these germane issues in a new Bill, ideally not one aimed at setting up a new regulatory agency but one aimed at improving the existing statute (the Companies and Allied Matters Act) and reforming the existing regulatory agency (the Corporate Affairs Commission). Such state initiatives should be accompanied by more efforts on the part of the NGOs to regulate themselves through the developing, adopting and applying of voluntary codes of ethics.                          

[1] Editor’s Note – This failure to develop a process for considering the Bill and the issues it presents is inconsistent with other processes in recent years in Africa that have been covered by IJNL.  For example, in South Africa, the adoption of the NPO Act was preceded by a variety of consultations in a variety of fora , both national and provincial. In Tanzania, the debates over the NO Policy (the final version of which is discussed in this issue of IJNL) occurred over a number of years, in a fully inclusive process.  And in Ghana, where no legislation has as yet been proposed, the process for the adoption of the policy framework was fully inclusive.   

* Emeka Iheme is Executive Director of the Libertarian Institute of Nigeria.  He can be reached at emekaiheme@yahoo.com .

[1] Eight women and one man sponsored the Bill.

[2] The Constitution of the Federal Republic of Nigeria 1999 provides for the freedom of association (in s.40) in the following terms: “Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.”   

[3] This argument is analogous to the judicially endorsed view that the practice of journalism cannot lawfully be regulated to the point that persons who do not possess professional journalism qualifications are prohibited from producing and publishing newspapers or other journals. In its Advisory Opinion OC-5/85, delivered on November 13, 1985 in The Schmidt Case, the Inter-American Court of Human Rights, the judicial organ of the Organisation of American States, reasoned as follows: “This argument [on the desirability of licencing journalists] is based on a distinction between professional journalism and the exercise of freedom of expression that the Court cannot accept. This argument assumes that it is possible to distinguish freedom of expression from the professional practice of journalism, which is not possible. Moreover, it implies serious dangers if carried to its logical conclusion. The practice of professional journalism cannot be differentiated from freedom of expression. On the contrary, both are obviously intertwined, for the professional journalist is not, nor can he be, anything but someone who has decided to exercise freedom of expression in a continuous, regular and paid manner.”

[4] Emeka Iheme and Okey Okoroji, The Legal Regulation of NGOs in Nigeria – The ICNL Nigeria Country Report (ICNL, IRNL Reports,, 2001)                  

 

 

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