Nigeria NGO which way forward: Self-regulation or Government Regulation?
Background
Within the period of 2014 to 2016, the Nigerian National Assembly has made two attempts at creating some regulatory frameworks for non-governmental organizations (NGOs) in the country. In 2013, a “Bill to Regulate the Acceptance and Utilization of Financial/Material Contributions of Donor Agencies to Voluntary Organizations” (hereinafter 2013 draft NGO Bill) sponsored by Hon. Eddie Ifeanyichukwu Mbadiwe was drafted and circulated to NGOs and relevant stakeholders. The bill had passed through first reading and public hearings. At one of the public hearings, members of the NGO/CSO sector criticized the law because of its likelihood to stifle constitutionally guaranteed freedom of association which every person including legal persons are free to enjoy. The 2014 bill did not scale through as the 7th House of Representatives (hereinafter House) was dissolved in 2015 and voices refusing its passage seemed louder at that time. However, with the coming of the 8th House, a Bill to provide for the Establishment of Non- Governmental Organizations (NGO) Regulatory Commission (hereinafter 2016 draft NGO Bill) sponsored by Hon. Umar Buba Jibril was yet again submitted in 2016 which has currently gone through second hearing.
Some questions then come to mind. Why is the legislative arm of government insistent on creating a law to regulate the NGO sector? Will such a law not contradict the constitutional right to freedom of association? Can there be an inference that the sector is going above existing laws, and thus need to be regulated? Has the time not come yet, for the NGO sector to begin self-regulation as against being forcedly regulated?
Salient provisions of the 2013 draft NGO Bill
The 2013 draft NGO Bill had 15 provisions which provided diverse regulations and control by government of NGOs in Nigeria.
The Bill provided for prior permit[1] to NGOs from the Independent Corrupt Practices and other Related Offences Commission (ICPC)before the former can accept funding from foreign donors. NGOs must submit periodic information to the ICPC on the manner which the funds were utilized.[2] The Bill in Sec. 5 (1) (a) (i) & (ii) had proposed wide and broad powers for the regulatory body over NGOs, in that the ICPC can refuse approval to receive funding for an NGO if it thinks that the funding is “likely to affect the sovereignty and integrity of Nigeria or adverse diplomatic relationship of any foreign country”. The intended law allows the ICPC to obtain court orders restraining the NGO from withdrawing, transferring or making use of any monies it deems was not obtained with its approval[3] thereby expanding the scope of oversight powers that can stifle the existence of NGOs.
The ICPC is empowered by Sec. 9 to render bank accounts of NGOs unusable as it can seize the account of the NGO for four months without necessarily taking such proceedings to court for determination. Any offence under the law is punishable with a term of two years.[4]
Another concern over the bill was the broad definition of NGOs as it provided in Sec. 13 that “Voluntary” means any association incorporated or not, in whatever name it is called.
Salient provisions of the 2016 draft NGO Bill
The 2016 draft NGO Bill plans to set up a Commission for regulation of NGOs in Nigeria on all thematic areas. The Bill proposes a Commission with board members made up of several government representatives with three NGO representatives, where latter members must be approved by a National Voluntary Organization Agency before they can be appointed as members of the board. It is submitted that a discriminatory method of appointment singled out for NGO members is undemocratic and should not be considered.
The proposed bill creates bureaucracy for the enjoyment of a free and civil society, not mindful of Constitutional guarantee to exist in association whether registered or not. For instance, Sec. 11 of 2016 draft NGO Bill requires all NGOs to be registered with the commission and issued a license to operate in Nigeria. However, Sec. 13 (1) of the 2016 draft NGO Bill gives broad powers to the NGO commission to receive, approve or refuse registration of the NGO, if it so pleases, thus making it near impossible to associate. The proposed bill does not acknowledge the registration covered on the Company and Allied Matters Act, 1990 (CAMA) which is the law that incorporation of companies in Nigeria. In that regard, an “un-registered NGO due to refusal of the commission, cannot operate in Nigeria[5] even if such an NGO has already been registered by the Corporate Affairs Commission and deemed a body corporate entity with legal powers to sue and be sued. Again issuing another registration certificate to an NGO that has been registered under CAMA is a duplication of work by government agencies and a waste of tax payers’ money.
The coming into law of this bill will create unnecessary financial burden on the civil society, as it requires renewal of registration every two (2) years. Again, prior registration as provided in the bill[6]does not guarantee automatic renewal, since the Commission will have to determine if relevant documents such as financial reports have been submitted to it for scrutiny, before re-issuing another certificate. Not mindful of the registration for certificate, each time a project is to be implemented, the Minister’s approval must be obtained after the project has been registered with the Commission.[7] Considering the bureaucracy in government, it is doubtful if any project will get to be implemented before the required donor time frame elapses.
Another major concern with the 2016 draft NGO Bill is its possibility of affecting citizenship rights, when it provides a blanket clause on the requirement for “work permit in respect of prospective employees of a registered NGO”[8] before such employee can work with the NGO. The law does not here differentiate prospective employees as “expatriate/foreigners” from citizens. According to Wikipedia, “Work permit is the permission to take a job within a foreign country.” Invariably therefore citizens working in Nigeria cannot be heard to have obtained work permit before exercising their citizens’ right to work free of immigration laws.
The bill creates a duplication of duties on financial regulation and reporting when it requires NGOs to submit financial reports to the Commission for vetting, since payment of taxes by NGOs are already covered by the Federal Inland Revenue Service. Again, NGOs pay annual returns to the Corporate Affairs Commission as a form of declaration of existence and compliance with relevant provisions of the law. Requesting donors to first transfer to the Commission assets for capacity building of NGOs is to say the least, the controlling powers planned by this law and the unnecessary interference into the workings of NGOs, in Nigeria.
The Bill is ambiguous when it permits “refusal of registration on the basis of national interest”[9] Such wide ranging provisions have high tendencies of been deployed to exploit the public. National interest can be anything, in the eyes of anybody, thus making it a reason for refusal of registration for the purpose of operating as an NGO in Nigeria is first against the constitution and against the laws of legal drafting which frowns at ambiguous provisions.
Where laws tend to stifle democratic norms and rights, such laws cannot be deemed to be in the interest of that society, since it is most likely that constitutional orders and guarantees will suffer. One agrees, that not all rights are absolute and thus some can be limited, however, the limitation of any quailed right must be carried out as constitutionally provided. The right to associate is guaranteed in by the Nigerian Constitution in Sec. 40 which provides that:
“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…….”
However, the Constitution also provides that the “right to associate” can be limited, but such a limitation must pass the Constitutionally provided test in Sec. 45 (1) (a) & (b) which says that the law limiting the right must be justifiable in a democratic society, and in the interest of either public safety, defence, public order, public health,…. “or for the purpose of protecting the rights and freedoms of other persons”. It is argued that the proposed NGO law by the legislative arm of government, with a purported aim of improving transparency, accountability and for the purpose of record keeping of NGOs in Nigeria, has wide and sweeping powers that can vitiate constitutional guarantees. Thus such a bill, should not be considered nor passed into law, as the free society being enjoined in Nigeria will be limited.
In a nutshell, the law will give the Commission, regulatory powers on registration, implementation of project, financial and assets reporting and control with monitoring and evaluation powers. These are broad scopes, that no one organization can do all that. Again, one wonders where the resources will be deployed from to manage such an entity, in this time that national resources are dwindling due to international economic meltdown.
Thus no support should be given to pass any of these bill, and in this case the 2016 draft Bill, because the existence of such a law will translate the Nigeria free society to a closed and control society, though it exists as a democratic setting.
To be continued……
[1] Barbara S. Maigari is currently working as Program Manager/Consultant with Partners West Africa- Nigeria https://pwan.kainorete.com/team/barbara-shitnaan-maigari/ [2] Bill to Regulate the Acceptance and Utilization of Financial/Material Contributions of Donor Agencies to Voluntary Organizations, 2013. Sec. 2 [3] Id. Sec 3. (2) iii. [4] Id. Sec. 5 (2) [5] Id. Sec. 12 [6] Bill to provide for the Establishment of Non- Governmental Organizations (NGO) Regulatory Commission Sec. 13 (2) http://placbillstrack.org/upload/HB585.pdf [accessed August 31, 2016 @ 2:19pm] [7] Id. Sec. 16 & 17 [8] Id. Sec. 26 (1) [9] Id. Sec. 19 (1) [10] Id. Sec. 15
