The Nigeria NGO – A sector overdue for reform – Part I

As I enter into the Legal Profession in Nigeria, I had hoped to do so on a rather surreptitious basis quietly going about my business, earning my fee and keep, and subsequently retiring to my village at some point. Modern legal practice however demands some visibility particularly via social media – a website, Facebook presence, Instagram, the lists goes on and of course, the writing of a Blog. So what do I start with in writing a Blog? Something non-controversial, which would display my research and writing skills, my grasp of my subject matter and also be appealing to readers.

As I mulled over this, I came across the Sahara Reporters headline: Nigerian Human Rights Groups Sue National Assembly Over NGO Regulation Bill . I knew then that whilst the legal profession would for me be both fulfilling and rewarding, it was not likely to be without its bruising moments.

So I turn to the suit filed by lawyers under the umbrella of the Human Rights Agenda Network (HRAN) seeking to stop the National Assembly from having further deliberation on the NGO Regulation Bill. And I have to ask; is my understanding of the law so limited? Or is it my understanding of democratic processes that has a lacuna so wide that I have fallen into it? Or is this simply an audacious move on the part of my learned and esteemed brethren which I am yet unable to grasp?

As I understand it the following reliefs have been sought from the Federal High Court Abuja:

1. A DECLARATION that it is unconstitutional and unlawful for the defendants to consider, for the purpose of passing into law, a Bill containing provisions that infringe on the Constitution, including the fundamental rights of the plaintiffs and their members.

2. A DECLARATION that HB111: NGO Regulatory Bill sponsored by Hon. Duro Faseyi on 20/10/2015; HB585 NGO Regulatory Bill sponsored by Hon. Umar Buba Jubril on 2/6/2016, and HB705: Civil Society Committee of Nigeria Bill sponsored by Hon. Douye Diri on 15/06/2016 constitute in their provisions and intendments, gross infringement or threat of infringement on the fundamental rights of the plaintiffs and of their members to freedom of expression, assembly and association and non-discrimination enshrined in sections 39, 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria and therefore, to the extent of such inconsistency, are unconstitutional null and void.

3. A DECLARATION that HB111: NGO Regulatory Bill sponsored by Hon. Duro Faseyi on 20/10/2015; HB585: NGO Regulatory Bill sponsored by Hon. Umar Buba Jubril on 2/6/2016, and HB705: Civil Society Committee of Nigeria Bill sponsored by Hon. Douye Diri on 15/06/2016 contravene the provisions of the Companies and Allied Matters Act (CAMA), as their provisions place discriminatory burden on the plaintiffs and their corporate members more than placed on other corporate entities, and therefore are unlawful.

4. AN ORDER of perpetual injunction restraining the defendants from continuing with any or further deliberation, consideration and/or passing into law of HB111: NGO Regulatory Bill; HB585: NGO Regulatory Bill, and HB705: Civil Society Committee of Nigeria Bill.”

A quick look at the role of the National Assembly under the Constitution section 4.2 states that the National Assembly shall have power to make laws for the peace, order and good government of the Federation. Nowhere in the Constitution is there a qualifier to this provision to suggest that this power would be subject to the determination of a lawyer or scourge thereof. This power is unfettered and cannot be diminished or restricted by the Court.

Nonetheless, one must recognise the purpose and importance of section 4.8 of the Constitution which states: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law …” It is respectfully submitted that this provision amongst other things is to (i) prevent the Legislature, i.e. the National Assembly or House of Assembly to supress the third arm of Government – the Judiciary; in order to allow for democratic checks and balances and (ii) to ensure that due processes are followed in the exercise of that power.

This is buttressed by the decision of their Lordships in A.G Bendel State v A.G Federation and 22 others [1981 All NLR 85 SC] , where the plaintiffs were able to successfully challenge the passing of a Bill into an Act – The Allocation of Revenue (Federation Account) Act 1981. The Supreme Court held inter alia that the said Act was null and void for the failure of the National Assembly to follow the prescribed legislative procedure for passing the Bill into Law. It is noteworthy that the said Bill had already been passed into Law and the Court was therefore in a position to decide on its lack of due process.

To seek an Order from the Judiciary to restrain the Legislature from further deliberation of a Bill in a democratic state is not only premature, but beggars belief! The very essence of a Bill is that the merits and de-merits of the proposed legislation are fully deliberated taking into consideration the remedy which the legislation seeks, the views of various stakeholders and impact on society. It is this very essence I fear that has not been fully grasped hence the rush to the Court hoping to mystify with rules, procedures and processes what is clear to my Agege bread seller – the body responsible for passing laws under the Constitution of the Federal Republic of Nigeria is the National Assembly.

It would be futile for me to try and unpick each of the reliefs sought by the plaintiffs in this matter as this rests with the Federal High Court in Abuja. Nonetheless, I will contend that the place to contest a Bill is the National Assembly through lobby groups, petitions to elected representatives, online petitions etc. rather than this high handed approach to the Court. To quote his Lordship Justice Nnaemeka-Agu JSC in Imonikhe v AG Bendel State [1992 6 NWLR (pt248) p396 at p411SC] “A Constitution is the organic law, a system of fundamental principles according to which a nation, a state, or body, or organisation is constituted and governed.” Perhaps it is time to allow this organ to breathe rather than stifle it.

In my next blog I shall outline why this Bill is right for the country.

About the Author: Ade Lawal is Head of Chambers at 153 Chambers, Victoria Island, Lagos. He has over 25 years of Corporate Governance experience in the UK and over 15 years of working primarily with NGOs.

#NGO #Reform #Nigeria