REFORMING THE NGO SECTOR

“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!” These were the operative words from an article penned in February 2018 and published in THISDAY on 20.02.2018 under the heading “The NGO Bill: NASS Must be Allowed to Perform its Duties”.

A year later and it is gratifying to note that a Federal High Court in Abuja presided over by the Honourable Justice Inyang Ekwo agreed with my postulation and dismissed the suit brought by Civil Society Organisations (CSOs), challenging the bill by the National Assembly to enact a regulatory commission to regulate affairs of non-governmental organisations (NGOs) in the country. The Honourable Judge said: “I’m unable to see where the process of making law could infringe on the rights of a person.” He stated further that: “A bill does not have life until passed into law. When a bill becomes a law that is when the court could be invited into the matter.” “The right to challenge a bill cannot be equated with the right to challenge a law.” “I hold that the court lacks jurisdiction to entertain the matter,”.

There has, however, been further development on the issue of regulation of Non-Governmental Organisations (NGOs) and charities with a bill titled “Establishment of the Federal Charities Commission of Nigeria” sponsored by Senator Duro Faseyi (PDP, Ekiti) which was presented to the National Assembly in January 2019 for first reading. The bill seeks to establish an independent Federal Charities Commission of Nigeria (FCCN) with the sole responsibility for providing a regulatory framework, establish and enforce institutional standards and administrative mechanisms, and enable recurrent registration and supervision of charities and Non-Governmental Organisations in Nigeria. The Bill also seeks to strengthen interdependency of external multilateral and indigenous interventions with a view to developing a viable third sector for public benefit thereby achieving institutional capacity for transparent and sustainable development.

Highlights of the bill include:

Objectives

Under section 2, the Commission will determine the charitable status of bodies as charitable organisations where such bodies fulfil a number of criteria. There will now be a public benefit test and assets can only be used for charitable purposes. There should be no association with any political party, political symbol, or influence or control by a government minister, or by a third-party organisation. The spirit of not-for-profit has been introduced with a requirement that profits can only be reinvested. There will be an accessible public register and the Commission will have powers to investigate errant charities.

Registration and Licensing

In accordance with section 22, there is to be a public register of charities open only to organisations which have fulfilled a public benefit test and carry on a specified list of activities ranging from relief from poverty to the advancement of education and, conflict resolutions or reconciliation. Successful registration will lead to a grant of a license with a charity number, which will be subject to annual reviews. All individuals undertaking charitable functions in Nigeria shall be required to be registered as accredited personnel and a separate database will be created for such purpose. The commission will also create departments for orphanages, mentally challenged and elderly, which will provide the framework for regulating the operations of such services nationally.

Offences and penalties

Under section 23, any person(s) convicted of an offense relating to the holding of a license shall be liable to the sum of N350,000, or to an imprisonment of two years or both. Such person(s) convicted shall be disqualified from holding any position of trust in any charitable organisation for a period of ten years. Also, any person(s) who makes signs or utters any false statement(s) or make such false declaration(s) in support for, for, or in response to a request for enquiries or investigation or during the re-registration processes by the Commission, such person(s) shall be liable to a fine of N500,000 or to an imprisonment of three years or both as well as disqualified from holding any position of trust in any charitable organisation for ten years.

In section 24, a charity may have its license revoked where its activities poses significant threat to security and unity; or where in the discharge of its primary charitable purposes, it deviates into ventures that are for personal or selfish gains; or where in the discharge of its primary charitable purposes.

Guidelines and procedures

Section 25 requires all charitable gifts in cash or assets or commodities or securities or investments to be declared and recorded by all charitable organisations. Gifts to leaders of religious organisations will follow specific guidelines set out to curb corrupt practices. Rather curiously, all workers directly employed by a religious charity to perform specific religious duties shall be exempted from taxes.

Reflection

The bill whilst laudable in its ambition to administer, control and regulate the not-for-profit sector (charities and NGOs), appears schizophrenic as it is not clear if it is the organisations or the individuals that work within them that are to be regulated. The hiving off for special treatment organisations that work with Orphans, mentally disabled and the elderly seem random and there is no particular basis for it. The many layers for compliance also suggest that the legislation will very quickly become a paradise for corrupt practices as those affected by the new regulations seek to navigate their way around it. Better to keep the legislation simple in application, compliance and interpretation in order for it to grow organically.

Nonetheless, it should now be apparent even to the most stubborn proverbial Ostrich that the third sector in Nigeria is going to be reformed and it is no longer tenable to have a collective burying of heads or keep shouting foul like an exuberant football supporter who blames the referee for all the shortcomings of his team. There is, here and now, an opportunity for civil society organisations to engage with this bill in an adult, altruistic and practical way for the benefit of beneficiaries from whatever sector who should, after all, be at the heart of all consideration on the issue of reform in the sector. It is my hope that they will take it and actively work with legislators in giving us a bill that is fit for purpose for the regulation of the third sector.