Should that NGO Bill pass?

The ongoing debate over the desirability or otherwise of a new legislative framework for regulating non-governmental organizations in Nigeria brings to the fore, in my view, the need for a suitable code of corporate governance applicable to such bodies. An attempt to achieve this through the Not-For-Profit Organizations Governance Code 2016 ran into troubled waters […]

The ongoing debate over the desirability or otherwise of a new legislative framework for regulating non-governmental organizations in Nigeria brings to the fore, in my view, the need for a suitable code of corporate governance applicable to such bodies. An attempt to achieve this through the Not-For-Profit Organizations Governance Code 2016 ran into troubled waters and was hastily withdrawn by the Government in January this year. Unlike the present one, that effort was birthed by the Financial Reporting Council. Given that, by virtue of the Companies and Allied Matters Act (CAMA), another body, the Corporate Affairs Commission, exercises regulatory oversight over all NGOs – at least those that were incorporated under it – the question whether we need a new regime for regulating NGOs and Civil Society Organizations (CSOs) in the manner being mooted by the National Assembly is a valid one. Is the Assembly even competent to initiate the new Bill? Is the Bill motivated by good faith, or is it, as some critics have charged, entirely unconstitutional? What are its merits and demerits? Let’s investigate, but first ….

What are NGOs? 

Section 57 of the Bill defines an NGO as “a private voluntary grouping of individuals or associations not operated for profit or for other commercial purposes but which have organized themselves nationally or internationally for the promotion of social welfare, development, charity or research through mobilization of resources”. In essence, NGOs exist to create a better world by filling a social gap; by definition, they seek to achieve humane purposes. 

Who may regulate NGOs ?

This question is all-important for obvious reasons; if the National Assembly is incompetent, ab initio, to initate the Bill, there the matter dies. The answer, however, appears to depend on the status of the NGO in any given case. As previously stated, the National Assembly is only competent to regulate corporate bodies which are not co-operative societies or otherwise directly established by any law enacted by a State House of Assembly: Item 32 of the Exclusive Legislative List of the Constitution. This applies to virtually all NGOs and CSOs in Nigeria, as few, if any of them are co-operative societies or were established by State legislatures. That being the case, the related question of whether the Assembly should regulate them, either in terms of the proposed Bill or otherwise involves a value judgment which is obviously variable, as one man’s meat, it is said, is another’s poison. Before looking at the pros and cons of the Bill, it is worthwhile to ask . . . 

Why regulate NGOs at all? 

In other words, should NGOs be left as autonomous, self-governing and self-accounting entities, beholden only to their stakeholders and bound only by the law(s) under which they were originally registered – such as the Companies and Allied Matters Act (CAMA)? In this regard, even though the Corporate Governance Code for Not-For-Profit Organizations has been suspended, I agree with its position that the need for good corporate governance in NGOs is principally hinged on the volume of funding they attract. It is well-known that donors, both local and foreign, make significant donations directly to relevant NGOs in the hope that they would engender greater mission fulfillment, donor value and greater beneficiary satisfaction and trust than given by Governments. Such donations are made out of conviction, knowledge, philanthropy, need, deceit or ignorance. 

It must be said, however, that some governments, particularly in Africa, have taken undue local and international credit for commendable work done by NGOs using both local and foreign donor funds – yet, such governments are very skeptical of the real intention or mission of such donors.

Criticism of the Bill 

As expected, the most vociferous opponents of the Bill are the NGOs and CSOs themselves.  In a published reaction, about 54-odd NGOs operating in the country condemned it as “a grand scheme that will create a government apparatus with ungoverned discretion to determine whether an NGO exists or for how long it will operate based on the dominant political whims of the day.” They alleged further that the bill will “licence unconstitutional discrimination, violate Nigeria’s constitutional guarantees of freedom of association, assembly, speech and even freedom of conscience and religion”. 

Other critics have pointed at the Bill’s alleged “unchristian” or “anti-religion” slant and its proposal to subject NGOs to biennially renewable registration by a new body, the Non-Governmental Organizations Regulatory Commission. To the extent that the previous registration (or incorporation) of an NGO under CAMA confers it with perpetual succession, the argument goes, the proposal for biennial renewal of their registration is an indefensible misnomer, which flies in the face of perpetual succession. 

The Rebuttal 

Stung by such trenchant criticism, both the Speaker of the House of Representatives and it’s sponsor, Hon. Yakubu Dogara and Buba Jibril, respectively, have been at pains to stress that the bill is well-intended and does not possess any of the attributes which its critics allege. According to Mr. Speaker, the “principal objective of the bill is to inject transparency, accountability and prevent the subversion of national security . . . No one can or indeed should gag the operations of NGOs in Nigeria”. He asserted further that “Churches, mosques, esusu, market women associations as well as local quasi-financial institutions are not NGOs and thus the bill has nothing to do with their operations.” Mr. Dogara is a Christian, so, it would be curious for him to consciously work against his own faith.

For his part, the Bill’s sponsor, Hon Buba Jibril, claimed that “NGOs and CSOs solicit for funds from all over the world on behalf of Nigerians. . . they recruit expatriates to help run their activities with lots of abuses; some people registered NGOs and solicited for funds and disappeared …and some NGOs are used to fund the activities of terrorists and insurgents”.

Conclusion

The object of all legislation is to strike a balance between competing values and interests in a society. Those values and interests are as dynamic as society itself and – with the exception of security, law and order – they change and morph over time. 

In terms of corporate governance, an organization – any organization -exercises good governance when it subscribes to a system of checks and balances that ensures public interest is served. An accountable NGO, therefore, is one that is obliged to open its books and records to public scrutiny by regulators, stakeholders, beneficiaries and donors. See the suspended Not-For-Profit Organizations Governance Code 2016, page 7. 

The rights of freedom of association, speech, conscience and religion, which the Bill allegedly threatens are not absolute, as they can be derogated from in appropriate cases under the Constitution. Apart from this notable exception, I think that opponents of the Bill are not completely wrong; neither are its proponents. I believe that a workable solution to their common concerns of accountability and responsibility by NGOs is to amend the Companies and Allied Matters Act by enhancing the structural and institutional capacity of the Corporate Affairs Commission largely in terms of the proposed Bill, but dispensing with the requirement of renewable registration. Filing of annual returns should suffice. 

Sani wrote this piece from Abuja.