Legal Nigeria

Should govt regulate churches, mosques

Pastor Enoch Adeboye’s exit as General Overseer (G.O) of the Redeemed Christian Church of God (RCCG), Nigeria, shook the country. Barely 48 hours after his action, the government suspended the Corporate Governance Code, which forced him to step down. The code stipulates a 20-year tenure or a 70-year age limit for heads of not-for-profit organisations, such as churches and mosques. The government also fired the Financial Reporting Council of Nigeria (FRC) Executive Secretary, Jim Obazee, who insisted on the code’s implementation. Should religious organisations be regulated? Should government determine their leaders’ tenure? JOSEPH JIBUEZE sought lawyers’ views.Pastor Enoch Adeboye does things methodically. For long, he has been telling his vast Redeemed Christian Church of God (RCCG) family that his successor was still in the world, which is euphemism for a non-believer. But last January 7, he shocked the world when he stepped down as General Overseer (GO), RCCG, Nigeria, and named Pastor Joshua Obayemi as the church’s overseer for Nigeria.His decision led to a chain of reactions. The christian world rose against the Code of Corporate Governance which forced him to step down. The Federal Government suspended the code, which stipulated a 20-year tenure or 70-year age limit for heads of not-for-profit organisations, such as churches and mosques. It also fired the Financial Reporting Council of Nigeria (FRC) Executive Secretary, Jim Obazee, who insisted on the code’s implementation.Pastor Adeboye, who turns 75 on March 2 and had spent over 20 years as RCCG’s G.O, reportedly said his exit was informed by the code’s provision. He said he was handing over the church affairs in Nigeria to Obayemi, while he remains the worldwide overseer of the church.A statement by the Senior Special Assistant on Media and Publicity, Garba Shehu, announced Obazee’s removal and the reconstitution of the FRC board consisting of Mr Adedotun Sulaiman as Chairman and Mr. Daniel Asapokhai as Executive Secretary.

In suspending the code, the Minister of Industry, Trade and Investment, Okechukwu Enelamah, said it had not received final approval.

A statement by the Strategic Communication Adviser to the Minister, Constance Ikokwu, said: “The corporate governance code remains suspended until a detailed review, extensive consultation with stakeholders and reconstitution of the board of FRC is done.“The government remains committed to restoring and enhancing market confidence and improving the Ease of Doing Business in Nigeria. Government is also committed to strengthening FRC and enhancing its capacity to fulfill its core mandate.”Hailing Obazee’s removal, CAN’s General Secretary Rev. Musa Asake said: “The sack of Jim (Obazee) is good. Anybody that wants to fight the church will find himself where he does not want.“Thank God the authorities have stepped in to right the wrong. He should have been fired a long time ago and we don’t know why he was left alone, but God’s time is always the best.”While announcing a new Overseer for the RCCG in Nigeria, Pastor Adeboye was said to have hinted that the heads of some Pentecostal churches may be affected by the FRC tenure rule.Some of them are General Superintendent of the Deeper Christian Life Ministry William Kumuyi (1973), founder and presiding Bishop of Living Faith Church Worldwide David Oyedepo (since May 1981), Presiding Bishop of The Redeemed Evangelical Mission Mike Okonkwo (since 1981), founding and Senior Pastor of Word of Life Bible Church Ayodele Oritsejafor (since early 80s).

It was learnt thasaidazee might have been removed for allegedly disobeying Enelamah’s directive that the regulation be suspended.Reports said Obazee refused to suspend the regulation because there was no gazette shelving its execution.‘Adeboye remains RCCG head’RCCG has said it was not amending its constitution to reflect any leadership changes. Its Head of Media and Public Relations, Pastor Segun Adegbiji, debunked a report that there was an ongoing constitution amendment from its governing council.

He said: “Yes, we do have a constitution. The Governing Council has the liberty and power to amend it if it so wishes. But I didn’t say they were amending it. We are not amending the constitution on structure.”Last Thursday, the church said Adeboye remained RCCG’s General Overseer, despite Obayemi’s appointment as National Overseer of RCCG Nigeria.Adegbiji explained that Adeboye, fondly called ‘Daddy G. O.’, remained the head of the RCCG, and Obayemi, like other National or Country Overseers around the world, reports to the G. O.He said: “That decision does not in any way affect his position as the General Overseer of the RCCG.”The spokesman said the appointment became necessary partly because of the RCCG’s rapid growth and expansion, adding that the plan for a national or country overseer for RCCG Nigeria began before the Financial Reporting Council (FRC) implemented its now suspended Corporate Governance Code.Adegbiji had also confirmed that Obazee was once a School of Disciples teacher and pastor at the church.Obazee had said only 89 of the 23,216 registered churches in the country had complied with FRC provisions.Lawmakers weigh in The House of Representatives has ordered a “detailed” public hearing on FRC’s activities, particularly its decision to fix the tenure of the leadership of religious organisations.The House passed the resolution last Wednesday after members debated and endorsed a motion moved by the Minority Leader Leo Ogor.According to the lawmakers, no Federal Government agency was empowered by any law passed by the National Assembly to determine how many years a religious leader should serve in office.“No law, enacted by the National Assembly, empowers any agency to set the tenure of office for heads of non-profit organisations,” Ogor said.Code’s provisions Before it was suspended, the National Code of Corporate Governance 2016 took effect last October 17. It was issued in accordance with Section 50 of the Financial Reporting Council of Nigeria Act, 2011, which among other things requires the Directorate of Corporate Governance to develop the principles and practices of Corporate Governance applicable in Nigeria.The code is in three parts. The first is the Code of Corporate Governance for the Private Sector, which is described as “mandatory”. The second, which created the controversy, the Code of Governance for Not-for-Profit organisations (NFPOs), which has a proviso: “Comply or Justify non-compliance”. The third is the Code of Governance for the Public Sector.Code of Governance for NFPOs has eight parts: A-H. The code has provisions for organisational structure of such entities, position of the founder, financial statements, organisation’s assets.According to FRC, the Code was developed due to “the perceived challenges to good corporate governance practices in the not- for-profit sector of the Nigerian environment.”It defines NFPOs as “a transparent decision-making process in which the leadership of a non-profit organisation, in an effective and accountable way, directs  resources and exercises power on the basis of shared values”.It says NFPOs take the form of “non-governmental organisations, charities, charitable trusts, foundations, public benefit corporations, mutual benefit corporations, co-operative trusts, educational, religious, moral organisations and corporations.”Justifying the need for Corporate Governance in NFPOs, FRC said: “The need for corporate governance in NFPOs is hinged on good governance and orderly succession in view of the volume of funding they attract. Urged on by humanitarian concerns over either glaring poverty and neglect, or economic  mismanagement of some countries, donors have made significant donations directly to relevant NFPOs in the hope that they would engender greater mission fulfillment, donor value, and greater beneficiary satisfaction and trust than those given by governments.“Apart from foreign donors, domestic donors out of conviction, knowledge, philanthropy, need, deceit or ignorance contribute large sums of money to NFPOs.“Many NFPOs operate with unknown frameworks, but with governments completely in the dark as to both their ownership and principal accountability. In the context of current global insurgency, the operations and funding of NFPOs raise serious security concerns, hence the need for good governance of NFPOs in the country.”The Code discusses the position of the founder or leader of an NFPO. Section 9.1 states: “A Founder or Leader should not take on too many responsibilities in the organisation or have an indefinite term in the running of the organisation.” The 20-year leadership limit Section 9.2 states: “Where for any reason, a Founder or Leader of NFPO also occupies any of the three governance positions of Chairmanship of the Board of Trustees, the Governing Board or Council, and the Headship of the Executive Management (or their governance equivalents), the following provisions shall apply before the end of the organisation’s financial year in which this Code takes effect:“9.2.1. The Founder or Leader shall cease to occupy these three governance positions simultaneously. This is to ensure the separation of powers and avoid possible concentration of powers in one individual.”“9.2.2. The Founder or Leader may however choose – subject to the agreement of the organisation’s apex authority as expressed in the Annual General Assembly, Annual Meeting, Annual Stakeholder Engagement, Annual Conference, Annual Synod, Annual Fellowship Assembly or their equivalents – only one of these three governance positions subject to his current tenure.“This is to ensure a clear division of responsibilities at the head of the organisation between the running of the governing body and the executive responsibility for the management and fulfilment of the organisation’s mission.“9.3. Where the Founder or Leader has occupied all or any of these three governance positions  for more than twenty years, or is aged seventy years or above, the choice in section 9.2.2 above should only relate to the Board of Trustees as in section 9.4(c) below, except the constitution of the organisation otherwise provides.”Section 9.4.c states: “Conflicts with founders or leaders should therefore be addressed by: (c) considering and ensuring Founder’s or Leader’s continued advisory or spiritual role by creating a Board of Trustees (BOT) for which the original Founder or Leader can become the First or Life Chair…”The caveat A caveat in Section 9.3 states: “In the case of religious or cultural organisations, nothing in this code is intended to change the spiritual leadership and responsibilities of Founders, General Overseers, Pastors, Imams and Muslim Clerics, Presidents, Bishops, Apostles, Prophets, etc. which are distinguishable from purely corporate governance and management responsibilities and accountabilities of the entities.”Analysts say the code allows founders or leaders of faith to have lifetime spiritual roles.Anything wrong with Code? Several analysts faulted the code for seeking to regulate the tenure of the leadership of religious organisations. To such analysts, the code should have stopped at its demands for transparency and accountability in the handling of its resources using accounting standards.A renown lawyer, Dr Sam Amadi, said despite the shortcomings of pentecostal churches whose activities ought to be regulated, FRC’s regulatory intervention was wrongly conceived and implemented.He said: “The corporate governance code as it relates to leadership succession in not-for-profit organisations is a regulatory misstep period. It shows how much we need to learn about the administrative state. The code erred in addressing the wrong issue and addressing it wrong way.”The code, he said, is an example of administrative regulation. He said it sources its legality from the powers the National Assembly grants the FRC to regulate the financial transactions of organisations in Nigeria.Such codes, he said, would be invalid if they violate the constitution. “The focus of the code is more on governance system or structure of not-for-profit organisations. When the executive or agencies in the executive branch of government take actions to execute the law through subsidiary legislation or other forms of legislative interventions, they must ensure that they do not violate any part of the constitution or enabling legislation or impose duties that are not within the ambit of the authorising law.”Amadi said administrative rulemaking ought to be focused on solving a legitimate problem that has public interest impact.“The code rambled so much about the mission and vision of Not-for-Profit Organisations and at times talked about strategies to cajole founders and leaders of churches to accept their replacement.“The question for administrative rulemaking is whether intervention will address any manifest public interest. In this case, what is the public interest in enforcing tenure for voluntary associations?“What legitimate public interests is served by stimulating how non-profits elect their leadership? Focusing on these issues is an illegitimate exercise of executive powers,” Amadi said.Amadi said every exercise of legislative power, whether by a legislature or an administrative agency, must comply with the constitution to be valid. Thus, the primary test of validity is compliance with the fundamental rights which are guaranteed.“The constitutional principle, established in many cases by Nigerian courts and courts in other democracies, is that before the state can interfere with these rights it must establish an overriding public interest. This is an interest that would be severely undermined but for such interference.“Section 40 of the Constitution guarantees to every person in Nigeria the right to associate freely with others in pursuit of lawful personal interests. By the language of the constitution, apart from political parties that require the recognition of the electoral management body, there is no constitutional restriction to the right of association.“Any regulatory intervention that would encroach on the right of free association must be justified on the basis of an overriding public interest. This is the canon of constitutional law in a written constitution with a guarantee of fundamental rights. It is the protection of substantive due process.“The guarantee of the right to freedom of association means that the government is restrained from interfering with this right except it shows that there is a threat to security, defence or public health or other. This restriction applies to both the exercise of legislative, executive or judicial power.“Neither the legislature, the executive or judiciary can make rules or orders to abridge the exercise of these rights without making out a clear case of overriding threat and danger to public interests. This is the essence of the heroics of the Supreme Court in many cases stating that any exercise of executive or legislative action against these guaranteed rights is unconstitutional.”Amadi believes the Code for NFPOs may be well intentioned, but is “bad and dangerous”.“It is bad because it violates the principles of administrative rulemaking by exceeding the powers granted to the Council by the legislature by being so imprecise and vague that it could not be a valid exercise of delegated legislation.“The code is dangerous because it attempts to abridge the right to free association without any compelling government interests or threat to national security, defence, public safety and public order. Therefore, it is an unlawful regulatory intervention,” he said.A public commentator, Ebuka Nwankwo, noted that most churches and mosques are registered with Corporate Affairs Commission (CAC) as Incorporated Trustees in Nigeria, just as NGOs are.Thus, assets of churches are placed under the trust and confidence of their Trustees. And unlike a shareholder, a Trustee is not supposed to earn a profit, but expected to promote the objective of such organisation.Nwankwo said a corporation status is conferred on Trustees, who could be sued instead of the church or mosque. With this status, churches can go into businesses, such as running schools and hospitals, as far as they are not for profit.“The FRC, just like the Charity Commission in the UK, intends to use codes of conduct to ensure that leaders and founders of churches do not became dictators in their organisations.“One reason propounded for government involvement in regulating not-for-profit organisations is this: Organisations and individuals who enjoy tax exemptions should be prevented from using their offices to attain excessive benefits for themselves and their families.“Ordinarily, religious organisation are expected to be ethical but in some cases they have fallen short. Sadly, government – which ought to take examples from these organisations and could overstep its bounds – becomes the only institution left to ensure probity.“And here is the lesson in all these: In order to minimise the interference of government in religious organisations, faith-based organisation should come back to the basics, which is nothing but selfless and genuine commitment to the teachings of their faiths,” Nwankwo said.Lawyers speak To lawyers, there is nothing wrong in regulating religious organisations. Second Vice President of the Nigerian Bar Association (NBA), Monday Ubani, said churches and mosques were registrable under Part C of the Companies and Allied Matters Act of 1990 and, therefore, subject to regulation by the laws of the  land.According to him, there is nobody or institution in any given state that cannot be subject to the laws of that state as there cannot be two sovereigns in a state.Ubani said laws must recognise individual and institutional rights and must respect them to avoid backlash including outright rejection and disobedience by the people.Such laws, he added, must respect internal regulatory laws that govern institutions and bodies as long as those internal laws do not offend the constitution or other general laws that are not meddlesome.Ubani added: “The Federal Government has the power to regulate charitable organisations and NGOs as long as they are registered under the laws of the country. As long as the charitable organisations which are non-profit have delved into profit making ventures, then they have made themselves liable to scrutiny and accountability which is the hallmark of organisations that have custody of public funds.“Therefore, churches, mosques and NGOs that have delved into commercial ventures should have their accounts scrutinised including submitting them to the government.“The government can also request them to pay tax on profits made from the commercial transactions. It is logical and makes a lot of economic sense, no sentiment attached.”However, Ubani believes the government has little right to regulate the tenure of the organisations’ leaders.“It is clearly not the government’s business. As I said earlier, these organisations have their internal constitutions and bye-laws with which they were registered in the first place. Since these internal laws of these organisations contain succession plans, it does not lie in the mouth of the government through any Code or whatever name called to begin to peg the tenures of the leaders of these organisations. It is pure meddlesomeness and overreaching of state powers.“Let us be logical here, can one remove someone whom he or she has not appointed? Headship of churches, mosques are divine calling and the government cannot pretend to say that they were there when the individuals were called, and so, upon what basis does it arrogate to itself the power to truncate any person’s tenure whom they have not called?” Ubani asked.The former Ikeja Branch chairman of NBA said the Code’s section on leadership tenure should be amended.“My humble submission is that the said Code dished out by the FRC should be reviewed and the offending portion that prescribes tenure for churches, mosques be removed to avoid unnecessary tension and misunderstanding in the country.“The country is experiencing enough tension. Any further creation of tension now shows lack of wisdom. That is not the best way to go,” Ubani said.A constitutional lawyer Ike ofuokwu said government should focus on good governance without regulating the tenure of leaders of organisations it did not appoint.“The truth is that government wants to dabble into all and sundry matters at the expense of its primary function of governance.“Why are we a secular nation and yet we are so focused on forex for pilgrims and the like? It is not in the place of government to regulate tenure of people it has not appointed in the first place.“If we were not there when God called them, how then can we regulate their tenure? God can even call you at the age of 70 and in that case do we advise such pastors to reject the call of God?“The Federal Government should apply caution in future so as not to polarise this country further along religious lines,” Ofuokwu said.Lagos lawyer Ahmed Adetola-Kazeem believes there should be limited regulation of religious organisations.“By this I mean that the finances of religious organisations should be made public for the benefit of the members whose funds are used in running them and for the benefit of government as regulators.“This will ensure accountability and protection of innocent citizens and congregants seeking salvation from being fleeced of their hard-earned money.“However, the religious organisations should be allowed to determine the duration of office of their spiritual heads in order not to unduly politicise places of worship.“I agree that the spiritual, administrative and financial authority should not be concentrated in an individual to ensure checks and balances,” Adetola-Kazeem said.The Nation