This discussion centres on the illegality or otherwise, of the use of delegates in the election of national leaderships of political parties and other associations in Nigeria. During the elections of the state and national leaderships of political parties, delegates are sent to the state capitals and Abuja respectively for such elections. In addition, associations like the Nigerian Association of Resident Doctors, are also known to use delegates in the election of their national leaderships. This delegate improvisation is usually captured in the Bylaws of the affected associations. While political parties are associations, their operations appear to be more regulated by the electoral laws than the Companies and Allied Matters Act (CAMA).
The contention of the author of this article is that this practice of enshrining delegates-voting processes and procedures in the bylaws of associations is unconstitutional, contravening the CAMA and thus illegal. The use of delegates in the elections into the state or national leaderships of residency associations and other forms of associations, particularly the political parties, runs counter to the provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended.
The legal basis for the formation of an association in Nigeria has a tap root in the Constitution of Nigeria at its sections 40 and 45. This simply means that formation of associations is a constitutional matter, as well as a fundamental right of all Nigerians. Unlike companies and incorporations that are dependent on a statute made pursuant to the provisions of the Constitution of Nigeria, associations are not formed pursuant to any other statute than the Constitution of Nigeria itself. This means that the formation of associations has a more constitutional affinity and consanguinity than the formation of companies. However, the CAMA was enacted to guide the formation of associations especially incorporated associations.
The association takes its constitutional root from sections 1, 40 and 45 of the Constitution of the Federal Republic of Nigeria 1999 as amended:
1(1). This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria..... (3). If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
40. 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.....
45. (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons....
The incorporation of companies takes its root from a totally different part of the Nigerian Constitution which is Item 32 of the Part 1 to the 2nd Schedule of the Nigerian Constitution which gave rise to the Companies and Allied Matters Act of Nigeria 1990 (CAMA 2004):
Item 32. Incorporation, regulation and winding up of bodies corporate, other than co-operative societies, local government councils and bodies corporate established directly by any Law enacted by a House of Assembly of a State.
The important aspects of this discussion is that associations include political parties and trade unions. Associations can be formed by any person. Any person can also join an association already formed by other persons. There is no explicit constitutional guideline for the making of the bylaws for the formation or belonging to an association. However, the guidelines and scope of the bylaws for the preparation of the bylaws of the association can be gleaned from the wordings of the Constitution of Nigeria and section 600 of CAMA. The guidelines and scope are as follows:
1. Every person can form an association of persons
2. Every person can belong to an association already formed
3. The purpose of forming an association is for the protection of the interests of each member
4. The right to form or belong to associations can be derogated by a justifiable law made in a democratic society in the interest of defence, public safety, public order, public morality or public health
5. The right to form or belong to associations can be derogated by a justifiable law made in a democratic society for the purpose of protecting the rights and freedom of other persons
The reality is that an association can only exist based on a bylaw establishing it. These bylaws must comply with section 600 of the CAMA. In other words, no association can exist without a law or bylaw establishing it.
Furthermore, the vires of the actions and inactions of any association is limited to the provisions of the law or bylaw establishing the association. What this means is that associations can only act within the clear and implied provisions in their bylaw, or law if any. The officers of the association can only perform those acts clearly provided under their functions and nothing more. The process of doing things shall also be followed the way they are stipulated in the bylaws of the associations. If the bylaw says that it could only be amended at an Annual General Meeting, then, any amendment at the Ordinary General Meeting is ultra vires, null and void.
The contention in this article is that an association is not at liberty to enact every manner of provision in its bylaw. For instance, an association cannot validly make a bylaw that hands over the power to discipline any member to one officer of the association who may have hated that member with passion. Not only does this fall short of other provisions of the Nigerian Constitution, but also negates the provisions of sections 40 and 45 of the Constitution of Nigeria. The discipline of a member goes to the root of the purpose of forming an association which is for the protection of individual members interests. See section 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
There are fundamental matters that go to the root of the constitutional purpose for the formation or belonging to an association in Nigeria. Under the common law, an association has one tier of decision making process as well as legal representative. In Nigeria, an association basically has two tiers of administration, possibly derived from the provisions of the Companies and Allied Matters Act, as there is no general law on the formation of associations, especially the scope of authority given to individual members of an association, and the limit which these authorities could be taken away and invested in delegates different from the Executive Committee. The format for the formation of an association thus mimicks the Organograms of a company. But unlike a company, associations do not have proxy voting. Each member must participate in person.
Association bylaws would therefore create two organs of administration of an association namely the Executive Committee and the Congress Committee otherwise simply called Congress. The Congress Committee is the committee of the whole membership while the Executive Committee is the committee of mostly elected officers of the Association. The Congress elects the Executive Committee. The Executive Committee carries out the day to day running of the association as defined by the Congress and association bylaw, while the Congress and the association bylaws make and define the mechanics and policy of the Association.
Association bylaws must create good and mandatory opportunities for every member of the association to participate in the fundamental processes of the association for the association to be constitutional, and for the association to be said to exist for the interests of the members. These fundamental and basic rights of members can only be delegated to a proxy by the individual member if the association bylaw permits proxy participation. In contrast, this basic constitutional right cannot be abrogated using association byelaw. These fundamental matters include:
1. Membership of an association. Every member must be given the opportunity to belong or not belong to any association in Nigeria for him to be availed of the constitutional protection built into sections 40 and 45 of the Constitution of the Federal Republic of Nigeria as amended.
2. Election of leaders at all levels. The leadership of an association goes to the root of the constitutional purpose for the formation or belonging to an association in Nigeria. A person who is not afforded the opportunity to elect the leadership of the association he belongs to cannot be said to have been given the opportunity to protect his interests in an association.
3. General meetings. Every member of an association must be afforded the clear opportunity to participate in the general decision making process of an association he belongs to, for him to be able to protect his personal interests as provided in the Constitution of Nigeria. See sections 597-600 of CAMA 2004.
4. Appointment into congressional committees and trustees. Members of the Executive Committee can choose to form a small committee to aid them in the discharge of a constitutional duty as provided by the association bylaw. This is called an Executive Officers' committee. The entire congress can also constitute a committee (standing or ad-hoc) to aid in the discharge of a congressional duty as provided in the association bylaw. This type of committee is a congressional committee. Every member must be afforded the opportunity to nominate another member of the association for possible congressional appointment into any committees of the congress of any association he belongs. These committees include audit, trustees, disciplinary, electoral etc committees of the association. These committees go to the root purpose of the formation and belonging to an association that cannot be left in the hands of the Executive Committee.
In conclusion, it has been noted that some associations have, with the provisions of their bylaws, compulsorily removed from individual members those fundamentally-entitled constitutional contemplations of electing the members of their association's Executive Committees, and handed the powers to another set of middlemen called delegates, to do the election of the association leaders on behalf of the individual members. Some associations, like the Nigerian Association of Resident Doctors, even went further to abrogate the members' basic rights to participate in policy formulation for the association by handing over this power also to the delegates. These delegates are not only devoid of any obligations to vote in the direction approved by those whose interests they are presumed to represent at the association elections and general meetings, and whom they do not consult before embarking upon such delegated assignments, but are also a veritable source of distortion and impediment to free flow of information and reactions between the Congress and the Executive Committee. An association bylaw is not a subsidiary legislation, it is not a law. It is inferior to any law in Nigeria. Therefore, the use of an association bylaw to abrogate constitutional entitlement is obscene, to say the least. How could a member of an association protect his interests in an association he belongs to as secured in sections 40 and 45 of the Nigerian Constitution, if he cannot vote for and elect those that will lead his association, participate in the association's general meetings, or nominate members for appointment into congressional committees of the association! An association, without meticulous provisions for an opportunity for individual members to participate in the basic and fundamental matters of the association, is not only unconstitutional but is also obscene. An association created for the protection of the interests of the individual members cannot turn around to make provisions in its bylaw that divest the individual of all powers to protect those interests, by handing over the opportunity to protect the interests to a third party or attorney, who is not under any statutory obligations to act in line with the intents and purposes of the supposed donor of the power of attorney. While the association bylaw can provide for proxy participation of members, it cannot divest individual members opportunity to participate and invest that opportunity in a compulsory attorney that is not bound to act according to the dictates of the individual donors of the power of attorney.
Awkadigwe Fredrick Ikenna ©2018
awkadigweikenna@gmail.com
08039555380
No comments:
Post a Comment