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CISLAC COMMENDS THE PRESIDENTS FOR SIGNING THE CAMA BILL ACT INTO LAW

CIVIL SOCIETY LEGISLATIVE ADVOCACY CENTRE (CISLAC) COMMENDS THE PRESIDENT FOR SIGNING THE COMPANIES AND ALLIED MATTERS ACT (REPEAL AND RE-ENACTMENT) 2020 INTO LAW

The Civil Society Legislative Advocacy Centre wants to use this medium to commend the Presidency for signing the Companies and Allied Matters (Repeal and Re-Enactment) Act 2020. This is a step in fulfilling the desired anti-corruption reform in Nigeria. This legislation has the potential to be one of the most significant laws in decades.

Important anti-corruption and business commitments made by the President and the Government at different occasions can finally be put in motion. Recall that since joining the Open Government Partnership movement and since making important public commitments in the 2016 Anti-Corruption Summit in London in 2016, beneficial ownership disclosure and a public register of companies is one of the most important but outstanding commitments still not fulfilled.

It is widely accepted that law enforcement and anti-corruption agencies fail to identify real owners profiting from strategic Nigerian-registered business entities active in the oil and gas sector, defence, construction and others. Leak after leak in Panama papers, Paradise documents and many local investigations have confirmed what Nigerian citizens have long suspected. Actions and identities are hidden behind obstructive and fake business ownerships to loot state resources and reduce contributions to the Nigerian tax base.

Until now, the absence of the enactment of the CAMA made it impossible to act on establishing a publicly available register of beneficial owners. Financing the Nigerian fight against corruption and poverty is sabotaged continuously by financial secrecy, which erodes national sovereignty. Instead of funding ourselves from taxing business activity, we borrow money abroad and bankroll our budgets at unfavourable and unsustainable terms.

With the provision regarding the Disclosure of persons with significant control in companies, CAMA introduces transparency provision with an obligation for entities to disclose capacity in which shares are held, either as a beneficial owner or as a nominee of an interested person. Furthermore, Restriction on Multiple Directorship in Public Companies prohibits a person from being a director in more than five public companies at a time.

If achieved, we will be able to edge closer to curbing discretionary practices that fuel corruption within the system. Let us recall that Nigeria loses an estimate of $17billion on illicit financial outflows through tax evasion, theft, laundering of corrupt proceeds and other crimes through companies with unclear ownership structures. When implemented, Nigerian treasury can profit from windfall of tax revenues and other revenues’ leakages. In the context of the shattered economy after the global pandemic, this instrument can single-handily help alleviating millions of Nigerians out of abject poverty.

CISLAC at different occasions called out both the Legislature and the Executive on the importance of this law, and we are thankful that we have it now. We want to extend our appreciation to the National assembly who speedily passed this law in the early days of the 9th assembly after suffering non-assent by the president in the 8th assembly. We also want to thank the media and concerned stakeholders who has at one time or the other received awareness from our engagement on this and joined the crusade for the actualization of this feat.

We urge governmental authorities to step up with establishing policies, tools and instruments, which will aid a speedy enactment of these provisions. It is important that this conduct is executed with political impartiality and professionalism. We commit that the civil society will monitor the implementation and will continue highlighting gaps and deficiencies. Sadly, we witness that many anti-corruption laws and policies are legally sound but are not complied with. This must not be the case for this legal provision! We will continue working with the National Assembly to ensure that proper civilian oversight and monitoring of this law is conducted.

With passing CAMA, we joined the elite club in Africa next to Botswana, Egypt, Ghana, Kenya, Mauritius, the Seychelles and Tunisia. Together with Nigeria, these countries introduced some kind of beneficial ownership-friendly legislation.

We want to specifically loud the effort of the Registrar General – Alhaji Garba Abubarkar who has un-relentingly worked hand-in-hand with us on this issue since his days as the Director of Compliance at CAC till date.

in Conclusion, WE urge the National Assembly to hasten their effort in other anti-corruption bills and present them to the President for his accent.

Signed

Auwal Ibrahim Musa

Executive Director

Civil Society Legislative Advocacy Centre

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ANALYSIS OF THE SB 384 

ANALYSIS OF THE SB 384 

SB 384: Companies and Allied Matters Act 1990 CAP C20 LFN 2004 (Amendment) Bill, 2017. Sponsored by Sen. Ovie Omo-Agege

 SUMMARY

Bill type: Senate Bill

Sponsored by: Sen. Ovie Omo-Agege

Explanatory memorandum: The Bill seeks to amend laws of the Federation of Nigeria 2004 and for the establishment of state Corporate Affairs Commission for registration of business names.

First Reading: 24/11/2016

Second Reading: 01/03/2017

Committee Referred To: Trade and Investment

Consolidated with: Consolidated with SB 355

Third Reading: 15/05/2018

Bill Status: Passed (Awaiting Presidential Assent)

 OVERVIEW

On Tuesday 15 May 2018, the Senate of the Federal Republic of Nigeria passed the Companies and Allied Matters Act, 1990 (CAP C20, LFN 2004) Repeal and Re-enactment Bill, 2018 (“the Bill”), following a recommendation of the Senate Committee on Trade and Investment (The Committee). The Bill consolidates the proposed amendments from two related bills: Companies and Allied Matters Act CAP C20 LFN 2004 (Amendment) Bill, 2016 and the Companies and Allied Matters Act CAP C20 LFN 2004 (Amendment) Bill, 2017.

The Bill has 860 sections which is an additional 247 sections to the Current CAMA with 613 sections and seeks to establish an efficient means of regulating businesses, minimize the compliance burden of small and medium enterprises (SMEs), improve transparency and accountability, enhance shareholder engagement and promote a friendly business climate in Nigeria.

 SECTIONAL ANALYSIS

  1. 8.3 of the Bill provides for e-incorporation to facilitate the automated reservation of business names which will result in a significant improvement in turnaround time for potential promoters of companies in Nigeria and improve the ease of registering new businesses. Other automated processes are provided for in Sections 176 and 177 which refer to electronic instruments for the transfer of shares. Section 182 also provides for a Certificate of transfer to include a certificate issued in electronic form.

By virtue of Section 18 (2) of the Bill, one person may form and incorporate a private company by complying with the requirements of the proposed CAMA in respect of private companies thus reducing entry barriers for SMEs. This provides a competitive Nigerian business regulatory environment that is consistent with other jurisdictions.

The Bill also seeks to discard Section 26 (5) of the CAMA which provides that “The memorandum of a company limited by guarantee shall not be registered without authority of the Attorney-General of the Federation”. This will materially reduce the timeline for the registration of companies limited by guarantee (LTD/GTEs).

S.120 of the Bill on provides for persons who hold nominal interest in a company on behalf of another, to disclose those beneficial interests.  Also any shareholder (other than the beneficial owner) who holds shares entitling him to 5% voting rights in company should provide particulars of the beneficial owner to the company within 7 days. The beneficial owner should also disclose whether persons interested in the same shares are parties to any agreement or arrangement relating to the exercise of any rights conferred by the holding of the shares. Upon this disclosure, the company is to, within 7 days, inscribe against the name of every member in the register of members the information received and at the filing of its next annual return, notify the Commission of that information. By implication if the company defaults, the company and every officer of the company shall be liable to such fines as the Commission may prescribe by regulation for every day during which the default continues.

  1. 131 to 133 of the Bill enables companies to reduce share capital without the need for a court order, while S.148 prohibits the issuance of irredeemable shares and S.175 expressly prohibits Bearer shares.

The Bill provides exemptions to small companies including the removal of mandatory requirement to hold Annual General Meetings –S. 238(1); not having to hold the AGMs in Nigeria and the option of holding them electronically- S.241 (2); reducing the regulatory burden of having a Company Secretary –S. 329 (1); removing the requirement for a company to have at least 2 directors and allows for single directorship for small companies S.272.

  1. 404 of the Bill prohibits improper influence on conduct of audit of the financial statements of that company for the purpose of rendering such financial statements misleading by imposing a penalty to be specified by the Commission in its regulations, thus enforcing transparency in auditing processes.

The Bill provides a redress mechanism through S. 843 which seeks the Establishment of the Administrative Proceedings Committee (“APC”). The main function of the APC is to provide the opportunity of being heard for persons alleged to have contravened the provisions of the proposed Act or regulations made thereunder; resolve disputes or grievances arising from the operations of this Act or its regulations; and impose administrative penalties for contravention of the provisions of this Act or its regulations in the settlement of matters before it.

The Bill makes provisions for Business Rescue Proceedings which is targeted at rehabilitating financially distressed companies. These provisions seek to create an effective insolvency regime in Nigeria and has a dual aim: to save viable businesses, and to ensure that non-viable businesses can quickly exit the market, allowing deployment of assets to more productive firms.

Pros

On beneficial ownership, the amendments are targeted to increase transparency and combat asset shielding and are particularly significant, since they may mandate the disclosure of beneficial interests in a company where such are held through nominal holders or in trust. The Bill by seeking the establishment of a BO register, conforms to the Financial Action Task Force (FATF) international standards, particularly Recommendations 24 and 25 which emphasize the need for countries to prioritize for redress risks associated with obscurity of ultimate beneficiaries of corporate entities; as well as fulfils the commitments of the President at the 2016 London Anti-Corruption Summit convened by the UK Government and the Open Government Partnership Initiative.

The Bill complements the key objective of the Presidential Enabling Business Environment Council in building an enabling business environment by attempting to address the extant difficulties faced by businesses (administrative bottlenecks, high compliance costs etc.) which will lead to a significant improvement in the country’s Ease of Doing Business rankings.

On the whole, the Bill promises to improve revenue mobilization by the government as business entities can now be more efficiently regulated.

 

Cons

In a bid to reduce compliance requirements for small companies, the provisions for exemption from independent statutory audits may create an avenue for unsavory practices particularly for companies that may have gap years in their financial history. Hopefully, the harmonized Bill will have safeguards in place to enable users of financial statements other than shareholders have access to relevant financial information of a company that apparently does not do business in a particular year[1].

With respect to financial assistance, The Bill included provisions permitting private companies to provide financial assistance for acquisition of its own shares upon meeting certain conditions.  These conditions include, non-reduction of net assets, or where reduced, such assistance should be financed out of distributable profits.  A special resolution of the shareholders and a declaration of the directors in a form to be prescribed by the CAC are also required to accompany such transaction. These provisions may be deemed aggressive and the harmonized version should include safeguards to ensure that minority shareholders and creditors are not shortchanged by aggressive structuring of transactions on the basis of the removal of this prohibition.  Most common law countries retain some kind of safety net in this respect, especially for private companies.

 

CONCLUSION

It is expected that the new Bill when enacted will ease the rigors of doing business in Nigeria thereby making investing in the country an attractive prospect to investors. This will have the effect of improving and strengthening the nation’s economy as the projected influx of new businesses will help it thrive and grow in bounds.

With the need to incorporate regulatory conditions which are modeled around international best practice, the Bill will indeed promote long-term investments and ensure that the Nigerian system of company law and corporate governance would be favorable to the emerging Nigeria.

Given its current status, the Bill should be assented to or rejected by the President, to allow its urgent re-introduction by the National Assembly. In the meantime, stand-alone frameworks like efforts by the Nigerian Extractive Industries Transparency Initiative (NEITI) and the Corporate Affairs Commission to establish registers for Beneficial ownership information in the oil and gas industry and the corporate sector, respectively, will serve as stop-gap measures to provide temporary succor to our bleeding economy.

By: Muna Ugochukwu

Reference

[1] https://home.kpmg/ng/en/home/insights/2018/11/Key-highlights-of-the-Companies-and-Allied-Matters-Act-Bill-2018.html

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CAMA, 2020: Corporate Accountability and Transparency

A Summary Review of the Companies and Allied Matters Act, 2020

Background

While legitimate corporate businesses have an integral role in national development, the involvement of Politically Exposed Persons (PEPs) who conceal corruptly acquired wealth through the complex networks of companies deliberately created to hide their identities has further increased the risks they pose to non-fortified economies. In 2019, the former Executive Chairman of the Federal Inland Revenue Service, Mr Tunde Fowler, said that Nigeria loses about $15bn (N5.37tn at N358/dollar) to tax evasion annually.

It is to this end that the imperative to establish a Beneficial Ownership (BO) register as contextualized in its contemporary form by the Financial Action Task Force (FATF) which stresses the establishment of a publicly accessible central register for warehousing personal information of natural persons that own, control and benefit from corporate entities, was predicated.

The Nigerian government had expressed its commitment to this end at the London Anti-Corruption Summit in May 2016 to strengthen anti-corruption reforms, one of which was the Companies and Allied Matters Act (CAMA) Bill, which contained explicit provisions for the establishment and functioning of the Beneficial Ownership (BO) Registry.

Overview

The bill which had been signed by both legislative Houses of the 8th and 9th Assemblies, was finally granted assent by the President on Friday the 7th of August, 2020. The CAMA repeals and replaces the extant Companies and Allied Matters Act, 1990 and has been touted as the most significant business legislation in the last three decades, particularly as it introduces several corporate legal innovations aimed at enhancing ease of doing business in the country.

While the innovations to ease business have been reviewed quite exhaustively, the legislative document has not received its due credit on its key contributory role to corporate accountability and private sector governance, which it owes largely to the transparency clause requiring the disclosure of persons with significant control of companies in a register of beneficial owners. By extension, this provision which portends the efficient regulation of business entities, complements efforts towards greatly improving domestic resource revenue in its potential to address the curbing of illicit financial outflows, which costs the country around 17 billion US dollars ($17bn), annually to Nigerian and international companies operating within the Nigerian jurisdiction.

Prior to the Presidential assent, the issues around digitalization and funding of the register have been largely addressed by the CAC in conjunction with the OGP secretariat and the World Bank, through a multi-donor grant for the development of an electronic register and documentation and there are presently:

  • Ongoing upgrades of IT infrastructure to accommodate register with an in-house committee already set up to design a workflow.
  • Ongoing engagements with relevant stakeholders to enlighten them on the benefits of the disclosure regime in line with the OGP commitments.
  • Adoption of UK principles of disclosure, with the national threshold for disclosure set at 5% as opposed to the UK’s 25%.

Way forward

It is however worthy to note that this tool- the BO register, is not an end in itself but a means to an end as the law is not enough to guarantee compliance. To this end, three key endeavours are required, viz:

Inclusion

There needs to be inclusion by engaging key stakeholders and emphasizing gains and by providing ease of compliance. The integration process commenced two years ago by the Open Government Partnership in Nigeria, between the Corporate Affairs Commission (CAC) and Anti-corruption Agencies (ACAs), Bureau of Public Procurement (BPP), organized private sector (OPS) and other open contract and procurement-saddled institutions, somewhat guarantees the sustenance of the commitment. Also, while a large section of the organized private sector (OPS) is in support of this transparency and accountability drive, others have raised cogent concerns over information rights for public disclosure posing security concerns. This can however be addressed in process implementation by regulators (CAC) who have guaranteed secure accessibility to certain information.

Value re-orientation

The realization that both the government and the private sector must contribute their quota towards building Nigeria’s economy and drive development is now mainstream and progressive governments globally are designing policies and roadmaps to this end. It is necessary to note that the register will provide both checks and benefits to companies and the mentality that its establishment will benefit the country to the detriment of the OPS and multi-national enterprises (MNEs) should be eschewed. A true ecosystem of open governance must include open collaborative processes and it is imperative that even without a law, private sector operators like the OPS and CSOs should impose on their corporate governance structures, the principles, processes and values that make disclosure a default action and advocacy must be sustained for the paradigm shift for self-regulation by the OPS and CSOs to this effect.

Verification

With the establishment of the register, there is a new challenge as existing rules emphasize the need for accurate, reliable and up-to-date beneficial ownership information. According to a 2018 study on how well G20 and guest countries are implementing the G20 High Level Principles on Beneficial Ownership, no governments that collect beneficial ownership information, verify it[1]. However, a paper published by the Tax Justice Network (TJN) proposed a way of checking the validity of data provided: an information technology system combined with advanced analytics to identify red flags.

The verification process involves ensuring that people in the official register are who they say they are (authentication), that those persons have agreed to be involved in a legal entity (authorization), and that all the registered data is valid (for example, the address exists and the purpose of the company is accurate). It also involves checks after the legal entity is set up to ensure information is up-to-date and to identify potential red flags. It proposes a verification process that is fully automated information technology system with human supervision with access to relevant data, held by national and foreign authorities for cross-checking and advanced analysis.

The process could be managed by the beneficial ownership or company register, or another public body that has experience with data analytics, such as financial intelligence units or tax authorities and the responsible body needs to be adequately resourced and empowered to conduct such checks.

Adapted from “Beneficial ownership verification: ensuring the truthfulness and accuracy of registered ownership information”, Tax Justice Network and that all the registered data is valid (for example, the address exists and the purpose of the company is accurate). It also involves checks after the legal entity is set up to ensure information is up-to-date and to identify potential red flags. It proposes a verification process that is fully automated information technology system with human supervision with access to relevant data, held by national and foreign authorities for cross-checking and advanced analysis.

The process could be managed by the beneficial ownership or company register, or another public body that has experience with data analytics, such as financial intelligence units or tax authorities and the responsible body needs to be adequately resourced and empowered to conduct such checks.

Adapted from “Beneficial ownership verification: ensuring the truthfulness and accuracy of registered ownership information”, Tax Justice Network

Reference

[1] https://voices.transparency.org/verifying-the-beneficial-owner-of-companies-why-and-how-d6e24bd9f99f

By Munachi Ugochuku