Legal-Notes-December-20141

ALN is an alliance of independent top-tier African law firms.
BOTSWANA | BURUNDI | ETHIOPIA | KENYA | MALAWI | MAURITIUS | NIGERIA | RWANDA | SUDAN | TANZANIA | UGANDA | ZAMBIA
VOLUME NO 13 | ISSUE 2 | december 2014
Inside this Issue
The Afro Silk Road
Reflections on Middle East and Asia investment into Africa
Agency Arrangements
Working around local ownership requirements in the UAE
Re-introduction of Capital Gains Tax in Kenya
Effects and challenges
Chasing Dirty Money
Combating money laundering in Uganda
Eyes on the Money
Mauritius improves its image as an international financial centre
Guest Column
Insights from Mr. Dhrolia on investment from the UAE to Africa
and so much more...

A
ccording to the African Economic Outlook 2014 report, Africa maintained an average growth rate of approximately 4% in 2013.
This compares to 3% for the global economy and underscores the continent’s resilience to global and regional headwinds.
This reminds us at ALN that we are at the right place at the right time.
We feel that our direction as an alliance of independent top-tier firms accurately reflects Africa’s position as the new go-to continent.
Trends, such as the discoveries of natural resources; the reduction of energy & infrastructure gaps and the increase of expendable
finances, continues to intensify the world’s focus on Africa. We feel confident that our experience can guide investors in these core
development sectors. To this end, ALN is organised into 3 sector groups designed to offer tailor-made and intergrated services that
are involved in cross border work: Energy & Infrastructure, Financial Services and Natural Resources.
In addition, we have increased our efforts around our ALN Academy, a particular passion of mine. We are working to not only build the
capacity of our lawyers, but other African lawyers. This is in recognition of our obligation as an organisation to give back to the continent.
Indeed, it is time for Africa and time for African lawyers to take their place in shaping the continent’s destiny.
At ALN, we believe that our promise of exceptional service should not be extended to our existing clients but to all stakeholders who
interact with us. Through Legal Notes, we hope to show that we not only have the expertise in the sectors we straddle but that we also
possess a great will to play a part in Africa’s strong and prosperous change. We hope that you will enjoy this issue and, like us, get revved
up and informed on the hot topics on the continent.
Best regards,
Dr. Cheick Modibo Diarra
ALN Chairman
cmd@africalegalnetwork.com
A word from the Chairman
33
Anjarwalla & Khanna is the largest
corporate law firm in Eastern Africa. The
firm is ranked first in Kenya by various
legal guides, including Chambers Global,
IFLR 1000, Legal 500, PLC Which Lawyer
and Euromoney Guide to the World’s
Leading Project Finance Lawyers.
Introduction
Kenya has seen a significant rise in infrastructure developments in the recent past, especially in the fields of real
estate development, energy and transportation infrastructure. This has been caused by various factors including a
demand for housing by the rising population, infrastructure demands caused by growing investor interest in the
country and the Government’s Vision 2030 development blue print, whose aim is to achieve industrialization by
the year 2030.
Putting together an infrastructure project, be it skyscrapers, roads, power projects or a real estate development
involves amalgamating several constituent elements. An integral ingredient to any project is the construction
contract which sets out the terms and conditions pertaining to the carrying out of the main building works in
respect of the project.A well drafted contract that is clear on the terms could have a significant effect on the cost,
timing and completion of the project.
What should a project contract provide for?
The key concerns for most developers of a project are as follows:
• ensuring that works are completed in accordance with the construction programme for the project;
• ensuring that the works are completed within budget;
• where projects are to be financed, ensuring that the risk allocations in the various project contracts will be
acceptable to potential lenders and financiers; and
Undertaking infrastructure projects in Kenya:
Get the contract right!
Aleem Tharani IAnjarwalla & Khanna I at@africalegalnetwork.com
KENYA
This is the time for Africa!

LegalNotes 1
Welcome
Since our last issue, we are proud to report that there have
been several exciting developments at ALN. For one, ALN is now
coordinating cross-border groups, focused around 3 industry
sectors: Energy and Infrastructure, Financial Services and Natural
Resources. These sector groups are designed to offer tailor-
made and integrated services to businesses that are involved
in cross-border work.
In addition, this year we covered the globe far and wide. In May,
we sent a delegation to attend a high-profile Africa-focused
seminar in Moscow, where we met clients such as EFESk, GPB,
ALROSA, and Renaissance Capital among others. From Eastern
Europe, we set our sights on the Far East and participated in
this year’s Africa Infrastructure & Power Forum which was held
in Beijing. Still in China, some of our lawyers attended the STEP
Conference and the China Offshore Summit in Shanghai in
October. Across the Atlantic; we visited New York and Washington
DC where we built ties with individuals who, like us, are doing
exciting things on the Continent. Finally, much closer to home
we are proud to have been part of the Africa Legal Support
Facility’s High Level meeting which was held in Kigali, Rwanda
as part of AfDB’s 2014 Annual Meeting.
We are also proud to say that we have grown; we now have
member firms and affiliates in 15 African cities, and boast of
a team of 600 lawyers, all part of our commitment to connect
you with the right lawyers in the right locations. We have also
expanded our management team and we have now 7 dedicated
professionals coordinating the network’s operations. Furthermore,
through our ALN Academy, we continue to develop the capacity
of our lawyers. To maximize our lawyers’ exposure and practical
legal experience in 2014 alone, we organised 11 secondments
to top London firms as well as 3 Intra – ALN secondments to
our offices in Kenya, South Africa and Dubai.
As we welcome you to this issue, we are excited to share with
you the insights we have gathered along the way, especially on
the topics investors should be cognisant of as they operate on
this great Continent.
Dr. Michael H. Gera
ALN Chief Executive Officer
mg@africalegalnetwork.com
The Orient Express: Next Stop – Africa
Africa is such an exciting place to be in right now, and we are
both humbled and proud to be a part of it!
We have all heard the story of Africa’s rise. The Continent’s GDP
growth is projected to rise above the 5% per annum mark. It is
estimated that by 2020 more than half of African households will
have enough income to splurge on non-essentials, and in 3
decades, Africa will have a larger working population than China.
Africa has attracted investor interest from the East and the
West alike, but it is perhaps the aggressive courtship from Asia and
the Middle East that has got people taking notice. Despite, or
perhaps, because of Africa increasingly looking East, there has
been renewed interest by Western nations in Africa. 2014 for
instance, has witnessed a series of US-Africa summits and
visiting investment delegations led by the Lord Mayor of London.
The US Government also announced plans for American
companies to invest USD 14 billion in Africa.
In this Edition of Legal Notes, we feature a special supplement on
investment from the Middle East and Asia, with insight from senior
ALN Partners and an interview with Mr. Alnoor Dhrolia whose
investments cut across the UAE and Africa. Mauritius and the UAE
continue to cement their position as preferred off-shore investment
launching pads into Africa, while Nigeria, Kenya and South Africa
continue to develop as on-shore gateways into the Continent.
We also discuss interesting recent legal developments and how
they impact you. From Kenya, we update you on developments in
tax regime and look at the challenges faced from the oil & gas
discoveries including maritime disputes with Somalia. Uganda
features discussions on the new insolvency and anti-money
laundering laws and we discuss environmental issues in Zambia
and South Africa, amongst many more interesting articles!
As always, I hope that you will find this Edition insightful, as
you ponder on your next investment destination.
Anne Kiunuhe
Editor
Partner, Anjarwalla & Khanna
ak@africalegalnetwork.com
33
Introduction
the year 2030.
• ensuring that the works are fit for purposes.
KENYA

2 LegalNotes
Contents
This publication is designed to inform readers of legal issues in various African jurisdictions.
The contents of this newsletter are intended to be of general use only and should not be relied upon without seeking
specific advice on any matter. If you would like to subscribe to Legal Notes or any other ALN publication, visit
www.africalegalnetwork.com. For further information on Legal Notes, contact legalnotes@africalegalnetwork.com
Editorial Team: Anne Kiunuhe - ak@africalegalnetwork.com | Elizabeth Karanja - ewk@jmilesarbitration.com |
Olivia Kiratu - onk@africalegalnetwork.com | Patricia Fokuo - pf@africalegalnetwork.com
The Afro Silk Road
Reflections on Middle East and Asia investment into Africa...................................................................................................................................................................................3
Chasing Dirty Money
Combating money laundering in Uganda...............................................................................................................................................................................................................6
The Green Revolution
New environmental laws in Zambia.........................................................................................................................................................................................................................8
Guest Column
Insights from Mr. Dhrolia on investment from the UAE to Africa...........................................................................................................................................................................9
New JSE Listing
requirements in South Africa...........................................................................................................................................................................................................................10
Naira for Senior Citizens
Reforms in Nigeria’s Pension Law..........................................................................................................................................................................................................................12
Effects and Challenges...........................................................................................................................................................................................................................................14
Eyes on the Money
Mauritius improves its image as an international financial centre........................................................................................................................................................................16
Parting the Seas
Kenya’s maritime dispute with Somalia.................................................................................................................................................................................................................18
Rethinking the Hastings-Bass Rule
The final curtain for trustee liability avoidance in Mauritius?.........................................................................................................................................................................20
Agency Arrangements
Working around local ownership requirements in the UAE................................................................................................................................................................................22
Whistle Blower Protection
under environmental and employment law in South Africa................................................................................................................................................................................24
Insolvency in Uganda
The growing pains of a new regime.....................................................................................................................................................................................................................25
Expanding Territories
Is Kenya ready for an extended continental shelf?...............................................................................................................................................................................................26
Affirmative Action and Discrimination in South Africa
The Barnard Constitutional Case...........................................................................................................................................................................................................................28
Gaining Resources
Taxation of the extractive sector in Kenya.............................................................................................................................................................................................................29
33
Introduction
the year 2030.
KENYA

LegalNotes 3
Introduction
Everyone wants a piece of “Africa”, and as
2014 draws to a close, Africa undoubtedly
basks in the glory of being the coveted bride
courted by the East and the West alike. But it is
perhaps the “new flame” – the Eastern nations
– that has rippled the waters.
In its 2007 report titled “Asian Direct Investment
in Africa, Towards a new era of cooperation
among developing countries”, the United
Nations reported that between 2002 to 2004,
foreign direct investment (FDI) from Asia to
Africa had reached an annual figure of USD 1.2
billion, and predicted that this figure would only
go up. Ten years on, and FDI from just China to
sub-Saharan Africa in 2012 was over USD 18
billion, with annual trade volumes standing at
USD 210 billion in 2013. Annual trade between
Africa and the Middle East is today estimated
at USD 49 billion, with non-oil trade between
the UAE and Africa in 2012 estimated at USD
19.1 billion.
The Afro Silk Road
Reflections on Middle East and Asia investment into Africa
The most notable investor countries into Africa
from the East have been China, India and the
UAE. New major investment partners from the
2 regions are rising, including Saudi Arabia,
Qatar and Kuwait in the Middle East, and
Japan, Malaysia, Korea, Indonesia and
Singapore in Asia.
So what has caused the rapid investment into
Africa from the East? Are these powerhouses a
threat to the dominance previously enjoyed
by Western countries in African investment? In
this edition of Legal Notes, we take a closer
look at African investment from the Middle East
and Asia, drawing on insights from Senior ALN
Partners in some of the top African investment
destinations.
Leading investments sectors
According to Mr. Atiq Anjarwalla, Senior
Partner at Anjarwalla Collins & Haidermota
in Dubai, the main sectors of interest for
investors from the East have been oil & gas,
energy, fast moving consumer goods (FMCG),
financial services and infrastructure.
China leads the charge when it comes to
extractives and infrastructure development,
with a lion’s share being taken by State-owned
enterprises. India is very active in the areas of
telecommunications and technology, agro-
processing and FMCG. One of the most iconic
entries by Indian investors into Africa was Bharti
Airtel’s USD 10.7 billion acquisition of the
African telecommunications assets of Kuwait’s
Zain a few years ago. Since then, other Indian
giants have followed suit.
Other Asian giants in Africa include Malaysia,
which in March 2013 was reported by UNCTAD
to be Asia’s top FDI provider in Africa, surpassing
that of China in 2011. Top Malaysian companies
in Africa include Petronas, the global oil giant
which has an 80% stake in Engen, a South
Africa petroleum company with interests across
Africa, and Sime Darby, the Malaysian energy
and agri-business conglomerate, which is the
Elizabeth Karanja
Senior Associate
JMiles & Co.
ewk@jmilesarbitration.com
Anne Kiunuhe
Partner
Anjarwalla & Khanna
ak@africalegalnetwork.com
Atiq Anjarwalla
Atiq has been
ranked a leading
lawyer in the
banking, capital
markets, energy
and infrastructure,
project
development, M&A
and project finance
practice areas by
IFLR 1000 2014.
aanjarwalla@ach-legal.com
33
Introduction
the year 2030.
KENYA

4 LegalNotes
world’s biggest palm oil producer, with
operations in South Africa, Liberia and
Cameroon.
The Middle East has been active in Africa for
several years, and with a booming economy
and deep pockets which are supported by
sovereign wealth funds, it has been expanding
its focus. There is huge investment in the
financial markets, real estate, hospitality,
logistics and FMCG and retail. Mr. Gbolahan
Elias, senior partner at G.Elias & Co of Nigeria
identifies the 3 major sectors that the Middle
East has been investing in Nigeria as being real
estate, financial services and trading.
Big players in African real estate and hospitality
from the UAE include Isithmar, a Dubai-based
investment holding company, which together
with London & Regional Properties, a UK
investment group, bought Cape Town’s
prestigious V&A Waterfront for USD 910 Million
a few years ago. Investment from the Middle
East also includes the industrial sector. In
September 2014, a UAE sovereign fund,
Investment Corporation of Dubai (ICD) bought
a 1.4% stake in Dangote Cement, Nigeria’s
biggest company by market capitalisation, and
headed by Africa’s richest man, Aliko Dangote,
for USD 300 million. In early 2014, Al Futtaim,
a UAE conglomerate, took over CMC Holdings,
a giant automotive dealer in Kenya, for about
USD 90 million. Al Futtaim is also introducing
the giant French retail chain, Carrefour to
Kenya.
Preferred investment launching pads
Every investment needs a launching pad, and
this is no different for Eastern investors.
Mr. Roddy McKean, Director at Anjarwalla &
Khanna in Kenya, notes that there is increasing
regionalisation and regional hubs have
developed in East, West and Southern Africa.
Mr. McKean reckons that although Mauritius
has an important role as a financial structuring
gateway, the main business and transactional
gateways are Nairobi (Kenya), Lagos (Nigeria),
and Johannesburg (South Africa). In Nairobi,
many companies have seen an increasing
sophistication in the infrastructure (physical,
services and people), making it an obvious
choice for regional and pan-African
headquarters for a growing number of
i n t e r n a t i o n a l i n v e s t o r s .
Mr. Anjarwalla points out that the UAE is an
important jurisdiction favoured by investors
from the GCC due to familiarity, zero taxation
regime and double tax treaty network.
Aside from the above major hubs, there are also
emerging new investment centres in Africa. Mr.
John Miles, Director at JMiles & Co., foresees
Gbolahan Elias
Gbolahan has been
ranked a leading
lawyer in Banking,
capital markets,
debt, energy and
infrastructure,
project development,
M&A and project
finance practice
areas by IFLR 1000
2014
gelias@gelias.com
Abidjan in Cote d’Ivoire as a future investment
hub. The city recently regained its glory as the
headquarters of the African Development Bank
(AfDB), which had been moved to Tunis 10
years ago during Cote d’Ivoire’s civil war.
Another emerging hub is Accra in Ghana,
which enjoys relative political stability and
improving law and governance.
What are the reasons for investment?
Interest in these sectors has been generated by
various factors.
Generally, African countries have made drastic
improvements in laws and processes on business
registration; protection of investment;
repatriation of funds and investment incentives;
political and macro-economic stability; and
availability of an educated human resource
pool. Mr. Anjarwalla notes that in addition,
“African governments have prioritised
investment in energy and infrastructure in line
with development plans, there has been
33
Introduction
the year 2030.
KENYA

LegalNotes 5
parties. Most contracts do not have dispute
resolution or governing law clauses, and parties
sometimes find themselves in complex and
expensive arbitrations for simple contractual
arrangements.
Any last words of advice?
Investment from the Middle East and Asia is set
to only increase, as investment giants rise, and
new partners emerge.
For the African target, Mr. Miles advises that
one should maintain constant communication,
and perform in a timely way. The old saying
“This is Africa” or “TIA” should have a positive
and not a negative connotation. African parties
should internationalise, and in line with this,
Mr. Anjarwalla underscores that parties should
ensure that there have high levels of corporate
governance and strong teams as investors are
looking up for businesses that operate using
international best practices.
For the Middle Eastern or Asian investor,
Mr. McKean amplifies that there is a need to
get strong local partners, understand the
business environment and analyse the market
dynamics, which often differ greatly on a
country by country basis. According to him,
“Africa is often presented as if it is one country.
New investors need to understand that Africa is
a varied mix of 54 countries and each country
needs to be approached individually in its own
right. Just because one approach worked in one
country does not mean it will work in its
neighbour.”
These are wise words to take away, even as the
new Afro Silk Road develops, the African drum
beats and investors answer the roar of Africa’s
rise in the world economy.
reduction of corruption and enhanced rule of
law, and there is a young aspirational African
middle class that provides a ready market.”
According to Mr. Elias, other improvements
made by Nigeria include, better image-
promotion; reduction of external debt; increased
foreign exchange reserves; allowing non-
Nigerians to own Nigerian companies 100%;
and allowing the free repatriation of the
proceeds of foreign investment.
Investment partners from the Middle East and
Asia have been actively entering into treaties for
encouragement of investment with African
countries.
For instance, China has over 20 bilateral
investment treaties (BITs) with African countries,
including among others, Ghana, Tunisia, Egypt,
Kenya, South Africa, Mozambique and Mali.
India has BITs with Egypt, Ghana, Mauritius,
Morocco and Mozambique. The UAE has BITs
with Algeria, Egypt, Morocco, Mozambique,
Sudan and Tunisia.
UAE has double tax treaties with among others,
Algeria, Egypt, Sudan, Tunisia, Morocco,
Mozambique, Seychelles and Mauritius. More
recently, a UAE DTA with Kenya is expected to
come into force soon. China has DTAs with
among others, Egypt, Ethiopia, Morocco,
Mauritius, Seychelles, South Africa, Sudan and
Zambia. India has DTAs with among others,
Egypt, Kenya, Libya, Mauritius, Morocco, Sierra
Leone, Tanzania, Uganda and Zambia.
How different is the East from the
West?
A major difference in how the East invests into
Africa as compared to the West is that Eastern
investors seem to be more adaptable to the
local circumstances in African countries.
According to Mr. Miles, with South – South
investment, there is a clearer understanding of
methods of transacting and the realities of a
developing world. Mr. McKean agrees, and
adds that as Asian investors are already
operating in emerging markets at home,
generally, the risks and challenges of investing
in Africa are very familiar.
The adaptability factor has however been
criticised as being at times tolerant to repressive
regimes, bad governance and human rights and
labour violations. There is a balance to be
struck, as development should not only be
industrial and economic, but should also be
political and social.
There is still room for improvement
Despite the strides that have been made by
African governments to foster investment,
Improvements still need to be made in order to
fully benefit from the growing relationship
between Africa and the East.
According to Mr. Elias, Nigeria needs to work
harder at reducing corruption and improving
security. Mr. Miles adds that African
governments need to work on expanding free
trade zones, allowing foreign ownership, and
easing up on work permit restrictions.
Investors from the East also need to move away
from common misconceptions that act as a
deterrent to investment. One of the prevalent
issues noted by Mr. McKean is that investor
perception of Africa tends most times to be
different from the reality. The press tends to
focus on the negatives rather than the positives,
and the risks are often overplayed due to a lack
of understanding. The positive things
happening on the ground are often not
publicised. Mr. Anjarwalla adds that a number
of investors do not appreciate the high level of
sophistication which has developed in the
African business community, resulting in
tougher competition.
In terms of contracting and business
relationships, one of the major issues that
Mr. Miles notes is largely ignored is front-
ending considerations of dispute resolution by
Roddy McKean
Roddy is an M&A
and private equity
specialist with a
pan-African practice.
He was ranked as a
leading corporate
lawyer Africa-wide
by Chambers Global
2014.
rm@africalegalnetwork.comJohn Miles
John Miles has wide
experience in
international
arbitration and
investigation, and is
a member of ICC’s
Fraudnet.
jmm@jmilesarbitration.com
33
Introduction
the year 2030.
KENYA

6 LegalNotes
Combating money laundering in Uganda
Chasing Dirty Money
Introduction
Uganda has joined its East African neighbours
of Kenya and Tanzania in the fight against
money laundering by enacting the Anti-Money
Laundering Act, 2013 (the “AML Act”) which
came into force on 1st November 2013. The
AML Act will provide a firm legal avenue
through which the Government and key role
players in the economy will work together to
combat money laundering and related crimes.
Impact of the AML Act
The AML Act introduces the term “accountable
persons” to include Advocates, financial
institutions, real estate agents, investment
dealers, brokers, and advisers licensed under
the Capital Markets Authority Act (Cap 84),
insurance companies, all licensing authorities,
churches, Non-Governmental Organizations
(NGOs) and other charitable organizations who,
by the nature of their business or profession are
deemed to be at risk of being involved in the
different stages of money laundering or terrorist
financing.
Obligations are imposed on
accountable persons to establish
and maintain appropriate policies
and measures to prevent and
detect situations where there may
be a risk of money laundering.
Such obligations include carrying out due
diligence on their customers or clients, recording
of all monetary transactions over the sum of
Ug. Shs. 20 million (approximately US$7,800),
monitoring of cross border movement
of currency and negotiable instruments,
monitoring and reporting of suspicious
transactions, and maintenance of client records
for over 10 years.
To ensure that the accountable persons meet
their obligations, the Financial Intelligence
Authority (the “FIA”) on 22nd August 2014,
issued the FIA Guidelines requiring each
accountable person to appoint a person at
senior management level as the “Money
Laundering Control Officer” (MLCO).
The MLCO will in addition to playing a liaison
role between the FIA and the accountable
person, ensure compliance with the AML Act.
By imposing these duties on accountable
persons, the AML Act puts them at the
forefront of the fight against such crime.
However, it is not clear how a single set of
measures can apply to such a diverse group of
accountable persons, especially in an economy
where large transactions can still be done on
a cash basis.
The AML Act also introduces the term “politically
exposed person”, defined as persons entrusted
with prominent functions in the country such as
senior politicians, senior Government, judicial or
military officials. Accountable persons will have
toputinplaceextraduediligencemeasureswhen
dealing with such persons, including among
others, establishment of appropriate guidelines
to monitor their business, reasonable measures
to establish the source of their wealth or funds.
Such extra due diligence measures will help
in dealing with the related crimes of
corruption and mismanagement of government
funds.
The Financial Intelligence
Authority (FIA)
The FIA is the administrative body under the
AML Act, with a heavy mandate to combat
money laundering including enacting policies,
promoting awareness and understanding of
the crime, supporting investigations, storing
collected information, and setting guidelines
for unsupervised accountable persons. The FIA
has recently been set up and operating.
In a country with an already bloated cost of
public administration, establishment of another
public body is perhaps the last thing needed
to restore the health of the public purse. With
the Bank of Uganda already exercising a similar
mandate in respect of financial institutions,
a possible alternative would be to expand
33
Introduction
the year 2030.
KENYA
Philip Karugaba
Partner
MMAKS Advocates
karugaba@mmaks.co.ug
Sheila Pacuto
Associate
MMAKS Advocates
pacuto@mmaks.co.ug

LegalNotes 7
its remit with further support. It is not far
fetched to anticipate friction between the
respective enforcement arms of the Police, Bank
of Uganda and the new FIA on policing the
issue.
To the financial institutions, the FIA may
bring clarity as to whom to report suspicious
transactions and other such matters. Under the
Financial Institutions (Anti-Money Laundering)
Regulations 2010, financial institutions are
required to report such suspicious activities to
the ‘national law enforcement agencies’- a term
which was not defined. Financial institutions
will have to comply with both these Regulations
and the AML Act but, fortunately, there is not
much divergence.
Principle of Equitable Utilisation
The AML Act lays down numerous orders
that may be imposed by the court, such as
document search orders and monitoring orders,
emergency searches and seizures, confiscation
and pecuniary orders.
as the tampering of records, obstruction of
an official in the performance of his functions
and tipping off.
The penalties imposed on the offenders are
stringent and should be a deterrent if imposed
judiciously. An individual who commits a crime
under the AML Act will face between 5 years
to 15 years in prison and/or be liable to a fine
ranging from Ug. Shs. 660 million to Ug. Shs. 2
billion (approximately US$2,575 – US$780,340).
For a legal person (company) the fine imposed
on the entity will range from Ug. Shs. 1.4 billion
to Ug. Shs. 4 billion (approximately US$546,240
– US$1,560,680)
Conclusion
For an economy still seeing large cash
transactions, money laundering is always a
concern. The AML Act was long in coming but
it is finally here. Uganda experimented with
administrative measures to curb the use of cash
transactions, through to regulations targeting
banks and now graduating to an all-embracing
law. The FIA has since its set up issued Guidelines
aimed at fighting dirty money and giving the
relevant legislation teeth. It remains to be seen
how effective it will be?
“Clients are glowing about
the [MMAKS Advocates]
partners’ understanding
of their issues and ease
of interaction.”
Chambers Global 2014
Persons in the real estate industry should take
note of the restraining order which will affect
land or real estate. It is intended to prevent the
disposition of property and will be registered as
a charge on land. Any subsequent dispositions
or dealings on the land maybe set aside by
the court.
International cooperation
The AML Act makes money laundering an
extraditable offence and provides for mutual
cooperation through exchange of information
and resources with other countries to ease
investigation of the crime, enforcement of the
orders and punishments imposed by the courts.
Offences under the Act
The AML Act criminalizes any failure by an
accountable person to perform the duties
and obligations prescribed by the Act such as
failure to identify clients, failure to keep records,
and failure to report cash transactions. It also
criminalizes acts done by an individual to abet
or facilitate the commission of the crime such
33
Introduction
the year 2030.
KENYA

8 LegalNotes
Introduction
Zambia has recently enjoyed good economic
growth spurred by investments in mining,
construction, agriculture, transport and energy.
The increase in economic activity inevitably
exposes the environment to pollution and there
is an obvious need to preserve and manage
the environment while exploiting resources.
Alive to this need, the Government of Zambia,
in the year 2011 passed the Environmental
Management Act No. 12 of 2011 (“EMA”), to
provide for integrated environmental
management and the conservation of the
environment. The Zambia Environmental
Management Agency (“ZEMA”) was the new
regulator under the EMA. In November 2013,
the Government issued the Environmental
Management (Licensing) Regulations, 2013
(“Licensing Regulations”).
Effect of the Licensing Regulations
Prior to the enactment of the Licensing
Regulations, environmental licensing in Zambia
was regulated by several statutory instruments
issued between 1993 and 2001.
The statutory instruments included: Water
Pollution Control Regulations of 1993; Waste
Management Regulations of 1993; Pesticides
and Toxic Substances Regulations of 1994 and
2000; Air Pollution Control Regulations of
1996; Ozone Depleting Substances Regulations
of 2001; and Hazardous Waste Management
Regulations of 2001. All of the foregoing
statutory instruments were revoked by the
The Green Revolution
Licensing Regulations and in effect the various
licenses issued under the said statutory
instruments are now issued under the Licensing
Regulations.
The Licensing Regulations now broadly provide
for the following 5 types of licences, of which
one or all of the licences may be required by
a business in Zambia:
(a) an emission licence required by any person
who intends to emit or discharge a pollutant
or contaminant into the environment;
(b) a waste management licence required by
any person who intends to reclaim, recycle,
transport, transit, trade in, export waste or
collect and dispose of waste, construct or
operate a waste disposal site or facility for
the disposal or storage of waste;
(c) a hazardous waste licence required to
generate, treat, handle, transport, store,
dispose of, transit, trade in or export
hazardous waste;
(d) a pesticide and toxic substances licence
required to manufacture, import, export,
store, distribute, transport, blend or process
a pesticide or toxic substance; and
(e) an ozone depleting substance licence
required by importers, exporters, producers
or distributors of a controlled substance
or ozone depleting substance.
Licences under the Licensing Regulations are
valid for three years unless suspended, cancelled
or surrendered before the three year period.
Licences may be renewed for a further three
years. Licences cannot be transferred to a third
party without the prior approval of ZEMA
and where there is any change in the particulars
of a licence or the licence holder the licence
holder should notify ZEMA within fourteen
days of the change.
Another new feature of the Licensing
Regulations is a requirement for licence holders
to file returns with ZEMA. For most licence
holders, the requirement is to submit twice-
yearly returns.
There are various grounds on which ZEMA
may suspend or cancel a licence, including
fraud and breach of licence terms.
Conclusion
Economic activity is one of the main drivers of
development but development especially in
Zambia must be handled with care! What
remains after the mines have opened the earth
and extracted all minerals? How do we ensure
business operations do not leave behind a toxic
environment? These and other environmental
considerations should be at the core of all
stakeholders championing sustainable
development in Zambia. The Licensing
Regulations are a step in the right direction in
ensuring sustainable management of resources
and environmental preservation.
“[Musa Dudhia & Co.] acts for
such well-known names as
GE and Goldman Sachs and
is particularly active advising
on larger scale banking and
finance transactions.”
Gilbert Chama
Senior Associate
Musa Dudhia & Co.
gchama@musadudhia.co.zm
New environmental laws in Zambia
33
Introduction
the year 2030.
KENYA

LegalNotes 9
Mr. Alnoor Roshanali Dhrolia
Mr. Dhrolia resides in Dubai, UAE, and is part of a family group that has been doing business in Africa for
over 4 decades. Mr. Dhrolia’s group has invested in: mining and mining related services; steel rolling mills;
agriculture; general trading; property development and construction (both conventional and affordable);
and small to medium scale industries. The group is currently operating in DR Congo, Angola, Kenya,
Mozambique and the UAE. Group offices are located in Canada, China, India, South Africa, Tanzania,
Kenya, DR Congo, UAE and Angola.
Guest Column
Africa in many aspects is considered a big
unknown, resulting in individuals
refraining from venturing in. The
complications and corruption related
factors are often daunting. However, a
wide array of conventions and conferences
being hosted by Dubai has created a
strong awareness of Africa and the
ignorance that once existed is slowly
dissipating.
Q: In your view, is the new wave of
investment in Africa sustainable?
What can Africans do to gain the most
out of the investment from the UAE?
Mr. Dhrolia: Absolutely sustainable.
Africa has such a level of needs throughout
sectors and borders. The opportunities
that exist will cross many generations.
That is the exciting part. Joint ventures
need to be created with companies in the
region in order to bring finance expertise
and knowledge to Africa. There is immense
poverty in Africa, however, there is now a
generation that is able to afford getting
overseas education. They are coming back
and making a difference. This is one
strong area that we must partner into. We
need to bring more of the younger
generation back to bring new ideas and
ways of working. We need to create a very
strong vision for the continent and have
the courage to execute it… just like Dubai
has done!
Trade relations between the Middle East and
Africa are at all time high. The UAE remains
at the forefront of these relations and is the
Middle East’s largest FDI provider to Africa. In
this edition of Legal Notes, Anne Kiunuhe
and Elizabeth Karanja speak to Mr.
Dhrolia, and get his insight on doing
business between the UAE and Africa.
Q: What are the top 5 investment
destinations and sectors in Africa for the
UAE, and why are they favourites?
Mr. Dhrolia: Africa is the emerging continent
that presents tremendous business
opportunities. Nevertheless, many African
countries are perceived to be difficult to work
in and I feel that UAE Investors are quite
cautious. Most investors initially prefer the
more stable East African ones that pose
lower barriers to entry. However, the
seasoned UAE Investors are still heavily
invested in Nigeria, Ghana, Ivory Coast and
Angola. The primary sectors would be Real
Estate, Oil & Gas, Trading of FMCGs, White
Consumer Electronics, Telecommunications
and light industries.
Q: What sectors do you consider as
largely ignored in Africa, and having
great potential for future investment
from the UAE?
Mr. Dhrolia: Tremendous opportunities lie
in Agriculture, heavy industries and power
generation.
Q: What measures should African
Governments taking in order to bolster
UAE investment into Africa?
Mr. Dhrolia: Awareness is key. African
nations need to do effective investment road
shows. It would be essential to have inter-
governmental initiated business trips to
African countries, where one can see first-
hand what is on offer.
Q: How is investment into Africa from
the UAE different from investment from
traditional Western partners of the US,
UK and Europe?
Mr. Dhrolia: UAE has been able to unite
West and East very effectively. The region
hosts a diverse range of investors that are
doing business in and from UAE. Servicing
African countries either by way of products
or services is more simplified from UAE,
thereby making business easier.
Q: What are the common misconceptions/
myths that investors from the UAE have
towards Africa, and how are they being
busted?
Mr. Dhrolia: It is simply a lack of information.
33
Introduction
the year 2030.
KENYA
Insights from Mr. Dhrolia on investment from the UAE to Africa

10 LegalNotes
For instance, sponsors, designated advisers,
auditors and independent experts. Instead of
the JSE going through the disclosures itself, the
JSE will be placing more reliance on these
parties to check the dissemination of
information to the market now that these
roles are well established and regulated.
Process for implementation of the
amendments to the Requirements
The JSE has clarified the process for
implementation of the amendments to the
Requirements. Key points include:
(a) All transactions concluded before 30th
September 2014 must be categorised and
announced pursuant to the old provisions
of the Requirements. Transactions
concluded on or after 30 September 2014
will be categorised and announced in
terms of the provisions of the amended
Requirements;
(b) The disclosure requirements applicable in
respect of the preparation of a circular for
a transaction will be determined by the
date of formal approval of the circular.
In other words, if formal approval is
provided before 30th September 2014, the
disclosure requirements of the old
Requirements will apply. However, if formal
approval is provided on or after
30 September 2014, the amended
disclosure requirements will apply; and
Introduction
The Johannesburg Stock Exchange (JSE) is the
largest stock exchange in Africa, and is 19th
largest in the world by market capitalisation.
There are almost 400 companies listed on
the JSE across the main board and on the
alternative exchange (AltX).
The JSE is regulated by statute, and the latest
development has been the global amendments
to the JSE Listings Requirements (Requirements),
which were announced to the market on 30th
August 2014. These amendments became
effective on 30th September 2014, and
primarily affect financial reporting for listed
companies.
Reasons for the general review
The JSE recognised that, since the last review of
the Requirements, there have been significant
developments in corporate governing structures
Colin du Toit
Partner
Webber Wentzel
colin.dutoit@webberwentzel.com
requirements in South Africa
New JSE Listing
and the quality of financial reporting as it
relates to listed companies. Contributing factors
are the Companies Act No.71 of 2008 (Act) and
the application of the King Report on Corporate
Governance (2009) (King III) and International
Financial Reporting Standards (IFRS) by
listed companies.
One of the aims of the general review was to
ensure that disclosure requirements be removed
that (i) no longer add regulatory value or (ii) are
now addressed through compliance with the
Act or IFRS.
The amended Requirements
also seek to impose stronger
regulations on professional
advisers who play a key role in
ensuring the integrity of
disclosures by listed companies.
Elodie Maume
Corporate Professional Support Lawyer
Webber Wentzel
elodie.maume@webberwentzel.com
33
Introduction
the year 2030.
KENYA

LegalNotes 11
(c) The amended conditions of listing in
respect of Main Board issuers and ALTx
issuers will apply in respect of a new listing
if formal approval is provided on or after
30th September 2014.
.
Key amendments to the
Requirements:
The following are key amendments to the
Requirements:
(a) There is enhanced responsibility of sponsors
in relation to listing applications. The JSE
will no longer pre-approve listing
applications in respect of classes of shares
already listed.
(b) Extra time is granted to directors to report
dealings in securities to issuers.
(c) There is a requirement for disclosure of
voting results on the JSE’s real-time Stock
Exchange News Service (SENS) within
48 hours of an AGM or general meeting.
(d) Subsidiary companies of listed issuers are
no longer required to appoint auditors and
to have their financials audited, but they
must still comply with the Act and their
memorandum of incorporation (MOI).
(e) Resolutions on certain corporate actions
may now be approved by way of written
resolutions subject to the provisions of
the issuer’s MOI.
(f) Financial criteria for listings on the Main
Board have been updated to align with
the current market conditions and to
allow an alternative entry point via a
net asset value test.
(g) A pre-listing statement (PLS) is only required
in respect of an issue of securities where
such issues, together with any securities
of the same class issued in the last three
months, would increase the securities in
issue by 50% or more (compared previously
to 25%).
(h) The Category 1 transaction threshold
increased from a percentage ratio of
25% to 30%.
(i) There is an amendment of the definition
of “related party” to exclude a director of
a subsidiary of the issuer, a director of a
subsidiary of the issuer’s holding company,
and a person which holds a 10% or greater
shareholding in a subsidiary of an issuer
(or a subsidiary of the issuer’s holding
company).
(j) There is introduction of a fast-track listing
process for companies applying for a
secondary listing on the Main Board,
provided such companies have been listed
for at least 18 months or more on an
accredited primary exchange (as determined
by the JSE).
(k) Repurchase programmes which are
implemented during a prohibited period
pursuant to a programme submitted to
the JSE prior to such period commencing
must now be executed by an independent
third party (and not the issuer).
33
Introduction
the year 2030.
KENYA
(l) Pro forma financial effects are no longer
required in various instances and a less
onerous requirement applies depending
on the type of corporate transaction.
This summary does not cover amendments
in relation to ALTx.
Conclusion
The amendments to the JSE Listing Requirements
have broad ranging effects on corporate
governance and financial reporting on listed
companies, and their advisors. They will take
some getting used to, and we are on hand to
provide the guidance required to better
understand them.
Webber Wentzel won the
”Africa Law Firm of the Year”
award in 2014.

12 LegalNotes
Introduction
According to the World Bank, out of Nigeria’s
population of about 158 million people, the
working age population is about 54%. A
growing concern in any emerging economy
is to ensure that the retirement benefits of its
working population are assured. This not only
serves as a motivation for the active workforce,
but also ensures that the retired workforce is
not a “burden” to new workforce in future.
Reforms in Nigeria’s Pension Law
Obianuju Ifebunandu
Associate
G. Elias & Co.
uju.ifebunandu@gelias.com
Naira for Senior Citizens
Nigeria’s pension system has undergone
significant changes since 2004. Prior to 2004,
Nigeria operated a combination of defined
benefits scheme (DBS) and contributory pension
scheme (CPS). In 2004, the Pension Reform Act,
2004 (“PRA 2004”) introduced a new pension
system based on a mandatory CPS. In 2014, the
PRA 2004 was repealed by the Pension Reform
Act, 2014 (“PRA 2014”), which among others,
enhances the benefits of contributors, prescribes
stiffer punishments for misappropriation of
pension contributions and assures the powers
of the National Pension Commission (PENCOM).
The enactment of the PRA
2014 is a welcome development
towards ensuring a robust and
effective pensions administration
system in Nigeria.
The state of affairs prior to the 2004
reforms
The DBS was used primarily for Nigerian public
sector workers and employees of state-owned
agencies. There were combined elements
of DBS and CPS applicable to the private
sector. The DBS was plagued with a myriad of
problems. Public sector pensions were largely
unfunded due to its high dependency on
government budgetary allocation. Payment of
benefits became a burden on government with
successive governments, failing to pay pensions
and gratuities. Prior to 2004, unpaid pension
deficits was estimated to be over N2 trillion
(Approximately US$12.5 billion.)
Private sector pensions were also not immune
to problems, and were characterized by a low
compliance ratio due to ineffective regulation.
Many private sector employees were not
covered by any form of pension scheme or
retirement benefit arrangement.
In the 2010 case of Central Bank of Nigeria
v. Amao, the Supreme Court of Nigeria advised
that “there must be a change of attitude in the
care and concern for our senior citizens in this
Chinedu Kema
Associate
G. Elias & Co.
chinedu.kema@gelias.com
33
Introduction
the year 2030.
KENYA

LegalNotes 13
country. There must be an assurance that our
old people will spend their retirement without
hassle and anxiety in the process of earning
their retirement benefits”.
Pensions Reform
The PRA 2004 established PENCOM to regulate
and supervise all pension matters in Nigeria.
The PRA 2004 also introduced a uniform and
compulsory CPS applicable to both public and
private sectors. Employers with five or more
employees were required to participate in the
scheme. The PRA 2014 improves this, and
allows employers with three or more employees
to participate in the scheme. Employees in
the informal sector (such as households, shop
owners, dress makers, temporary and casual
jobs are also covered by the PRA 2014.
Employees are required to open Retirement
Savings Accounts (“RSA”) with a Pension Fund
Administrator (PFA). The RSA remains with the
employee for life, even if the employee changes
his/her employer or a PFA. Subject to certain
exceptions, the employee may only withdraw
from the RSA on turning fifty years or upon
retirement.
To ensure that pension funds are fully funded,
the PRA 2004 provided for a contribution of
7.5% of the employee’s monthly emoluments
from both the employer and employee
respectively. The rates of contribution were
increased by the PRA 2014 to 8% and 10% of
the employee’s “monthly emoluments” for the
employee and employer respectively, defined
as “total emoluments as may be defined in the
employee’s contract of employment but shall
not be less than a total sum of basic salary,
housing allowance and transport allowance”.
This increases the base amount that is subject
to contribution. Pension fund assets currently
stand at N 4.21 trillion (approximately
US$26.3billion).
Pension fund investments payable as retirement
benefits, that is all interests, dividends, profits,
investment and other income accruable therein
are tax-exempt. Contributions by employees
form part of tax deductible expenses in the
computation of income tax payable. However,
voluntary contributions are taxable where the
contributions are withdrawn within 5 years of
the voluntary contribution.
PENCOM is authorized by the PRA 2014 to
establish a pension protection fund (“PPF”).
The PPF is to be funded from an annual
subvention of 1% of the total monthly wage
bill of public sector employees, the annual
pension protection levy paid by PENCOM and
all licensed pension operators and income from
investments of PPF. The PPF acts as a hedge
to ensure payment of minimum guaranteed
pension and compensation to pensioners for
any shortfall or financial losses from investment
of pension funds.
Employees aggrieved with their employers, PFAs
or PFCs were required under PRA 2004 to seek
redress from PENCOM, prior to approaching an
arbitral tribunal or the Investments and Securities
Tribunal (IST) (a specialized quasi-judicial body
set up by the Investment and Securities Act
2007). Under PRA 2014, the National Industrial
Court (a specialized court established by the
Nigerian Constitution for employment matters)
replaced the IST.
There are stiffer penalties under PRA 2014. For
instance, operators who mismanage pension
funds are liable on conviction to not less
than 10 years imprisonment and/or a fine of
an amount equal to three times the amount
misappropriated. The convicted person may
also forfeit any property or asset or proceeds
of any unlawful activity under PRA 2014.
Conclusion
The shortcomings of the pre-2004 regime
necessitated urgent reforms. The promulgation
of PRA 2014 underscores the importance of
pensions in the development of emerging
economies like Nigeria. Only time will tell
whether PRA 2014 will live up to expectations.
“[G. Elias & Co.] make the effort
to make sure they protect their
clients thoroughly.”
33
Introduction
the year 2030.
KENYA

14 LegalNotes
Introduction
Capital Gains Tax (CGT) has been reintroduced
in Kenya after a 30 year absence. Effective 1st
January 2015, amendments to the Income Tax
Act (Chapter 470, Laws of Kenya) bring into
force CGT, which last existed in Kenya in 1985.
It is intended that CGT will apply on the gain
accruing to an individual or to a company on
the transfer of property situated in Kenya. In
the case of a company, CGT will apply on all
forms of property, including business assets,
immovable and movable assets, shares in
The effects and challenges
companies, intangible assets, obligations and
easements amongst others (except gains arising
from the transfer of motor vehicles are not
taxable for companies). In the case of individual,
CGT will apply only to immovable property and
marketable securities. The rate of tax will be
5% on the gain made. The ITA also provides
that the gain will not be subject to further
taxation.
Was it about time?
Many economists are of the view that the
return of CGT in Kenya was long overdue. For a
number of years, the real estate market in
Kenya has grown in leaps and bounds and has
featured prominently on Knight Frank’s Prime
International Residential Index, taking 1st place
in 2011 and 2012 as the world’s fastest growing
property markets. It has long been viewed that
the Kenyan Government was not deriving
sufficient taxes in light of the super gains made
from rising property prices in Kenya. This was
coupled with the fact that other East African
countries, such as Uganda and Tanzania, both
had CGT legislation which contributed
significantly to the public coffers.
Indeed, Kenya had previously attempted to
reintroduce CGT through Finance Bill 2006,
which the Members of Parliament voted
against. In the face of growing budgetary
constraints, the Members of Parliament
approved the return of CGT albeit at a much
lower rate of 5% of the net gain made. This
may be contrasted with the significantly higher
CGT rate of 30% which currently exists in
Uganda and Tanzania.
Challenges ahead
Having said that, implementation of the CGT
legislation as from 1 January 2015 will be
fraught with challenges. Firstly, the CGT
legislation is based on the system first
implemented in Kenya in 1970, which was later
suspended in 1985, with cursory changes made
to bring it back into force in 2014. Consequently,
the CGT legislation is outdated and not in line
with CGT legislation in jurisdictions with
developed tax systems.
Kenneth Kang’ethe
Associate
Anjarwalla & Khanna
kkn@africalegalnetwork.com
Daniel Ngumy
Partner
Anjarwalla & Khanna
dng@africalegalnetwork.com
33
Introduction
the year 2030.
KENYA

LegalNotes 15
“[Anjarwalla & Khanna]
provides excellent client
service and the lawyers are
commercially switched-on.
They can see the pitfalls in
deals, they indentify the
important issues and tackle
them in the best possible way.”
By way of illustration, Kenya’s proposed CGT
legislation will not have a system of indexation
or taper relief to adjust for the effects of
inflation on gains. Consequently, gains which
have accumulated over the last 30 years when
there was no CGT in Kenya will be subject to
CGT with no adjustment made to counter
inflation over that period. The absence of a
mechanism to take into account the effects
of inflation means that taxpayers will be taxed
on paper gains.
Another issue that will arise is that capital costs
will be deductible only on production of records
evidencing the initial cost of the asset at the
time of acquisition. Under Kenya’s income tax
legislation, a taxpayer is only obliged to keep
records for a period of 7 years. Most records
relating to property improvements would be
likely to be unavailable where the asset has
been held for a period exceeding 7 years. The
new CGT regime does not create transitional
rules as to how such assets would be treated.
Furthermore, a special regime is set to apply to
individuals who hold shares in listed entities.
The special regime proposes a CGT rate of
7.5%, which contradicts with the overall rate of
CGT of 5% introduced under the ITA. As it
presently stands, there is lack of clarity on the
rate which should apply, and this is likely to
create confusion once the law takes effect after
1 January 2015.
It is intended that responsibility to compute,
withhold and pay tax on the gain on listed
shares would be placed on stockbrokers.
Unfortunately, no consultation was done with
the stockbrokers and therefore at the time of
printing this article most of them remain
blissfully unaware of this obligation as from
1 January 2015. This will present a huge
administrative burden on the stockbrokers
which may lead to an increase in the brokerage
fees and commissions charged to investors.
All in all, the applicability of CGT on gains
arising from transfer of listed shares may
dampen investor appetite on the Nairobi
Securities Exchange.
There are additional challenges with the CGT
regime, such as lack of clarity as to the practical
measures to be implemented in collection of
the capital gains tax as well as how it will be
applied to non-resident persons who own
properties in Kenya in the absence of a
withholding tax regime that would
require the buyer to deduct and remit the
CGT in Kenya.
Conclusion
The impact of the reintroduction of CGT on the
Kenyan market and the investment climate is
something investors are no doubt closely
watching! It can be expected that several
changes to the CGT legislation may be
implemented in years to come, to clarify
the concerns that are highlighted above. In
addition, it is assumed that the low rate of
5% was set to allow for the introduction of
CGT in Kenya but would in years to come
be raised to match the rates applicable in
other East African Community member states.
33
Introduction
the year 2030.
KENYA

16 LegalNotes
Eyes on the Money
Ambareen Beebeejaun
Legal Executive
BLC Chambers
ambareen.beebeejaun@blc.mu
in line with stiffer regulation, and continue to
attract business.
AIFMD – The Gateway to fund
marketing in the EU
The AIFMD is a European Union (EU) directive
framework which requires the European
Commission to prepare detailed rules on
various topics such as conditions and
procedures for the determination and
authorisation of Alternative Investment Fund
Managers (AIFMs) in the EU. Currently, non-
EU AIFMs are able to market the non-EU
Alternative Investment Fund (AIF) in Mauritius
through private placement rules only, subject
to satisfying the following three conditions:
(a) the requirement for a cooperation
agreement;
(b) the exemption of Mauritius and the
respective EU country from the list of non-
cooperative country and territory by FATF;
and
(c) compliance with disclosure and
transparency requirements.
While condition (a) must be satisfied by the
fund manager, conditions (b) and (c) are under
the responsibility of the non-EU fund manager’s
jurisdiction.
Mauritius has to date signed cooperation
agreements with 23 EU countries, and is
working with other EU regulators so that
Mauritius funds continue to be marketable
in the European space.
Mauritius improves its image as an international financial centre
33
Introduction
the year 2030.
KENYA
Introduction
Doing business globally has been more difficult
in 2014, with the international business
community feeling the bite of cross-border
regulations on international financial centres.
Since the early 1990’s, the Mauritian government
has been pro-actively adhering to international
pressures to ensure the competitiveness of
the financial sector.
Mauritius continues to
make great strides at making the
jurisdictions and its Funds more
marketable in the international
space by recently adhering to
the United States’ (US) Foreign
Accounts Tax Compliance Act
(FATCA) and the European Union’s
(EU) Alternative Investment Funds
Managers Directive (AIFMD).
The survival of an international financial centre
rests on its continued competitiveness in the
face of an increasingly tougher regulatory
regime. A financial centre tends to be rated
by the ease of which international players can
access its services, the safeguards it can provide,
and the value it can bring to the transaction
when structured through its jurisdiction.
Centres characterised by low or zero taxation,
light financial regulation, banking secrecy and
anonymity have been favoured structuring
jurisdictions.
However, reforms undertaken by governments
in response to initiatives of supranational
organisations like the Organisation for Economic
Cooperation and Development (OECD), the
Financial Action Task Force (FAFT) and the World
Bank have meant that international financial
centres need to constantly evolve their product

LegalNotes 17
“BLC Chambers is well
respected for its prominence
in commercial and corporate
work, particularly in relation
to the establishment of funds
targeting investment in India
and Africa”
instead of having each client individually
register with the IRS.
The MRA acknowledges the prevalent
uncertainties amongst stakeholders regarding
FATCA implementation in Mauritius and it is
expected that guidance notes will be issued to
address these concerns. However, it is unlikely
that guidance from local administrators of
FATCA would be persuasive in the absence of
rulings and guidance from the designers of the
model. One should expect that these will come
in time, by trial and error, on a case-by-case
basis, and unfortunately not, to say the least,
without feathers being ruffled.
The path forward
Adherence to international standards is a
painstaking but necessary process. Jurisdictions
which show reticence in compliance quickly
fold to the flock when brandished as
‘uncooperative’ with the attendant sanctions
and economic repercussions that come with
being listed on some ominous ‘blacklist’. On
the other hand, a delicate balance is required,
as over-regulation dis-incentivises investors
and leads to dampened growth.
Today, norms that require financial transactions
to be fair and transparent are the sine qua
non for survival and growth – as it should be.
It is expected that Mauritius will continue to
take a pragmatic and balanced approach to
regulation, as it continues in its development
as a leading financial centre in Africa.
In May this year, the Financial Services
Commission of Mauritius (FSC) signed a
Memorandum of Understanding (MoU)
with the European Securities and Market
Authority (ESMA), providing for the sharing
of information and cooperation between
the regulators.
AIFMD will be a game changer for fund
managers who, prior to the establishment of
a fund, would send out ‘teaser’ documents
and draft term sheets to present the prospect
and get a feel of the demand market before
embarking on establishment and full-fledged
road shows. Very often, at that time, the choice
of a fund domicile would not have been made,
and the decision would be taken after discussing
investor preferences. However, after the coming
into force of the AIFMD, such approach would
be considered as marketing. Funds may have
to first set up the fund and obtain the relevant
licences in Mauritius and, thereafter apply for
authorisation with each EU regulator before
being able to approach European investors.
Further compliance hurdles are expected down
the road as European Regulators move further
along towards the ‘passport’ regime.
FATCA – International tax collectors
FATCA is a US legislation enacted in 2010, aimed
at collecting information to facilitate taxation on
residents’ investments abroad. FATCA requires
foreign financial institutions (FFIs) to provide
the US Internal Revenue Service (IRS) with
information about financial accounts held by
US taxpayers, or by foreign entities in which US
taxpayers hold a substantial ownership interest.
The legislation has significant implications on
non-US financial institutions given the penalty
for non-compliance – a hefty thirty per cent
(30%) withholding on US sourced income.
In an attempt to minimise the compliance
burden on Mauritius financial institutions, the
Government of Mauritius had, in December
2013, entered into the reciprocal Model 1
Intergovernmental Agreement (IGA) and a Tax
Information Exchange Agreement (TIEA) with
the IRS. As such, Mauritius-domiciled FFIs report
directly to the Mauritius Revenue Authority
(MRA), which then passes the information to
IRS.
Mauritius enacted the FATCA Regulations 2014
(the Regulations) to translate the provisions
of the IGA and TIEA in Mauritius legislations.
Uncertainties remain
Despite the enthusiasm of the Mauritius
government to cooperate with FATCA
movement, uncertainties remain on critical
definitions, for instance:
(a) Whether the definition of an “FFI” captures
business entities which are merely trading
or carrying out activities that would, under
local legislation, not be considered as
a “financial institution”.
(b) How far up in a structure do FFIs have to
probe to track down potential US persons
involvement.
(c) Whether it is sufficient for an agent, like
the local administrator of a business (a
customary service offered by corporate
services firm in all IFCs) to register with
the IRS on behalf of the offshore entity
33
Introduction
the year 2030.
KENYA

Legal-Notes-December-20141

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