Title: ISSUES OF CORPORATE GOVERNANCE IN AFRICA WITH EMPHASIS ON KENYA
1- ISSUES OF CORPORATE GOVERNANCE IN AFRICA WITH
EMPHASIS ON KENYA - Presented By Karugor Gatamah
- Executive Director Private Sector Corporate
Governance Trust
21. CORPORATE GOVERNANCE
- 1.1 INTRODUCTION
- What is Corporate Governance?
- The system by which corporations are
directed ,controlled and held to account - Hence it refers to the manner in, and the
system by, which power over, and the power of, a
corporation is exercised in the stewardship of
its total portfolio of assets and resources with
the primary objective of increasing and
sustaining shareholder value and while satisfying
the interests, or taking account of the needs, of
other stakeholders in the context of the mission
and vision of that corporation.
3What does corporate governance embrace?
- In the broader context corporate governance
embraces - Issues of public policy, the overriding national
values and ethics and the national priorities and
consensus under which the Licence to Operate is
granted to corporations - The system by which the legitimacy, relevance and
compliance of the corporation is monitored,
supervised and regulated - the national laws and
statutes the conventions, standards, practices
and procedures that regulatory authorities, the
market, trade and business associations,
professional bodies and the society promulgate or
express to guide the conduct of business - The self regulatory mechanisms by which the
corporation governs and conducts itself to ensure
that it remains legitimate, viable and
competitive.
4Why the interest in corporate governance?
- i)From the perspective of society
- It has become increasingly evident that our
continued prosperity as nations, as communities,
and even as dignified individuals, is closely
linked with our ability to create, strengthen and
maintain profitable, competitive and sustainable
business enterprises - The viable, competitive and sustainable modern
business enterprise requires an organization of
basic resources (capital, material and human)
concentrated in large aggregations giving the men
and women entrusted to run those enterprises
power over people, resources etc such that their
decisions have great impact upon the society, the
very lives of entire communities and can shape
the future of nations .
5i) From the Perspective of society
- Old structures, institutions, behavioral patterns
and policies are ill adapted to deal with the
challenges posed by globalization, technological
change and economic liberalization. There is an
urgent need for change in government and private
sector attitudes and strategies - Many of our nations have accepted that the
private sector is the wealth creating and wealth
producing organ of society, i.e. that it is the
engine of growth. Hence it has become relevant
in light of increasing poverty, unemployment and
global misery to ask the question whether that
engine of growth is doing the job it is expected
to do.
6i) From the Perspective of society
- Hence from the perspective of society the
interest in corporate governance stems from the
need to re-assure ourselves - That corporate business enterprises can indeed be
the viable wealth creating and wealth producing
organ of society that creates employment,
utilizes our resources sustainably, effectively
and efficiently for the greatest human good - That corporations and those who run them are held
accountable, responsible and responsive to
society, in the exercise of the power granted
to them by the Licence to operate extended to
the corporate legal person
7i) From the Perspective of society
- That the corporation the soulless self does
not run amok, is held in check by the human
agents entrusted to run it and that those agents
run it for the benefit of mankind with integrity,
accountably and transparently - That the corporate enterprises can competitively
attract investable resources, anticipate and
adapt to global competition and remain relevant
and legitimate - That corporation is a responsible corporate
citizen. - That corporations and those entrusted to run them
comply with the ever evolving legal framework and
concepts of a just society.
8ii) From the shareholder/ investor perspective
- The shareholder or investor in the corporate
enterprise is concerned to see good corporate
governance as would ensure - Realistic corporate democracy facilitating
popular participation and protection of minority
through regular and transparent reporting and
discussion - Protection and recognition of shareholder rights,
fairness and equitable treatment of same class of
investors - Corporate leadership for efficiency and probity,
that is responsible and responsive and that is
accountable and transparent
9ii) From the shareholder/ investor perspective
- Enhanced corporate profitability, increased
shareholder value underpinned by corporate
competitiveness and sustainability - Increased opportunities for investment.
- Effective monitoring of the corporate power
entrusted to directors through transparent
disclosure, accountability for stewardship of
entrusted resources and effective monitoring of
corporate governance.
10iii) From the perspective of the Individual
director and the Board
- The role of a director is increasingly becoming
more professional and much more demanding with
even tougher legal, statutory, contractual and
common Law duties and liabilities, yet there is
no legal guidance on how to fulfill those duties
or avoid the liabilities. - This suggests that directors now need to more
clearly understand their roles, duties and
responsibilities and the liabilities attaching
thereto and particularly given the apparent
influence that developments in international law
and corporate governance have on municipal law
and the tendency towards convergence on uniform
global principles of corporate governance.
11iii) From the perspective of the Individual
director and the Board
- The role of a director is increasingly becoming
more professional and much more demanding with
even tougher legal, statutory, contractual and
common Law duties and liabilities, yet there is
no legal guidance on how to fulfill those duties
or avoid the liabilities. - This suggests that directors now need to more
clearly understand their roles, duties and
responsibilities and the liabilities attaching
thereto and particularly given the apparent
influence that developments in international law
and corporate governance have on municipal law
and the tendency towards convergence on uniform
global principles of corporate governance.
12iii) From the perspective of the Individual
director and the Board
- Given technological developments,
globalization and economic liberalization, the
tendency by professionals to disclaim liability
and the decision in the American case Federal
Insurance Corporation vs Bierman 2F3D 1424 (1993)
that - Directors are charged with keeping abreast of
the companys business and exercising
reasonable supervision and control over the
activities of the company. A director may
not rely on the judgment of others, especially
.. when an investment poses an obvious risk - It is suggested that directors are now required
to have an adequate knowledge of the business
they direct, and to continuously develop
themselves and their knowledge in that business
and in the field of corporate governance.
13What does good corporate governance aim at?
- The increased profitability and efficiency of
business enterprises and their enhanced ability
to create wealth for shareholders, increased
employment opportunities with better terms for
workers, and increased benefits to stakeholders - Sustainability, and enhanced competitiveness of
business enterprise in the liberalized borderless
global market - The credibility of business enterprise and its
increased capacity to attract inward investments
in an internationally competitive environment
14What does good corporate governance aim at?
- The enhanced legitimacy, responsibility and
responsiveness of the business enterprise within
the economy and improved relationships with its
various stakeholders comprising shareholders,
managers, employees, customers, suppliers, host
communities, providers of finance and the
environment, enhancing its market standing, image
and reputation and - The transparency, accountability and probity of
business enterprise making it acceptable as the
caring, responsible, honest and legitimate wealth
creating organ of society.
15Why the primary focus on company leadership and
directors?
- Mobilising the army requires ability on the part
of leadership. When the leadership is able, then
there will be good discipline. The Art of
War Sun Tzu as translated by Thomas Cleary. - When fish rots, it rots from the head Chinese
proverb. - -If the lead sheep limps, the flock will not get
to the pasture and - - The neck has never gone above the head
Sayings of the Agikuyu people of Kenya.
16Why the primary focus on company leadership and
directors?
- Hence corporate governance primarily addresses
the leadership of business enterprises and seeks
to promote - Leadership for efficiency and effectiveness
- ie leadership for improved strategic and
operational guidance of business enterprises to
ensure efficient use of entrusted resources and
competitiveness in the liberalized global market - Leadership for probity
- ie leadership that is honest, trustworthy and
with integrity such that it commands respect and
credibility and hence can be relied upon to use
entrusted resources efficiently and effectively
by investors, the society and to produce reliable
products by the consuming public
17Why the primary focus on company leadership and
directors?
- Leadership with responsibility
- ie leadership that takes its responsibility to
the various stakeholders seriously and which is
responsive to the legitimate needs of the
community, stakeholders and the nation - Leadership that is transparent and accountable
- ie leadership that has nothing to hide, and
which accounts transparently for the use of
entrusted power, resources and the licence to
operate. - Leadership with focused intelligence to acquire
and apply knowledge and know-how to create and
produce sustainable wealth
18CHALLENGES TO PROMOTION OF CORPORATE GOVERNANCE
IN AFRICA
- Vast developmental needs exist in Africa which
require community mobilization, citizen
engagement and participation and the accelerated
creation of wealth within an environment where
all stakeholders are convinced of fairness,
accountability, transparency and responsibility - For the Private Sector to play its role
effectively as the engine of growth and
development, there is need to ensure that- - Those who lead and run the private sector are men
and women of vision, integrity and accountability
and can be relied upon to exercise leadership,
enterprise and astute judgment in directing
business enterprises - That the business enterprises contribute to the
well being of society, behave responsibly to and
are responsive to the needs of society
19CHALLENGES TO PROMOTION OF CORPORATE GOVERNANCE
IN AFRICA
- The fact that Africa is characterized by very few
quoted public companies, a limited number of
public companies, many family or small private
companies, a multiplicity of state owned
enterprises, a varied number of co-operatives and
co-operative societies and other community based
business organizations not to mention the many
informal sector business arrangements. Suggesting
that principles of corporate governance as and
when introduced should ensure that they do not
disadvantage or indeed create trade barriers for
the quoted companies . - The need to ensure that standards promoted and
implemented are seen as African standards,
developed, formulated and ratified by Africa and
not imposed upon it.
20CHALLENGES TO PROMOTION OF CORPORATE GOVERNANCE
IN AFRICA
- Hence the need to
- Develop systems for monitoring and evaluating
compliance with good corporate governance
practices and strengthening the incentives for
good corporate governance. This demands that at
least in the short term, the society be prepared
to recognize, acknowledge and reward good
corporate governance. - Develop and improve institutions that have the
capacity to implement and enforce best practices
including regulators particularly in the
financial sector and self-regulatory
organizations. - Develop and adopt supervisory arrangements that
effectively place risk management responsibility
with the Board of Directors instead of passing
the same to the supervisory agencies. - Establish well regulated, well functioning and
competitive capital and financial markets which
provide a disciplinary mechanism. - Update and strengthen the legal, judicial and tax
systems
21CHALLENGES TO PROMOTION OF CORPORATE GOVERNANCE
IN AFRICA
- Build capacity to upgrade the capabilities of the
existing leaders of business through advocacy,
awareness raising and training - Prepare a cadre of potential business leaders by
introducing the subject of corporate governance
into education programmes at all levels. - Promote greater public and community involvement
in promoting, demanding and enforcing good
corporate governance - Promote inclusive partnerships for sustainable
wealth creation, that involve the public and
private sectors and civil society - Promote community understanding and acceptance of
the viable business enterprise the organ of
society that creates and produces wealth,
generates employment and hence contributes to the
alleviation of poverty.
22KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- The Private Sector Corporate Governance Trust,
an independent all inclusive, not-for-profit
public Trust was established in March 1999, and
mandated to - Formulate and put in place principles and a
sample code of best practice for corporate
governance in Kenya, East Africa and Africa,
compatible with international standards but
taking into consideration country specific
circumstances - Develop a sustainable institutional mechanism for
the implementation of those principles of good
corporate governance and - Build the national capacity to implement and
apply those principles so as to improve the
national competitiveness for wealth creation and
production and improve the quality of life of
Kenyans in particular and of Africans generally. - The Trust is affiliated to the Commonwealth
Association for Corporate Governance and acts as
the Interim Secretariat to the Pan African
Consultative Forum for Corporate Governance.
23KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- Reason for Being
- The Private Sector Corporate Governance
Trust was established to improve the quality of
life in Kenya, East Africa and Africa generally
by fostering the highest standards of Corporate
Governance that aim at - Improving the strategic leadership and direction
of business enterprises to enhance their
profitability, efficiency and competitiveness in
the global market - Promoting the stability, sustainability,
credibility and attractiveness of the corporate
sector in Kenya , East Africa and Africa as a
priority destination of both foreign, direct and
local investments and hence produce and create
wealth and provide employment opportunities - Ensuring the highest standards of corporate
responsibility, citizenship and business ethics
in an effort to strengthen mutual social
responsibility, enhance the spirit of
participatory development and create partnerships
for progress and increase citizen engagement in
establishing a secure and stable environment in
which business enterprises can grow and thrive.
24KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- The Guiding values, vision and mission of the
Trust - In pursuit of the reasons for its
establishment, the Guiding values, mission and
vision of the Trust are - Guiding values To always act in the best
interests of society in promoting effective and
efficient use of resources in a manner based on
integrity, transparency, accountability and
responsibility. - Mission To develop, promote, encourage and
support the adoption of sustainable best
practices in corporate governance. - Vision To be a leading organization in the
promotion and facilitation of best practices in
Corporate Governance for the economic development
and social transformation of society.
25KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- Objectives of the Trust are
- To promote, stimulate, advocate and co-ordinate
the development, articulation and implementation
of good corporate governance principles and
practices in Kenya , the East African Region and
African Continent - To establish a sustainable Centre for Corporate
Governance to take responsibility for the
effective implementation, policing and
enforcement of compliance with the principles and
practices of good Corporate Governance - To serve as a resource and data centre on
corporate governance - To co-operate, co-ordinate and collaborate with
other organizations with similar aims and
objectives within and without the country to
advance the cause of good corporate governance
and eradicating bad governance practices - To create public awareness and sensitize
corporate leaders and policy makers on the need
for good corporate governance
26KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- To facilitate, assist and promote the carrying
out of research into and studies in any subject
or matter of interest to corporate governance
with a view to identifying and replicating good
practices for enhanced corporate performance and
eradicating bad governance practices - To facilitate and be involved in the development
and implementation of appropriate educational,
training and development programmes aimed at
enhancing the performance of corporate entities,
corporate leaders, and policy makers in all
sectors of the economy - To provide and create an institutional framework
for the evaluation, monitoring, recognition and
reward of good corporate governance practices and
otherwise encourage corporations to embrace
corporate governance principles and practices - To raise funds and other resources from all
possible sources and to set up a
self-perpetuating endowment fund to ensure future
sustainability.
27KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- Membership
- Membership of the Trust is facilitated by the
stakeholders consultative council that is
currently made up of - Business and Trade Associations
- Kenya Association of Manufacturers
- Federation of Kenya Employers
- Kenya National Chamber of Commerce and Industry
- Association of Kenya Insurers
- Fresh Produce Exporters Association of Kenya
- Nairobi Central Business District Association
- Petroleum Institute of East Africa
- Association of Telecommunication Service
Providers in Kenya
28KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- Professional Bodies and Institutions
- A.P.S.E.A. Association of Professional
Societies of East Africa - I.C.P.A.K. Institute of Certified Public
Accountants of Kenya - A.C.C.A.(K) Association of Certified Chartered
Accountants - I.C.P.S.K. Institute of Certified Pubic
Secretaries of Kenya - Law Society of Kenya
- Institute of Bankers
- Kenya Institute of Management
- Civil Society Organizations Trade unions
- C.O.T.U.Central Organization of Trade Unions
- Transparency International
- Action Aid
29 - Regulatory Agencies
- Capital Markets Authority
- Nairobi Stock Exchange
- Central Bank
- Registrar Of Companies
- Individuals and organizations selected on merit
to represent - Business Enterprises
- Academic Institutions
- Professional
- Civil society
30KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- The Private Sector Corporate Governance Trust,
was called upon to implement the strategic
thrusts adopted in March 2000 subject to
availability of funding - Build Appropriate Institutions
- Establish a viable and sustainable Center for
Corporate Governance to take responsibility for
the implementation, compliance and enforcement of
good corporate governance practices in Kenya and
ensure service delivery - Create and put in place the framework for a
viable foundation to ensure the independence,
neutrality, stability and sustainability of the
Center by putting in place reputable agents,
fundraising and asset building.
31KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- Build Institutional Capacity
- Put in place the technical and professional
institutional capacity and capability to steer
and drive the implementation of good corporate
governance practices in Kenya - Strengthen the reputation, image and public
confidence in the Trust by putting in place
prudent standards of corporate governance,
monitoring and evaluation mechanisms, building
national capacity and awareness raising measures
and efficient service delivery to build the
reputation of and create public confidence in the
Trust as a professionally competent, and reliable
institution to guide and promote corporate
governance in Kenya
32KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- Build National Capacity to implement and apply
the Principles of Corporate Governance through - Training and Education
- To build national capacity to implement and apply
good Corporate Governance practices by
facilitating increased range of training
opportunities for directors and potential
directors and by exposing and educating as many
people as possible on good Corporate Governance
principles - Research and Development
- To contribute to the continued improvement and
refinement of the Principles of good Corporate
Governance by studying, documenting and
understanding how current systems operate, the
problems to good governance and the potential for
improvement.
33KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- Monitoring and Evaluation by developing criteria,
mechanisms and systems to monitor and evaluate
the extent to which companies in Kenya embrace,
apply and implement good corporate governance
principles and practices and to assess the impact
that this has on improving national efficiency
and competitiveness in enhanced wealth production
and employment creation. - Advocacy and Communications Programme
- To sensitize, motivate and influence policy
makers, corporate directors and community leaders
to embrace and promote good corporate governance
principles and to motivate the participation and
involvement of the community in actively
demanding good economic governance for
sustainable wealth creation increased employment
opportunities etc through leadership for
efficiency and probity leadership with
responsibility and that is transparent and
accountable in all fields of human endeavour and
in developing a national framework of values,
ethics and ethos for good Corporate Governance.
34KENYAS APPROACH TO PROMOTING CORPORATE GOVERNANCE
- Information and Documentation Centre through
- Establishment of a resource centre and databank
on corporate governance - Publication and communication of research results
and studies showing the impact that bad
governance practices and corruption have on
national economic performance, the quality of
life of the community and on employment
opportunities - Periodic and regular publication of journals and
magazines to facilitate dissemination of
information, exchange of ideas and experiences
and to promote policy dialogue on good corporate
governance.
35WHAT HAS BEEN ACHIEVED?
- The Trust has achieved the following within its
short existence- - Published and distributed The Principles and
Sample Code of Best Practice for Corporate
Governance in Kenya - Corporate governance has now been put on the
Kenyan policy agenda. This is evidenced by the
fact that- - The Central Bank of Kenya now demands good
corporate governance for financial stability and
sustainability from all licenced banks and
financial institutions - The Capital Markets Authority requires all listed
companies to comply with principles of good
corporate governance - Parliament and the public investment committee,
in particular is now reviewing corporate
governance in state owned enterprises - The Government, and specifically the Department
of Government Investments and Public Enterprises
is demanding good corporate governance from all
state corporations and appropriate policy and
legislative changes are being implemented or
initiated
36WHAT HAS BEEN ACHIEVED?
- All Universities are now examining their own
governance practices - Many public, private and state corporations
boards are requesting for seminars or training on
corporate governance - The Non-Governmental Organizations have developed
and are actively debating own governance
standards. - Entered into Collaborative arrangements with
similar Initiatives in Uganda and Tanzania with a
view to build consensus in favour of uniform
principles and practices of good Corporate
Governance in the East African region and
agreement on appropriate policy, regulatory and
institutional reforms necessary to promote good
Corporate Governance - Collaborated with Tanzania, Uganda and the
Secretariat of the EAC to establish the East
African Centre of Corporate Governance
37WHAT HAS BEEN ACHIEVED?
- Initiated collaborative arrangements with the
public and not-for-profit social sectors to
promote partnership for sustainable wealth
creation and organized regional workshop on the
same - Collaborated with African Capital Markets Forum,
United Nations Economic Commission for Africa,
Secretariat for Institutional Support for
Economic Research in Africa and the CACG to
organize the African Consultative Corporate
Governance Forum in Johannesburg held on
16th-18th July 2001 with the support of the GCGF,
CIPE, the World Bank and the Commonwealth
Secretariat, and where it was requested to act as
the Interim Secretariat for the Pan-African
Initiative.
38WHAT HAS BEEN ACHIEVED?
- Hosted, organized or facilitated various
international conferences including - The East African Regional Workshop on Corporate
Governance held in Arusha in April 2000, - The Regional Corporate Governance Conference for
members of Parliament on 27th- 28th October 2000, - The African Consultative Forum on Corporate
Governance on 30th October 2000, - The Commonwealth Association for Corporate
Governance 3-day convention held over the period
31st October and 2nd November 2000, - The two-day workshop on Corporate Governance in
the Financial Sector held on 1st-2nd November
2000.
39WHAT HAS BEEN ACHIEVED?
- Has successfully conducted 5-day residential
training courses for directors as follows - May 2001 at Nairobi with CACG support,
- Mombasa in September 2001,
- Nakuru in November 2001
- Nairobi in February 2002.
- Has conducted 2 day intensive Training of
Trainers course for 12 potential trainers in
February 2002 - Has held consultative meetings with various
professional associations and hopes to introduce
corporate governance as a subject of study in
many of the professional courses offered by these
professional bodies - Has developed post graduate and diploma
curriculum and initiated discussions with local
universities with the objective of facilitating
introduction of diploma and graduate courses in
corporate governance
40WHAT HAS BEEN ACHIEVED?
- Carried out a study on the role of social
dialogue and industrial relations in enhancing
good corporate governance for sustainable
development - We have in Collaboration with the Central Bank
and the Capital Markets Authority Initiated a
study on Corporate Governance for Financial
Stability in the Banking and Financial Sector - Undertook a study on corporate governance in
Public and Private Universities in Kenya the
report of which was circulated to Universities
and a workshop held on Corporate Governance in
Public and Private Universities in November
2001. - Undertook a study on corporate governance in
public and state corporations in Kenya the report
of which was circulated to the Government and
State Owned Enterprises for comments and a
workshop held on Corporate Governance in Public
and State-Owned Corporations in January 2002 to
discuss those guidelines.
41WHAT HAS BEEN ACHIEVED?
- With funding from the Center for International
Private Enterprise (CIPE), the Trust organized a
technical workshop for shareholders January 2002,
launched a Shareholders Association and held a
national convention on corporate governance to
promote public awareness in Corporate Governance.
-
- On the wider front various other players have now
introduced recognition and reward programmes that
seek to identify business enterprises that excel
in performance for example the Company of the
Year Award co-ordinated by the Kenya Institute of
Management the best CEO and Company of the Year
Award co-ordinated by the Nation Media Group and
PriceWaterHouseCoopers the best accounts of the
Year co-ordinated by the Institute of Certified
Public Accountants of Kenya (ICPAK), all of which
in some measure address aspects of good corporate
governance.
42WHAT HAS BEEN ACHIEVED?
- There is enhanced consultation on issues of
corporate governance between the government, the
private sector and the Trust. Whether this has
resulted in improved corporation and national
economic performance is not clear at this stage.
43WHAT ROLE FOR DEVELOPMENT PARTNERS?
- Standard setting and or agreement on standards is
at best the very initial step in the
implementation of good corporate governance
principles. It is critical to put in place the
institutions, mechanisms and processes that would
facilitate implementation of good corporate
governance practices on a regional and country
basis. - Development partner support is required to assist
in the establishment of institutions, and in
building institutional and national capacity to
implement whatever principles or standards that
are adopted. - It is also critical that development partners
integrate and demand good corporate governance in
all the programmes that they support.
44WHAT ROLE FOR DEVELOPMENT PARTNERS?
- Development partners are therefore requested to
come to the aid of Africa by providing technical,
material and moral support in this process of
promoting, implementing and enforcing good
corporate governance. - In conclusion corporate governance is seeking to
promote and facilitate citizen engagement in the
creation and production of wealth, promote
enhanced ownership of viable business enterprises
and foster vigorous economies in Africa which
can competitively trade with the rest of the
world, - Let us all remember that employment is the only
assurance that can facilitate the involvement and
participation of the majority in the development
process and that unless poverty is eradicated
through sustainable wealth creation the world
cannot remove the enclaves of poverty which
encourage ill feelings towards the rich,
fostering the development of international
terrorism.