The Financial Reporting Council of Nigeria (FRC) recently released the National Code of Corporate Governance; the first of its kind in Nigeria which makes provision for all corporate entities in the Country. The unified code is made up of the Code of Corporate Governance for the Private Sector, the Code of Corporate Governance for the Public Sector, and the Not for Profit Organisations Governance Code.
The National Code is the outcome of the directive given to the Steering Committee on Corporate Governance on 17th January, 2013 by the Honourable Minister of Trade and Investment. This directive was aimed at the development of a National Code of Corporate Governance which would enable the FRC to promote the highest standards of corporate governance, encourage sound systems of internal and information systems control to safeguard stakeholders' investment and assets of public interest entities, promote sound financial reporting and accountability based on true and fair financial statements duly audited by competent independent Auditors, and act as the national coordinating body responsible for all matters pertaining to corporate governance in both private and public sectors of the Nigerian economy, amongst other functions.
Some of the provisions of the Code are therefore directed towards further strengthening of all the superseded Corporate Governance Codes. This is to usher in a unified Corporate Governance Code with governance safeguards that are more country-specific, contextual and environmentally congruent, while at the same time conforming to international best practices. A release from FRC stated that the Code of Corporate Governance for the Private Sector is mandatory while that of the Not-for-Profit entities will be operated on the "Comply or Justify non-compliance" basis in a manner similar to the United Kingdom's Code.
Although the Code(s) were to take effect from 17th October, 2016 (except the Public Sector Code which is subject to an executive director being secured from the Federal Government of Nigeria), it has however been suspended as a result of the court injunction meted out on the FRC preventing it from embarking on further consideration of the draft Corporate Governance Code. Some of the key features of the Code(s) which are worthy of note are summarised as follows:
Private Sector Governance Code
The Governance Code aims at promoting accountability, adequate disclosure, transparency, integrity and most importantly, minority shareholder and stakeholder protection. However, it creates a higher burden for businesses as it provides strict rules that must be adhered to, making compliance more difficult. Section 37 of the Code provides for the enforcement of its terms, with the application of sanctions against the erring person and or corporation as the punishment for flouting the terms. It must be mentioned that the code only mentions the application of sanctions generally without stating clearly what sanctions would be applied; the onus of arriving at the sanctions lie with the FRC and the sectoral Regulator where applicable.
- Section 2.1 of the Code states that it shall be applicable to all public companies (whether listed or not); all private companies that are holding companies or subsidiaries of public companies; and regulated private companies as defined in section 40.1.14 of the Code.
- Every Company shall be headed by a Board that shall govern, direct and be in effective control of its affairs and every Board shall have a Charter setting out its responsibilities.
- The Board shall include an appropriate combination of executive and non-executive directors (and, in particular, independent nonexecutive directors) such that no individual or group of individuals can dominate the Board's decision-making. There is no such provision under the Companies and Allied Matters Act (CAMA).
- The composition of the Board shall not be less than eight (8) and the number of directors shall not be more than a third of the Board. However, regulated private companies that are not holding companies or subsidiaries of public companies shall have a Board membership of not less than five (5) out of which three (3) shall be non-executive directors (of which a majority shall be independent non-executive directors).This provision is at variance with the provisions of CAMA, which provides in Section 246 that the minimum number of directors on the Board of a company shall not be less than two (2). There is therefore a need for this contradiction between the codes to be clarified and common ground reached to ensure that it does not confuse the average businessman/woman operating a company and more importantly, to ensure that such codes conform with the provisions of the supervening laws and regulations.
- Section 6 provides for the various officers of the Board, these include the Chairman, the Lead Independent Non-Executive Director, the Managing Director/Chief Executive Officer, the Company Secretary, the Executive Directors, the Non-Executive Directors, and the Independent Non-Executive Directors. CAMA only provides for Managing Directors and the Chairman of the Board. All other positions are not provided for.
- The position of a Regulator is mentioned, however it must be stated that not all the industries in the country are strictly regulated and have a Regulator, such industries, where the Code has set out certain tasks which should be performed by a Regulator, who would perform that role? This is a question for the FRC.
- The Board is expected to meet at least once every quarter and every director is required to attend at least two-thirds of all Board meetings. This again, is at variance with the provisions of the CAMA, which allows directors to call meetings at their behest.
- Every Board is to establish committees (Nomination and governance committee, Remuneration committee, Audit committee and Risk management committee).CAMA does not provide for Board Committees.
- The Board is responsible for the oversight of enterprise-wide risk management.
- All companies shall have an effective risk-based internal audit function and where not established, sufficient reasons must be disclosed in the company's annual report and explanation as to how internal control processes will be implemented.
- The Code contains whistle blowing provisions that encourages stakeholders to bring unethical conduct and illegal violations to the attention of an internal and/or external authority for action to be taken to verify the ethical violation, apply appropriate sanctions and avoid re-occurrence.
- Recommendations for the appointment of external auditors are to be made by the Statutory and Board audit committees (either independently or jointly where they co-exist).
- The Board is to establish a system of constant dialogue with shareholders based on mutual understanding of the objectives of the company.
- The Board is to ensure that shareholders' statutory and general rights are protected at all times.
- Institutional shareholders are to demand compliance with the provisions of the Code and report to the regulator where non-compliance is observed. CAMA supersedes the provisions of the Code and there are varying and contradictory provisions which must be reconciled, otherwise a breach of the Code but conformity with CAMA cannot be validly challenged.
- In order to protect minority shareholders and other external stakeholders, by virtue of the provisions of Section 28 of the Code, insiders are precluded from engaging in transfers of assets and profits out of companies for their personal benefits or for the benefit of those who control the companies.
- Insider trading in breach of fiduciary duty and other relationship of trust and confidence is precluded.
- Related party transactions must be disclosed at all times.
- Companies must pay close attention to the interests of their stakeholders.
- Companies must strive to achieve international best practices and therefore must engage in full disclosure of all the matters set out in the Code.
- Every company shall carry out annual corporate governance evaluation which shall be facilitated by an independent external consultant who must be registered by the regulator for this purpose.
- Every company shall have a Code of Business Conduct and Ethics, which shall be regarded as part of the corporate governance practices of the company.
- Compliance with the provisions of the Code is mandatory. Accordingly, violations of the provisions of the Code will occasion both personal sanctions against the persons directly involved in the violation, and sanctions against the companies or firms involved in such violation. Section 37 states that the enforcement of the code shall be the responsibility of the FRC and sectoral regulator, where applicable.
Public Sector Governance Code
This Code extends corporate governance to public sector entities as well as Government Ministries and Departments thus reverting to a 'top-down' strategy which the nation should have used ab initio. This 'top-down' strategy is based on the corporate governance mantra "tone at the top", meaning corporate governance and its key underlying values ought to start from the very top, that is from the government, its agencies and the myriad of state-owned entities. This is in complete consonance with the water phenomenon, corroborated by science, that water unaided cannot climb, but it can permeate or move downwards unaided, when poured freely. It is this downward free movement of corporate governance practices and values from public sector to the private sector that this new corporate governance "top-down" strategy is designed to achieve. This will further strengthen the ability of citizens to evaluate the role of government, and in the process transform dramatically the way government relates with and does business through its agencies. The Code is a welcome development as it seeks to ensure the highest standards of transparency, accountability and good corporate governance, without unduly inhibiting enterprise and innovation. However, with the various arms of Government currently grappling with the adverse effects of dwindling oil revenue, which today accounts for about ninety-five percent (95%) of the country's income, it is doubtful that public sector entities as well as Government Ministries and Departments, would adhere with the provisions of the Code as the cost implications may prove to be too cumbersome to bear.
- The Code is applicable to all Ministries, Departments and Agencies of Government; all State-Owned Entities; all parastatals; and all government commercial agencies. All these entities were collectively referred to as "Public Sector Entities" or "PSEs" in the code.
- Section 7 provides that government should not be involved in the day-to-day management of PSEs and should allow them full operational autonomy to achieve their objectives which should be clearly defined by government acting as owner. How this will be enforced in reality without specified mechanisms set in place is unknown.
- The above provision contradicts with Section 8 which provides that Government, acting as owner on behalf of the State, is to set out the role and responsibilities of the Board as a whole and of individual directors whilst considering areas of potential conflict of interest between the Government's regulatory responsibilities as government on the one hand and its ownership responsibilities on the other. With the Government taking an active role in steering the functions of the board, it is difficult not to expect Government to be involved in the day to day affairs of PSE's. Government's regulatory responsibilities will certainly conflict with its ownership responsibilities.
- Section 9 of the Code provides that the Board of the PSE has absolute responsibility for its performance and is fully accountable to government for such performance. In concurrence with the Government, the Board is to appoint the Chief Executive Officer. Again, this function should be within the strict purview of the Board without government interference. This would ensure transparency and also ensure that the best person for the role, with the best interests of the PSE, is appointed.
- The Board is expected to maintain the highest standard of integrity, responsibility and accountability and ensure that it conforms to corporate governance principles while optimising the performance of the PSE.
- Section 10 of the Code provides that the Board of directors of PSEs should be made up of a combination of executive directors and nonexecutive directors (that is, government institutional directors, independent nonexecutive directors and nominee directors) such that no individual or small group of individuals can dominate the board's decision-taking. CAMA does not provide for the composition of the Board or recognise executive and non-executive directors.
- The number of executive directors on the Board of the PSE is not to be less than two (2) of which one should be the CEO. Executive Directors should not be more than one-third of the entire board of a PSE. Non-executive directors on the Board of PSEs should not be less than two-thirds of the entire Board. Independent non-executive directors on the Board of a PSE should not be less than half of the number of non-executive directors. It should be noted that this is inconsistent with the provisions of CAMA which stipulates that the minimum number of Directors, on the Board of every company shall not be less than two (2).
- The positions of the Chairman of the board and the Chief Executive Officer (CEO) of a PSE shall be separate such that one person shall not combine the two positions in a PSE.
- Government is to appoint one of the board members who should preferably be an independent non-executive director as the chairman of the board. This depicts the highly involved role of government in the operations and management of the PSE's which the Code seeks to dilute.
- Government is also to appoint the Chief Executive Officer whose role will focus on the management of the PSE. This does not assure full operational autonomy as envisaged by the Code.
- Each director's appointment should be in writing and for a definite term. It further states that in the event of a PSE not performing satisfactorily, the Government may initiate prompt remedial action, including dismissal of the directors of the PSE. This provision can be a two edged sword as the Government of the day may decide that a Board which does not favour it, is not performing satisfactorily and therefore decide to dismiss it. This provision is inconsistent with the mode of appointment of directors as contained in CAMA, which stipulates that the number of directors and names of the first directors shall be determined in writing by the subscribers of the memorandum of association or a majority of them or the directors may be named in the articles. For subsequent directors CAMA provides that members at the annual general meeting shall have the power to re-elect or reject directors and appoint new ones.
- The Board is expected on an annual basis and as the circumstances of the PSE may determine to, review its size, mix of skills, expertise and experience and other qualities in order to measure its performance levels in relation to the requirements of the Government or its owners.
- Every PSE is to establish the following Committees: Audit and Risk Management Committee, Finance and General Purpose Committee; and Governance Committee. It should be noted that CAMA does not provide for the creation of any such committees.
- Every PSE and its committees should have a formal annual calendar and meet at least once every quarter, subject to a maximum of eight meetings respectively in a year. As regard to quorum, the code stipulates that where the quorum for a board meeting is not specified in the enabling instrument establishing the PSE, a quorum should be set by the board taking into account the need to have a majority of nonexecutive directors in attendance at meetings. In the case of committee meetings, the quorum for such meetings shall be set by the board when such committees are being established. This provision contradicts with the provisions of CAMA, which grants directors the right to regulate their meetings as they deem fit. With regard to quorum, CAMA provides that unless the articles otherwise provides, the quorum necessary for directors shall be two (2) where there are not more than six (6) directors, but where there are more than six (6) directors, the quorum shall be one third of the number of directors, and where the number of directors is not a multiple of three, then the quorum shall be one-third to the nearest number.
- Every PSE is to prepare a directors' report with the contents of such report as stipulated in Section 28 of the Code.
- Boards of PSEs should ensure that an effective internal control framework is put in place.
- Every PSE should have an Internal Audit Unit, which is to be headed by a suitably qualified professional who can be registered by the regulator. It further stipulates that the internal audit should be under the control and direction of the ARM committee.
- The Board of every PSE is to appoint an external auditor from a list of audit firms provided by the Auditor General for the Federation, and the responsibility of the external auditor is to audit the financial statement of the PSE.
- The board of every PSE should develop and adopt a formal Code of Conduct and Ethics defining the standards of behaviour to which directors, management, employees and third parties doing business with the PSE are required to subscribe.
- Every PSE should have a whistle-blowing policy which should be known to employees, stakeholders such as contractors, customers, service providers, creditors, shareholders, job applicants and the general public.
- Every PSE should publish an annual report within the time frame specified in its enabling instrument or, where there is no such provision in its enabling instrument, not later than six months from the end of the financial year covered by the annual report.
- The annual report of every PSE is to contain disclosures on several issues such as Governance and Board Oversight, Accounting, External Audit, Risk Management and Control, Conflict of Interest/Related Party Transactions and Sustainability.
- The Code seeks to promote corporate governance practices within Ministries and Departments and their stewardship over PSE's with emphasis on external contribution and oversight over strategy and implementation.
- The Code provides for the creation of a Ministerial Management Committee (MMC), whose responsibility shall be to ensure high standards of corporate governance in Government Ministries and Departments (M&Ds) and PSEs, whether in the commercial or non-commercial sectors, which are critical to ensuring positive contributions to the country's overall economic growth, efficiency and competitiveness.
Not for Profit Organizations (NFPO) Governance Code
The Not for Profit Sector in Nigeria is a robust and continuously growing part of national development. This sector relies on the benevolence of the public and incentives by government for its survival. As the number of organisations in this sector surges upward, it has become imperative for the establishment of some regulatory structure to monitor and regulate how these organisations are run. At the heart of the concept of corporate governance is resource control. The NFPO governance code has been established to ensure that the resources in these organisations are utilised for the purpose for which they were set up. It aims to monitor and hold officers of these organisations accountable for their decisions made whilst managing these organisations.
- The Code seeks to deal with donor trust and mission fulfilment in terms of what is known as 'blind or faceless money' and how it breeds mistrust between donors and the governing board, especially when the mission is not being implemented and the vision is not being realised.
- The Code deals with the vision and mission of the NFPO and acknowledges that determination and formulation of the vision and mission statement of the NFPO is the responsibility of the board of a NFPO.
- The Code invoked Founders of NFPO's and conflicts that could arise by advocating for a more independent management structure rather than one-person management where the Founder has absolute power and is usually not accountable to anyone.
- The Code advocates for a formal structure of NFPO's with established Charters and enabling documents to guide management in running its affairs.
- The Code applies to all NFPO's whatever description or nomenclature adopted. The scope of the code is broad and covers a range of organisations. As for compliance, the code encourages that NFPO's comply with its principles or justify non-compliance as the case may be. This is quite different for the public sector where compliance with the codes is mandatory. However, what is certain is that the codes cannot be ignored. NFPO's must either comply with the code or justify its non-compliance.
- Part C, which contains the most provisions in the code with 17 paragraphs and deals with board matters. In this part the various arms in the organizational structure are mentioned and described. It also clearly defines individual roles and duties/functions of important officers in the organisation. The part of the code is similar to the public sector code. For example in this part of the code, there is separation of powers among the positions of Chairman of the Board of Trustees, Chairman of the Governing Board and the Chief Executive Officer.
- Paragraph 16 sets out the conditions for the appointment and removal of directors.
- The Code provides that the board could carry out its duties and responsibilities through committees. The board is responsible for the number and composition of such committees. Board of Directors operating through committees is an effective way of dealing with specific responsibilities, which may be more suited to some board members more than others depending on their experience and expertise. For example, having a board member with financial expertise and recent experience on the AUDIT AND RISK MANAGEMENT BOARD COMMITTEE will enable the Board perform its oversight function more effectively.
- The Chief Financial Officer is to prepare the annual financial statement in line with approved framework of accounting and financial reporting issued from time to time by the FRC. The statements are to be reviewed by the Audit and Risk Management Committee and thereafter approved by the Governing Board.
- The Audit and Risk Management Committee has the responsibility of recommending an external auditor for appointment or removal by the governing board.
- The Code stipulates whistle blowing policies and encourages the Board of every NFPO to set up a whistle blowing framework within the organisation where any stakeholder is free to report any form of illegal practice or unethical behaviour.
- Part of the policy also entails protecting the informant from possible retaliation and backlash. Whistle blowing policy has become an important aspect of corporate governance for public institutions in recent years in light of the financial mismanagement and recklessness that rocked the global economy in 2008. It is left to heads of organisations to set up these frameworks within their organisations to promote high standards of transparency and accountability. It is expected that the existence of such frameworks will also prevent stakeholders from engaging in unethical behaviour and malpractice.
- The Code provides that NFPO's should strive for a healthy relationship with its stakeholders i.e. donors, funders, beneficiaries, regulators etc. The NFPO's can do this by effective communication about the organisation's activities; and engaging stakeholders in planning and decision-making. It is important to constantly engage relevant stakeholders, especially donors, so that they can see that their contributions are having an impact and making a difference in achieving the vision of the NFPO.
- The Code stresses the need for accountability, transparency and adequate disclosure to relevant stakeholders. The NFPO's should as much as possible provide access to all relevant information about the organisation and its activities. Such measures enable stakeholders hold directors of NFPO's accountable for their actions.
- The Code deals with other industry specific regulators and its supporting legislation namely; INEC and the Electoral Act; CAC and CAMA; the Registrar of Trade Unions Trade Unions Act. The code recognizes the authority of these bodies to regulate NFPO's under its specific purview.
- The Code emphasizes the need for disclosure of relevant information to various stakeholders. This is to ensure that the stakeholders monitor the organisation.
- Every NFPO is to carry out annual corporate governance audit, which should be facilitated by an independent external consultant who must be registered by the regulator for this purpose.
BUSINESS IMPLICATIONS OF ADHERENCE TO THE NEW CODE
- Most NFPO's, which have been operating a fairly informal structure, will have to undergo some corporate restructuring to be in compliance with the new code. This will lead to increased cost of operation of the organisation
- As was mentioned earlier, the Not for Profit Sector relies on the benevolence of the public and occasionally the government for its survival. Refusal to adhere to the new code could lead to loss of patronage by potential donors or investors in the Not for Profit Sector.
Conclusion and Recommendations
The National Codes of Corporate Governance as spilt in targeted business segments is a welcome development but fraught with overlapping and far reaching provisions contrary to existing supervening laws and policies. The rigid structure of the Code in its rules-based format should be amended to adopt a principles-based approach to accommodate existing corporate governance structures within organisations. The Code should serve as a guide and complement rather than override existing corporate governance structures, which if subsumed will deter business relations especially in light of the fact that the proposed National Code of Corporate Governance is at odds with the substantive provisions of CAMA which is the principal legislation governing companies in Nigeria.
More specifically, the private sector code has to be reviewed and streamlined to conform with the provisions of CAMA in guiding the private sector on governance matters.
The public sector code must harmonize into a common legislation the existing codes governing the various government agencies and parastatals which might prove to be an arduous task.
The NFPO Code of Corporate Governance is however a welcome development given the fact that NFPO's were previously unregulated. The code itself seems well detailed and has covered most of the basic and important corporate governance principles. Adherence to the code however, is something that is yet to be determined as compliance as stated in the code is not mandatory.
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