From 16 to 19 November 2022, the second edition of the International Forum of Law and Accounting Professionals (FIPROD) will be held in Kigali, Rwanda, on the theme: “Economic development and the challenges of business financing in Africa“. The choice of Rwanda to host this second edition of the Forum raises questions when one knows that Rwanda is not a member of the Organisation for the Harmonisation of Business Law in Africa (OHADA) which is the initiator of this Forum with ERSUMA. Should we see it as a seduction operation to try to convince Rwanda to join OHADA when we know that in 2010, a note entitled “Call for the accession of Burundi and Rwanda to OHADA” was published on the OHADA website.
The author of the note calls “for the mobilisation of the community of lawyers of BURUNDI and RWANDA and more generally for the international community of lawyers to mobilise all the lawyers concerned so that BURUNDI and RWANDA, whose legal system is very close to that of the DRCONGO, join in their turn the dynamics of unification of business law undertaken within the framework of OHADA” and expresses “from the bottom of my heart the wish that the jurists of both Burundi and Rwanda examine the issue serenely, without prejudice and without preconceived ideas, and advise the leaders of the two countries on the best choice“.
More than 10 years after this call, it would be appropriate on the occasion of the forthcoming Forum to question the ins and outs of Rwanda’s membership in OHADA. As a lawyer, should we advise Rwandan leaders to join OHADA? This is a question of great interest when one knows that the choice of whether or not to join OHADA will completely change the business climate and the security of investments in Rwanda.
OHADA IN BRIEF
OHADA was created by the Treaty on the Harmonisation of Business Law in Africa, adopted in Port Louis on 17 October 1993, to guarantee legal and judicial security of the business environment in Africa with a view to promoting investments. This is what justifies President KEBA MBAYE’s statement that “ l’OHADA a une origine africaine et sa raison d’être est économique tout simplement “.
To briefly present OHADA is to talk about its legislative power and its jurisdictional role through the Common Court of Justice and Arbitration, abbreviated to CCJA.
Thus, from a legislative point of view, OHADA is intended to legislate in all sectors of business law and to expand over time. In this sense, Article 2 of the OHADA Treaty gives a non-exhaustive list of the fields concerned by unification in these terms: “For the application of this Treaty, all the rules relating to company law and the legal status of traders, debt collection, securities and enforcement procedures shall fall within the scope of business law, the system of company reorganisation and judicial liquidation, accounting law, the law of sale and transport, and any other matter which the Council of Ministers may unanimously decide to include in it, in accordance with the purpose of this Treaty and the provisions of Article 8. ”
Therefore, the number of Uniform Acts has increased from 08 in 2004 to 10 in 2017. From now on, the Uniform Acts relate to Mediation, Arbitration Law, Accounting Law and Financial Information, Organisation of Collective Debt Recovery Procedures, Commercial Company Law and Economic Interest Grouping, General Commercial Law, Organisation of Securities, Cooperative Company Law, Contracts for the Carriage of Goods by Road, and Organisation of Simplified Recovery Procedures and Enforcement Measures. The Uniform Acts thus constitute the law applicable to business relations in the member states. These Uniform Acts are directly applicable and binding in the Member States, notwithstanding any previous or subsequent provision of domestic law to the contrary, in accordance with Article 10 of the OHADA Treaty.
Concerning the CCJA, it sits in Abidjan and gives final rulings in matters of OHADA law. In a purely judicial framework, the functions of the CCJA are both contentious and advisory. Also, in the context of its advisory functions, the court gives its opinion on the draft of Uniform Acts before they are submitted to the Council of Ministers for adoption. The Court may also be consulted by any Member State or by the Council of Ministers on any question relating to the application or interpretation of OHADA law. It should be noted that the opinions issued by the Court are merely advisory and have no binding effect.
With regard to its contentious competence, the CCJA deals with all disputes relating to the various areas of OHADA law. It may be seized in three distinct cases; firstly, directly by a party wishing to contest a decision of a court of appeal ruling on the merits of a case relating to the application of a Uniform Act. Secondly, it can be seized by a party who considers that a national court ruling in cassation has disregarded the jurisdiction of the CCJA. Finally, the CCJA may be seized by a national court ruling in cassation and considering itself incompetent to hear the case when it raises questions relating to the application of a Uniform Act.
The CCJA therefore rules on the merits of the case at last instance without referring the case to an appellate court, and its judgments have the force of res judicata at last instance; moreover, these judgments are also enforceable in the territories of the member states.
It is also important to note that the CCJA is also an arbitration centre whose rules of procedure have been modified by the reform of November 23, 2017, which also amended the Uniform Act on Arbitration and introduced a Uniform Act on Mediation.
BUSINESS LAW IN RWANDA: ECONOMIC IMPACT AND COMPARISON WITH OHADA
Business law in Rwanda is a scattered set of laws. It is difficult to list exhaustively the different texts that make up Rwandan business law, but they are mostly internal. From a jurisdictional point of view, business law issues are mainly decided by the commercial courts, namely the Commercial Court and the High Court of Commerce.
As mentioned above, the purpose of business legislation is to secure and promote investment, to create a safe business climate. In this sense, if one refers to the World Bank’s Doing Business 2020 ranking on ease of doing business, Rwanda ranks 39th, while of the OHADA member countries, the best placed, Togo, ranks 97th, with OHADA estimated to rank 154th. This means that it is easier to do business in Rwanda than in any of the OHADA member countries.
The question is however whether Rwanda’s ranking is simply a result of economic and administrative policies, or whether legislation and the judiciary in general have something to do with it.
As far as the judicial sector is concerned, Rwanda ranks 32nd and 62nd respectively in commercial dispute resolution and insolvency resolution, mainly due to the speed and simplicity of procedures. On the other hand, among OHADA member countries, the best place in terms of commercial dispute resolution goes to Ivory Coast ranked 94th for an overall average positioning of OHADA at 149th place. In terms of resolution of insolvency issues, the overall average places OHADA in 126th place, with the highest ranked country being Ivory Coast in 85th place.
It is tempting to say that this position of Côte d’Ivoire is justified by the fact that the highest court of OHADA is located on its territory. When we know the status of small entrepreneurs and traders in the OHADA area, how many can afford to follow a procedure to the end given the legal costs, lawyers’ fees, travel expenses, accommodation etc… Having practised in Cameroon, very few clients can afford to continue a procedure once it is necessary to go before the CCJA.
As far as legislation is concerned, Rwanda is also in a good position according to the Doing Business report since it is ranked 114th in terms of protection of minority investors by the texts in force in the field of company law. Among OHADA member countries, the best place goes to Guinea Bissau and Senegal, also ranked 114th, with an average rank of 141st.
This is an opportunity to recall a criticism that has long been made of OHADA, both by novice lawyers and by eminent professors and researchers in law, namely the immunity from execution of legal persons under public law. Indeed, it appears from the provisions of article 30 of the AUPSRVE that: “Enforcement and conservatory measures are not applicable to persons who benefit from an immunity of execution.
However, the debts which are certain, liquid and due of legal persons of public law or public companies, whatever their form and mission, shall give rise to compensation with the debts which are also certain, liquid and due of anyone who is liable to them, subject to reciprocity.
The debts of the persons and companies referred to in the preceding paragraph may only be considered as certain within the meaning of the provisions of this article if they result from an acknowledgement by them of these debts or from a title which is enforceable in the territory of the State where the said persons and companies are situated.”
The purpose of recovery procedures is to enable the creditor to recover the object of the claim from the debtor, if necessary by compulsory execution. It sometimes happens that a debtor is recalcitrant in the performance of his obligation and thus forces the creditor to seek compulsory execution. In principle, this is a guarantee to the creditor that he will always be able to recover his debt, by virtue of the idea that any debtor may be subject to attachment. However, this guarantee is disregarded when the creditor’s debtor is a person who benefits from immunity of execution. This is the case for “legal persons under public law or public companies” which, according to Article 30 of the AUPSRVE, benefit from immunity from execution, i.e. “enforcement and conservatory measures are not applicable to them.”
The absolute immunity of execution of moral persons of public law enacted in article 30 of the AUPRSVE however defeats the legal means envisaged to protect the creditors from the recalcitrance of their debtors, so that one ends up “with an injustice or squarely with a kind of denial of justice“ since the immunity of execution undermines the effectiveness of the decisions and by ricochet the right to a fair trial. Indeed, according to the European Court of Human Rights: “the right of access to a court would be illusory if the internal order allowed a final and binding decision to remain inoperative to the detriment of a party“. This is obviously an obstacle to investment in the OHADA zone, and it is worth recalling that this immunity has ruined a number of Cameroonian companies.
On the contrary, in Rwanda, the code of civil, commercial, labour and administrative procedure provides in its article 183 that: “When a court decision that has become final has condemned the State, the City of Kigali, the District or a public institution or body to pay a sum of money, the amount of which is fixed by the decision itself, this sum must be paid within six (6) months from the date of the notification of the judgment.
If the available funds are insufficient, the payment is made within the limits of the available funds. The resources necessary to complete it must be provided for the following financial year and the payment made within the first six (6) months of the financial year. ”
Following this, Article 184 specifies that: “The administrative authority that has failed to execute the judgment may, at the request of the interested party, be summoned to appear before the court that handed down the decision, so that it may explain the reasons that have prevented execution.
If the reasons invoked are found to be justified, a maximum period of time within which the judgment must be executed shall be granted, taking into account the circumstances.
If the reasons invoked are not justified or if the time limit granted in accordance with paragraph 2 of this article has not been respected, the court that handed down the decision shall set a penalty payment that shall be borne by the administrative authority itself, as long as the judgment is not executed. ” This is therefore a kind of guarantee for the investor that he will be able to recover his debt regardless of his co-contractor, a legal person under public law.
In the light of the above, one would be tempted to hastily conclude that Rwanda does not need to join OHADA, but this would be a bit hasty. For it should be recalled that OHADA is today 17 countries that have decided for good reason to join the Organisation. Indeed, whatever one may say, OHADA has made it possible to secure and regulate the business sector in Africa, even if there is still some way to go. The enthusiasm it has aroused is sufficient proof of its present and future importance.
Indeed, in a context of globalisation and the establishment of an African Continental Free Trade Area (AfCFTA), a uniform business law for the whole continent would be a major strength. In this sense, Rwanda and the rest of the African countries should consider joining OHADA. But for the time being, Rwanda has no interest in joining OHADA, as it still has gaps to fill, not only in terms of legislation but also and especially in terms of its organisation and functioning. In the digital era, it is clear that OHADA is lagging behind, even though part of the problem raised above, linked to the existence of a single seat for the CCJA, could be solved thanks to the digitalisation of proceedings.