The 2020 CAMA and Beneficial Ownership in the Extractive Industry
Communications
September 3, 2020
By Charles Uche ESQ
Incorporating and fronting companies is a convenient and effective way of concealing identity, engaging in illicit transactions and evading liabilities. In many countries, a company can be formed without disclosing the identity of the individual who ultimately controls or profits from the business, i.e., the beneficial owner. Criminals and politically exposed persons (PEPs) can assign “nominee” shareholders to be listed on official documents or can list other legal entities (other companies can be shareholders in a company) as the “owners,” thereby creating a chain of companies–often across borders–that can be difficult for investigators and law enforcement to trace and recover.
Connected Development (CODE), has over the year, through its Conflict & Fragility project, in partnership with Oxfam-in-Nigeria advocated for a robust beneficial Ownership transparency through the instrumentality of a robust legislation as an essential means for combating corruption, stemming illicit financial flows, and fighting tax evasion. While many initiatives exist to maintain and disclose beneficial owners of companies in Nigeria, like the Beneficial Ownership Register launched by Nigeria Extractive Industries Transparency Initiative (NEITI) in December 2019, none of them until the enactment of the 2020 Companies and Allied Matters Act (CAMA) had the statutory backing for enforcement.
Documents from Panama papers on Dan Etete and Kolawole Aluko can be used as classical case studies in demonstrating how these two individuals, like many others, capitalised on the non-existent or fragile regulatory framework in Nigeria’s extractive “oil & gas” sector to launder money and evade liabilities which has cost the Nigerian government and people revenue in the billions of dollars. Till date, none of the aforementioned persons has been successfully prosecuted and convicted partly due to concealment of identities and fronting of shell companies in their transactions. Shell companies are legal entities “companies” that are non-operational and lack assets or staff. They are conveniently used by money launderers to keep their identities hidden while they engage in illicit transactions across borders and evade tax.
Dan Etete: Dan Etete, a former Petroleum Minister under Nigerias Dictator Head-of-State, Gen. Sani Abacha had in 1998, incorporated a Shell company named “Malabu Oil & Gas Limited” using a fictitious name “Kweku Amafegha”, with few other persons, while he was the ultimate and beneficial owner of the company – though his real name did not appear in any official documents. Five days after he incorporated this company, he, as Petroleum Minister, awarded this company an oil block “OPL 245”. He used this shell company to launder money across the Nigerian border and acquire luxurious assets, while escaping liabilities.
Kolawole Aluko: Kola Aluko is a businessman and oil executive. Media reports have described Aluko as a key ally to Alison-Madueke, a relationship both have previously denied. He rose to prominence around 2011 when Nigeria’s government awarded two companies he founded or owned valuable oil blocks on a no-bid basis. One of his companies, Atlantic Energy, was created the day before it inked the deals to acquire multimillion-dollar oil licenses.
In Nigeria, only a member of a Public Company (PLC) was under obligation, under the old 1990 CAMA, to disclose in writing when required, the capacity in which he holds any shares in the company; either as a beneficial owner or as a nominee of an interested person. See Sections 94-98, old CAMA.
The 2020 CAMA in section 119 has extended such obligation (to disclose the particulars of shareholding by notifying the company) to persons with significant control in all companies. Similarly, as provided in section 120 of the new CAMA, a person who is a substantial shareholder in a public company and holding (either by himself or by his nominee/proxy) shares in the company which entitle him to exercise at least five per cent (5%) of the unrestricted voting rights at any general meeting of the company, is required to disclose such holding by notifying the company within a stipulated time.
This new disclosure provisions are poised to enhance transparency and prevent asset shielding as well as combat money laundering, terrorism financing and all forms of illicit financial flows by legal entities having limited liability.
While there is no gainsaying that the above disclosure provisions would enhance transparency and accountability in the Extractive sector in Nigeria, especially in the Petroleum Industry, as many of the oil and gas companies are private limited liability companies (LTD); many of which have ‘rightly’ escaped disclosure obligations with no legal sanction – there is also an urgent need for the enactment of the Petroleum Industry Governance Bill (PIGB) which has as one of its core objectives – “to promote transparency and accountability in the administration of petroleum resources of Nigeria”.
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By Andy Home LONDON, Nov 4 (Reuters) – Zinc and lead are both in short supply
on the London Metal Exchange (LME). Headline zinc stocks of
53,875 tonnes are back at April levels, while
“live” tonnage of 27,800 tonnes is the lowest it’s been in at least
20 years. Lead stocks are a little higher at 70,075 tonnes but have failed significantly to rebuild
from July’s decade low of 55,475 tonnes. Unsurprisingly, both LME contracts are experiencing time-spread tightness. Zinc closed last week with cash metal
commanding a $61-per tonne premium over metal for three-month
delivery.
Lead’s front-month curve structure is also in backwardation to the tune of
$7.25 at Friday’s close. The sister metals have defied expectations of a shift into supply surplus throughout this year and they continue to do so. Even though both are seeing flagging demand, particularly from the automotive sector, supply bottlenecks have kept
each market in supply deficit this year, according to the International Lead and Zinc Study Group
(ILZSG). ZINC DEFICIT WIDENED Indeed, ILZSG has just widened
its expected 2019 zinc supply deficit to 178,000 tonnes from
an assessment of 121,000 tonnes at the Group’s last meeting in May. That’s despite a downgrade to demand,
which is now expected to decline by 0.1%, largely due to weakness in Europe, where usage
is forecast to contract by 3.7% this year. Supply, though, just hasn’t come through in the way anticipated at the start of the
year. Back in May the Group was looking for world mine production to surge by 6.2% this year,
laying the ground for a 3.6% increase in refined metal output. Those forecasts
have been slashed to just 2.0% and 2.5% respectively. Mine supply has increased as expected in Australia, but the
impact has been offset by sharp declines of 6.4% in Peru and 7.8% in the United States. The
anticipated rise in refined production has only really played out in China,
where output is expected to lift by 7.1% this year. Outside
of China, smelter hits have caused a bottleneck in the supply
chain. European production will fall by 3.5% this year due to lower output at Nyrstar’s plants
in France and the Netherlands, while the permanent closure of the 100,
000-tonne per year Vladikavkaz smelter in Russia has blown a
lasting hole in regional capacity. A string of smaller smelter
outages will also depress output in Australia, India and Canada, the ILZSG said. LEAD FORECAST FLIPPED TO DEFICIT
The Group’s revisions to its May forecasts for the lead market are even more dramatic. The
global refined market was expected to register a supply-usage surplus of
71,000 tonnes this year but that has just been revised to a shortfall
of 46,000 tonnes. Lead too is expected to see a fall in demand this year, led by a 1.1%
decline in China, which is seeing weakness in automotive production and “increased use of lithium-ion batteries in both the motorcycle and e-bike sectors and for Uninterruptable Power Supply (UPS) stationary backup systems,” according to ILZSG.
However, lead supply has misfired even more than zinc with the Group
now forecasting global refined production to contract by 0.3% this year,
compared with an expectation in May that it would
grow by 2.5%. The main culprit is Nyrstar’s Port Pirie lead smelter in Australia.
The plant went down in May and following a
restart was out of action again in August. Canada’s Belledune smelter has also seen production hit by industrial action, while Glencore’s permanent closure of its Palpala plant in Argentina last year has served to reduce Latin American treatment capacity. NARRATIVE
BACK ON TRACK NEXT YEAR While events this year
confounded a market narrative of zinc and lead transitioning from supply deficit to
surplus, ILZSG’s forecasts suggest the shift has simply been delayed not cancelled. The Group is forecasting
a zinc market surplus of 192,000 tonnes and a lead market surplus of 55,
000 tonnes in 2020. This year’s demand weakness is expected to fade with
expectations that zinc usage will increase by 0.9% and lead by 0.8% next year. But
the delayed supply surge is expected finally to
arrive with full impact next year. Zinc mined and refined supply are forecast to rise by 4.7% and 3.7%
respectively with lead mine supply up 3.9% and refined output
up 1.7%. This year’s smelter bottlenecks are
expected largely to clear next year, although Port
Pirie’s technical travails remain a key variable for
lead’s supply chain. SPREADS TENSION Both zinc and lead prices have spent
much of 2019 on the back foot with the market trading the elusive surplus story. It’s only in the last couple of weeks that there’s been something of a collective double-take,
primarily because visible exchange stocks have shown no sign of rebuilding.
LME three-month lead last week hit a year-to-date high of $2,265 per tonne, although it has since been knocked back to a current $2,
160. Zinc, meanwhile, has regained
a toe-hold above the $2,500-per tonne level for the first time since
June, currently trading around $2,530. Further gains seem unlikely given the broader negativity in the industrial metals complex with
traders eyeing the bearish combination of spreading factory weakness and the
continued absence of any breakthrough in the Sino-U.S.
trade dispute. Rather, the tensions between expectation and reality are likely to continue
playing out in the nearby time-spreads.
Zinc is particularly in focus, given the extremely low levels of LME on-warrant stocks, but a dominant
position in the LME lead contract equivalent to over 90% of available inventory is also worth a keeping
a close eye on. <0#LME-WHC> It’s clear that consecutive years
of deficit in both markets have severely depleted
inventory, both on and off exchange, and that it will take time for the supply chain to refill. The time-line for a return to surplus has already proved
more elastic than anyone expected at the start of 2019.
The latest numbers from ILZSG should serve as a warning that it could be a while yet before the
transition becomes tangible in the form of rising exchange stocks. (Editing by Susan Fenton)
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