According to a recent news report by the B&FT newspaper, the Office of the Registrar of Companies (ORC) reports that as of February 27, 2023, only 25.8% out of 287,189 registered companies have updated their beneficial ownership (BO) information despite the repeated notices and the deadline for doing same having elapsed some three months ago. Per the news report, the ORC is warning it will strike off names of non-complying companies anytime soon as well as companies that have failed to file their annual returns for years.
This low compliance rate raises serious concerns about the ownership regime of companies in Ghana, particularly as it relates to ownership transparency and accountability – knowing the identities of the true or real owners. The continuing non-compliance defeats the purpose and objectives of the beneficial ownership regime introduced as part of the changes to company law legislation in Ghana – the Companies Act, 2019 (Act 992).
Therefore, the purpose of this article is to assess whether the call by the Registrar of Companies for companies existing prior to the coming into force of Act 992 to update and provide their beneficial ownership information is justified and must be supported.
THE BENEFICIAL OWNERSHIP REGIME IN GHANA
One of Ghana’s most recent advancements in company law is the introduction of a statutory beneficial ownership disclosure regime under the Companies Act, 2019 (Act 992). The primary objective for this introduction according to the explanatory memorandum to the Companies Bill, was to make transparency on beneficial ownership a tool for fighting corruption and detecting inappropriate conflicts of interests by government officials by promoting the disclosure of the identities of beneficial owners who may be politically exposed persons.
The establishment of a beneficial ownership register of companies was envisaged as the most effective way of providing information on the beneficial owners of a company and enabling businesses, citizens, and civil society to easily identify the true owners of the companies.
The Companies Act defines a beneficial owner as someone who has a substantial economic interest in or receives substantial economic benefits from a company, whether acting alone or together with other persons. This interest may be direct as a named member of the company or indirect via one or more holding companies. Beneficial owners have been classified into three main categories – natural persons, companies owned by the government, and publicly listed companies by the Act.
To ensure full ownership disclosure, the Act mandates the inclusion of the names and particulars of beneficial owners in the register of members of the company and to establish a beneficial ownership register – in which all companies, including external companies, are required to record the particulars of their beneficial owners.
To aid the identification of beneficial owners, corporate documents such as share certificates, shareholders’ agreements, share subscription agreements, deeds of Transfer, the company profile, and incorporation documents serve as good sources of information.
Finally, the Act also mandates companies to indicate whether a beneficial owner falls within the category of Politically Exposed Persons (PEPs). A PEP refers to an individual who has held or currently holds a significant public position or office in Ghana, an international organization, or a foreign country. Moreover, if someone is a relative or a close associate of a person who holds a high public position or office, they are also considered a PEP.
IS THERE JUSTIFICATION FOR UPDATING BO INFORMATION?
The low compliance with the beneficial ownership disclosure requirements can primarily be attributed to companies that were incorporated under the repealed Companies Act, 1963 (Act 179) and prior to the introduction of the beneficial ownership regime. Under Act 179, these companies had no obligation to disclose beneficial ownership information and were not required to provide such information prior to their incorporation and subsequently by way of the filing of their annual returns. Thus, the call to update BO information is a call on these companies to comply with the new requirements under Act 992.
Transparency and disclosure remain key elements of effective corporate governance practice in any organization. Therefore, the requirement for disclosure of beneficial owners facilitates the achievement of transparency and by extension, enhances the relationship between shareholders and other stakeholders of a company.
Disclosure is a sine qua non for corporate accountability and is necessary for the fight against financial impropriety thus highly commendable that beneficial ownership details of companies are required to be disclosed to the Registrar of Companies.
However, despite the regulatory push toward beneficial ownership disclosure, many businesses are still reluctant to comply. The following are the potential consequences of the current low compliance rate:
- Difficulties in resolving disputes surrounding ownership and control
The failure to accurately disclose beneficial ownership data can lead to uncertainty and confusion over the ownership and control of a company. This can occur in situations where the registered owners or directors are merely nominees, holding shares or positions on behalf of the true beneficial owners. Without accurate information on beneficial ownership, it may be challenging to determine who has ultimate control over or ownership of a company.
Disputes over the ownership or control of a company can have significant consequences, including damage to the company’s reputation and financial stability. In some cases, such disputes can result in the dissolution of the company or the forced sale of its assets. Legal battles over ownership or control can be lengthy and expensive, consuming valuable resources and distracting management from core business operations.
Accurate and timely disclosure of beneficial ownership data is therefore essential to prevent disputes over the ownership and control of a company. By providing transparency and clarity over the true beneficial owners of a company, such disclosure can help ensure that disputes are resolved quickly and fairly, avoiding the potentially severe consequences of ownership and control disputes.
- Protection against the proliferation of shell companies
Shell companies are entities that have no significant assets, operations, or employees and are often set up solely for the purpose of holding assets or conducting transactions. Because they are separate legal entities, shell companies can be used to separate ownership and control from the individuals or entities that actually benefit from the business operations.
Without accurate disclosure of beneficial ownership data, shell companies can be used to obscure the true owners and beneficiaries of a business. For example, a shareholder may use a shell company to hold shares in a business, concealing their identity and avoiding mandatory disclosure requirements. In some cases, shell companies may be used to transfer funds or assets between related parties, making it difficult to trace the flow of funds or identify the ultimate beneficiaries of a transaction.
The proliferation of shell companies can have significant consequences for the integrity of the corporate landscape. They can be used to facilitate a wide range of fraudulent and criminal activities, such as money laundering, tax evasion, and corruption. Shell companies can also be used to conceal ownership of assets and avoid legal liability, making it more difficult to hold individuals or entities accountable for their actions.
Low compliance rates of BO data disclosure requirements can exacerbate the problem of shell companies. Without accurate information on beneficial ownership, it may be more challenging to identify the true owners and beneficiaries of shell companies, making it easier for individuals to abuse the corporate form for illicit purposes. Accurate and timely disclosure of beneficial ownership data is therefore crucial to prevent the proliferation of shell companies and ensure transparency and accountability in the corporate environment.
- Incapacitates the regulator’s ability to identify and reject blacklisted individuals
Low compliance with beneficial ownership disclosure requirements can make it difficult for regulators to identify and reject blacklisted individuals, thereby exposing corporate entities to the risk of a host of financial crimes.
Beneficial ownership information is critical to identifying the individuals who ultimately own or control a company or asset, and therefore, assessing the risk of illicit activity. The Financial Action Task Force (FATF), a global money laundering and terrorist financing watchdog has identified the importance of beneficial ownership information as part of its global anti-money laundering and counter-terrorist financing (AML/CFT) standards. The FATF requires countries to ensure that competent authorities have access to accurate and up-to-date beneficial ownership information and that the information is available to relevant authorities in a timely manner.
However, low compliance rates with beneficial ownership disclosure requirements can make it difficult for regulators to obtain the necessary information to identify and reject blacklisted individuals. In some cases, individuals may intentionally conceal their beneficial ownership interests or use complex ownership structures to avoid detection. Without accurate and complete beneficial ownership information, regulators may not be able to identify the individuals or entities that pose a risk to the financial system.
The integrity of the corporate ecosystem and prevention of illicit activities therefore largely depends heavily on the accurate and timely disclosure of beneficial ownership information.
- Measuring political exposure and preventing corruption
Poor levels of compliance with beneficial ownership disclosure requirements can make it difficult for regulators in Ghana to measure political exposure and prevent corruption. Beneficial ownership information is essential for identifying PEPs who may pose a higher risk of financial misconduct.
The FATF has identified PEPs as high-risk individuals who require enhanced due diligence measures to prevent corruption and its attendant consequences. These individuals are more susceptible to corruption due to the influence and power they hold in their respective fields. As such, regulators in Ghana need accurate and up-to-date beneficial ownership information to identify PEPs and assess the risks they pose to companies.
By measuring the political exposure of PEPs, regulators can identify the potential risks associated with their involvement in financial transactions. This helps to prevent illicit activities and financial impropriety, as well as promote good governance and accountability in public offices.
Regulators in Ghana must work to ensure that compliance rates with beneficial ownership disclosure requirements are high, and that the information obtained is accurate and up-to-date in order to promote good corporate governance and increase investor confidence.
Ensuring the transparency and accountability of the masterminds behind companies is essential for their long-term growth and sustainability. The accurate and timely disclosure of beneficial ownership information is a critical component in achieving these goals.
However, despite the efforts of regulators, the rate of compliance with beneficial ownership disclosure requirements remains low and leaves Ghanaian companies vulnerable to exploitation.
Some recommendations have been proposed to encourage companies to voluntarily comply with beneficial ownership disclosure requirements. Adherence to these suggestions will help regulators mitigate the above-mentioned risks and ensure that the integrity of the Ghanaian corporate ecosystem is upheld.
First, many businesses may not fully understand the importance and requirements of beneficial ownership disclosure. Regulators can therefore work with industry associations and other stakeholders to increase awareness of the importance of beneficial ownership data disclosure and the risks associated with non-compliance. This could include providing training and resources to businesses and individuals on how to comply with disclosure requirements and promoting best practices for data management and compliance.
Further, some businesses may struggle to disclose beneficial ownership information due to complex or burdensome processes. The ORC can work to simplify the process by providing clear guidelines and user-friendly online portals for disclosure.
Also, inaccurate or incomplete beneficial ownership data can render disclosure efforts ineffective. The ORC can work with other government agencies like the Ghana Investment and Promotion Centre (GIPC) and the Ghana Revenue Authority (GRA) among others to improve data quality by sharing information and adopting common data standards and definitions.
Finally, beneficial ownership disclosure is a global issue, and regulators can benefit from international cooperation and collaboration. The ORC can participate in international data-sharing initiatives, share best practices and lessons learned with regulatory counterparts in other jurisdictions, and collaborate on investigations and enforcement actions.
Compliance with beneficial ownership disclosure requirements is an absolute must for companies looking to ensure their long-term sustainability. Not only does it prevent both legal and reputational consequences, but it also enables companies to foster trust and transparency with their stakeholders and the wider business community.
Companies currently in default are therefore urged to act immediately and submit their beneficial ownership information. This is not only a legal obligation, but also an opportunity for your company to showcase its commitment to good corporate governance and responsible business conduct.
By complying with the beneficial ownership disclosure requirements, you can position your company for success in the long run and build a stronger, more resilient business.
ABOUT THE AUTHOR
HAROLD KWABENA FEARON is a Trainee Associate at SUSTINERI ATTORNEYS PRUC with its Corporate, Governance, and Transactions Practice Group, specializing in legal service provision for Startups/SMEs, Fintechs, and Innovations. He welcomes views on this article via firstname.lastname@example.org