Africa Newsletter Q2 2017 - Legal and economic information by country

Benin – The PPP law declared contrary to the Constitution for procedural flaw

By Decision DCC 17-039 of 23 February 2017, the Constitutional Court ruled that Act No. 2016-24 on the legal framework for the public-private partnership in the Republic of Benin could not "as such [be] applied" because of its non-referral to the Constitutional Court by the President of the Republic as required by the Constitution of 11 December 1990 under articles 117 and 121.

The Court does not therefore sanction the content of the text but rather the failure to comply with the constitutional rules enabling it to enter into force. It does not, however, comment on the question whether that error may or may not be regularized.

Sophie Pignon
[email protected]

Burkina Faso – Creation of the Caisse des dépôts et consignations du Burkina Faso (CDC-BF)

On May 9, 2017, the National Assembly of Burkina Faso adopted a bill on the creation of a public institution with a special status called the “Caisse des dépôts et consignations du Burkina Faso”.

As access to finance is one of the main constraints to the achievement of public and private investments in the country, this institution is designed to address this shortcoming by mobilizing long-term government deposits and consignments from various administrations to finance the development of Burkina Faso.

The CDC-BF will thus finance structuring investments in the areas deemed strategic by the State, which constitute levers for development.

Gildas Louvel
[email protected]

Cameroon – Publication of the decree fixing the modalities of authentication of SARL (limited liability companies) statutes established under private signature

Decree 2017/0877 of 28 February 2017 was adopted pursuant to Law 2016/014 aimed at encouraging the creation of businesses, notably by lowering to 100,000 CFA francs the minimum amount of capital.

This decree specifies the modalities of authentication of the statutes established under private seal, which will thus be authenticated by the head of the centre of business creation within 24 hours from the filing of the application.

The decree also recalls that only the one-person limited liability companies or those with a share capital of less than one million CFA francs are affected by the exception to the obligation to draw up statutes in the notarial form.

Gildas Louvel
[email protected]

Congo – Aoption of a law on transparency and accountability in the management of public finances

On 9 March 2017, the President of the Republic of Congo promulgated Law No. 10-2017 on the Code of Transparency and Accountability in Public Financial Management.

This text institutes an obligation of good governance, which applies equally to the funds of the State and its public administrations, as well as to the funds of external assistance granted by international institutions or foreign states.

In this respect, the Law establishes, inter alia, an obligation to comply with the economic framework and the legality of the financial operations of the State and public administrations, as well as an obligation to fully disclose such transactions.

Gildas Louvel
[email protected]

Côte d'Ivoire – Approval of the PPP for the construction of the Abidjan Arts and Business Center

The Council of Ministers held on 5 April adopted a decree approving the contract signed on 3 January 2017 between the State of Côte d'Ivoire and the selected economic operator for the construction of the Abidjan Arts and Business Center. The contract also includes the handing over to the State of a part of the Center, intended to house the National Library of the African Renaissance of Abidjan (BRAA).

This economic and cultural project, resulting from a Public-Private Partnership (PPP), will be entirely financed and implemented by the selected national group of companies, within the framework of an emphyteutic lease concluded with the State of Côte d’Ivoire.

Gildas Louvel
[email protected]

Côte d'Ivoire – Adoption of two ordinances in the context of the improvement of the business environment

The Council of Ministers adopted on Wednesday, May 17, 2017, two ordinances in order to attract more investors and thus consolidate the economic growth of the country.

The first ordinance, amending Article 6 of the previous ordonnance of 10 February 2016, strengthens the rights of creditors by ensuring that they are fully transparent and that collective proceedings for the settlement of liabilities are carried out smoothly.

The second ordinance, adopted to improve the quality of judicial proceedings, amends Article 2 of the Law of 30 December 2015 by raising to 3,500,000 CFA francs the threshold below which special procedures for the settlement of small disputes apply.

Gildas Louvel
[email protected]

Guinea – A Public-Private Partnerships Law under preparation

The announcement was made by the Ministry of the Budget at a workshop on the presentation of the tools to operationalize the institutional arrangements and the strengthening of the national management capacities of Public-Private Partnerships (PPP), held in Conakry from 8 to 10 March.

This law would create a genuine first normative framework, hitherto limited to Law L/97/012 of 1 June 1998 authorizing the financing, construction, operation, maintenance and transfer of development infrastructures by the private sector, the so-called "BOT" (Build-Operate-Transfer) law. Indeed, since Guinea is not a member of WAEMU, its guidelines do not apply to it.

Sophie Pignon
[email protected]

Morocco – New text on commercial leases

The new Law n ° 49-16 on leases of buildings or premises rented for commercial, industrial and artisanal use promulgated by dahir n ° 1-16-99 of 18 July 2016 entered into force on 11 February 2017 for all existing and future leases, and leases not yet ready to be judged or held in reserve. This new law repealed the provisions of the dahir of 24 May 1955 on leases for commercial, industrial and artisanal use, as well as the provisions of Article 112 of Law No 15-95 forming the Commercial Code.

The main contributions resulting from this new text are as follows:

• Extension of the status of commercial leases to private educational institutions, cooperatives, private clinics, pharmaceutical laboratories and other similar bodies in the course of their activities; the tenant of premises located within commercial centers and malls under a single brand being excluded from the scope of this law ;
• The possibility for the tenant to transfer the right to the lease to a third party regardless of the ownership of the business as a whole;
• The obligation for the parties to make the lease contract in writing and to draft an inventory;
• The regulation of key money threshold and the automatic opening of the right of renewal to the tenant;
• The regulation of the sublease regime.
• The introduction of new measures to terminate the lease, in particular the possibility of inserting a resolutory clause in the lease in the event of default by the tenant.

Hatim Boukhris
[email protected]

Senegal – € 280 million for the Dakar BRT

On May 25, the World Bank approved a € 280 million loan (for a total cost of € 380 million) to finance Dakar’s Bus rapid transit.

For the operation of this 18.3 km line, which is expected to transport up to 300,000 passengers a day, the government of Senegal has chosen public-private partnerships with user payments. He pre-selected until April the candidates for the future public service delegation (“PSD”) for the acquisition of rolling stock, the operation and maintenance of this bus line with high level service. For the record, the PSD regime is set by Decree No. 2014-1212 of 22 September 2014 on the Public Procurement Code.

Sophie Pignon
[email protected]

Senegal – Creation of the Orange Digital Ventures Africa fund

On June 9, 2017, Orange announced the creation of a new investment fund dedicated to early stage innovative projects on the African continent.

This fund, based in Dakar and endowed with a budget of 50 million euros, will be designed to accompany innovative African start-ups in the fields of new connectivity, fintech, internet of things, energy or e-health. Start-ups geographically based in Africa or interested in African issues from another continent will be eligible for funding.

Investments will be made half in direct investment and half in indirect investments through specialized funds in Africa.

Gildas Louvel
[email protected]

Togo – Work reunions of the Specialized Technical Committee on Transport Tourism and Energy in Africa

Lomé hosted the first work reunions of the experts of this specialized technical committee of the African Union from 13 to 17 March.

On this occasion, Togolese Foreign Minister Robert Dussey called for the search of innovative financing mechanisms for the development of the continent. Using public-private partnerships (PPPs) as one of the main means, he said that "the poor quality of infrastructure in Africa, particularly in terms of electricity, water, roads and new technologies, costs to each country two points of growth each year and reduces productivity by 40%".

Sophie Pignon
[email protected]

Tunisia – Law No. 2015-12 dated 11 May 2015, related to the production of electricity from renewable energies

The aim of this law is to promote the development of renewable energies and to strengthen the electricity supply in Tunisia by encouraging private initiatives and liberalizing the production and export of electricity.

Salah Dakhlaoui
[email protected]

Tunisia – Law No. 2017-14 of 28 March 2017; on the membership of the Republic of Tunisia to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters

The Convention provides transmission channels to be used when a judicial or extrajudicial document is to be transmitted from one signatory State to another signatory State which should be parties to the Convention.

The objectives of the Convention are to make available to the recipient in due course, the acts intended for it, to simplify the modes of transmission of such acts (alternative to the diplomatic and consular courier) and to facilitate evidence that the transfer was realized.

Salah Dakhlaoui
[email protected]

Tunisia – Bill of law on safety of Industrial Product and Market Surveillance

This bill aims to organize industrial products through a unique and special legislation that includes principles, concepts and new mechanisms that protect the health of individuals and their safety, the environment and other public interests.

Its aim is to harmonize national legislation on the safety of industrial product markets and control in accordance with international standards in order to protect the safety of individuals, their health and the environment in one hand, and to support Export opportunities in the other hand.

Salah Dakhlaoui
[email protected]

Tunisia – Bill of law on the ratification of the Kyoto Convention of 1973, as amended in 1999, relating to the simplification and harmonization of customs regulations

This bill of law aims to authorize the membership of the Republic of Tunisia to the revised “Kyoto” Convention. The Convention is an international agreement that provides a comprehensive set of customs procedures to facilitate legitimate international trade while conducting customs controls that ensure, in particular, the protection of customs tax revenues and society. It deals with the essential principles for simplified and harmonized customs procedures: predictability, transparency, application in accordance with set out procedures, maximum use of information technology and use of modern customs techniques.

Salah Dakhlaoui
[email protected]