Article by Mwanje Gideon
The Company Act 2012 of Uganda provides a foundation for corporate investigations, stretching from section 173 of the Act. However, it is imperative to note that a review and potential revision of the Act could be beneficial to address several issues in the legal framework, which include the following:
New technology and data privacy laws have emerged, which, at some level, prohibit the use or access to individual data without the consent of the owner. It follows, therefore, that under section 174, the registrar is empowered with powers to appoint an investigator into the company’s affairs.
However, such investigations may sometimes include personal data. Even when we are to look at the exceptions under the Data Protection Act, some instances enshrined in the Company Act remain silent.
Technology provisions may, on the other side, provide for forensic accounting techniques to help uncover financial irregularities.
There is a need to promote a culture of compliance. It is trite law and good practice, that ethical business conduct within companies can help prevent issues that necessitate investigations.
There is a need to empower the registrar with private sector expertise in handling corporate investigations rather than depending on Government expertise only.
There is a need to align our Company Laws with the international law enforcement provisions.
It is prudent to note that complex financial crimes often have cross-border implications. Therefore, aligning our laws with international laws and enforcements such as Interpol can play a vital role in aiding investigations and accountability.
The maxim of law is clear that Salus ubi multi consiliarii, which is to the effect that where there are many counsellors, there is safety.
There is need to designate time in which such investigations should be made, it is a lacuna in the current Ugandan laws that the registrar is not afforded time in which such investigations should be conducted. The silence of our laws amounts to a lacuna that needs to be treated so that justice can be served. Justice delayed is justice denied.
In conclusion, the success or failure of corporate investigations has been mainly due to a lack of legal framework and scholarly views on the issue of corporate investigations. Apart from the Acts, few authors have come out to write about this field of company law and, therefore, in order to enhance investigative practices and promote transparency and accountability in the corporate sector.
There is a need to promote a culture of compliance and empower the registrar with private sector expertise, among others.
About the author: Mwanje Gideon is the President of the Nkumba University Research Club; President Uganda Law Students’ Association president, and President of the East African Law Students’ Association
