We have read with utter dismay and disappointment an opinion piece reviewing the National Investment Board Bill.
The review was written by a group of lawyers attached to the GPK Legal Law Firm of 35 Bathurst Street in Freetown. This group, which seemingly has Mr. Gelega King as their leader, includes a Christopher Greene, Eustacia Nicole-Pratt, Jehu Hanciles, Sonia Pratt and Irene Cole. A Dr. David Fashole Luke is also listed as a contributor.
The piece is divided into six sub-headings excluding the introduction and conclusion. We intend to respond to each of the six sub-headings so that people can follow the counter argument. It is prudent to state at the outset that the opinion is a very poor attempt at a hatchet job with its singular objective being to derail a novel institution the President is creating to improve the business environment and promote economic growth in the country.
Further, the piece is a poor excuse of a legal interpretation that can only be accommodated in a trash can. The word salad of an opinion is based on conjectures, bereft of any sound reasoning, and inundated by lazy and spectacularly embarrassing analysis. If in our opinion GPK Legal is representative of the legal profession in Sierra Leone, then we believe we have a serious problem with the capacity to intelligently interpret a legal document.
Increased government scrutiny and involvement
In this section, the authors have issues with section 34(2)(e) and here is a quote from them “…specifically mandates that an investor (i.e., anyone running a business) shall respond to any query from the board in connection with the operations… section 34(h) allows the Board or its employees or agents access to monitor the operations of the business”. According to the authors, this will increase government involvement in the private sector in a way many private companies will find undesirable. They also have an issue that the word “query” is not defined in the Bill and open to misrepresentation. In addition, they argued that government involvement will be inimical to free market economic growth
Response
We want readers to note that GPK Legal inadvertently defines an investor as anyone who runs a business. This is either dishonesty, lazy analysis, or abysmal ignorance. We are inclined to believe this is a case of dishonesty because having read the bill, there is nowhere in the bill that refers to an investor as anyone running a business. Section 31(2)(a) clearly states the board will set minimum threshold for investment. Had they not cherry picked the bill, they would have seen that the intent of the bill is not to group every business in the “investor” definition.
The authors picked on the monitoring role of the board vis-à-vis the private sector. Here again they need some schooling about the role of the government in the private sector. It is only in a dummies’ paradise that people would think a government should not monitor the private sector. There are two broad roles the government plays in the private sector. There is the regulatory role and the promotional or developmental role. The regulatory role of the government includes but not limited to formulating and implementing various direct and indirect measures to monitor the economic activities of the private sector. The power of government to enter business premises is not new and it is mischief for the authors to present that clause as if it is a new regulation for businesses. We know the National Investment Board Secretariat embarked on a nation-wide consultation where these regulations were fully discussed. The private sector never once raised this as an issue. So in the interest of honesty, the authors have the responsibility to show readers how they got to the conclusion that the private sector find it undesirable. This is a national bill that will change the economic trajectory, and no one should throw unscientific conclusions so recklessly; especially people from the legal profession.
Perhaps the most ridiculous issue brought up by the authors is the issue of defining query. Like seriously? Please let them go look in the Oxford dictionary for the definition of query. The language of the Bill in this respect is very clear.
The GPK Legal team also claimed that greater government involvement may be inimical to economic growth. Reason being as they claim, that the above provisions undermine assurances of long-term contracts and financial commitments. This argument convinces me that the authors have no good intentions for this country.
They need to look at the World Bank’s Ease of Doing Business Report they will quicky see that as it is now, the private sector has no assurances of long-term contracts and during the nation-wide consultative meetings, the private sector was very happy that the Bill gives powers to the Board to enforce contracts stalled by bottle necks.
On the issue of this being inimical to economic growth, this argument further exposes the limitations of their cognitive capacity when it comes to political economy. They need to read about the Developmental State and how the involvement of the state in the private sector through investment Boards or authorities have grown economies. They seem to be stuck in dinosaur development economics. They only needed to look at other legislations around the world, that would have saved them the embarrassment of exposing their cognitive limitations on these issues. The National Investment Board Bill is investor friendly. Sections 30 to 36 of the National Investment Board Bill details investor and investment benefits including incentives and protection of investors and investments including investment funds.
Make-up and structure of the board
GPK Legal argue that the statutory members of the board may not necessarily possess the requisite experience and expertise in trade and investment. This argument is lame because we can as well say we should only have people in the cabinet with relevant expertise in the Ministries they oversee. The authors further argue that the composition of the Board is “clearly disadvantageous to the promotion of investment and trade…by comparison the current Board of SLIEPA consists of persons with experience…as well as representatives of the Chamber of Commerce…”
Response
It is pitiful when so called professionals wade into a cesspool of ignorance with eyes wide shut. The make-up and structure of the board is not unique to Sierra Leone. In fact, some of the Asian countries we so admire when it comes to attracting investment have a similar structure. Some of the countries include but not limited to: Nepal, Thailand, Qatar, Oman, United Arab Emirates and Bahrain. African countries like Ethiopia and Togo have a similar structure. Ethiopia is one of the leading countries in Africa when it comes to attracting Foreign Direct Investment. Togo has jumped 23 places in the World Bank Ease of doing business ranking. If the argument of GPK Legal is anything to go by, these countries should be doing poorly. Sierra Leone dropped in the Ease of Doing Business Ranking ranking in the past 10 years with the present structure that GPK Legal is now advocating.
The SLIEPA board upon which these authors have bestowed expertise have been overseeing the investment space for fifteen years but as a country we have seen a steady decline in attracting investment. For the past six years, Sierra Leone has only attracted a total of US$321 million in investment putting us near the bottom in the sub-region. This is abysmal given our natural resources and tourism potential. It therefore behooves the President to change the narrative and create structures that can be efficient and successful in attracting the right kind of investment in the country. If for fifteen years we have been using these so-called experts and having no returns, then it is only smart to try something different. The authors ought to know that the bill requires the board to put together Technical Working Groups with sector specific expertise to give recommendations to the Board. Sec 26(1) mandates the Executive Director with the approval of the board to engage the services of experts to support the work of the board. Sec 26 (2) went further to say that Sierra Leoneans should be given priority in the hiring of experts. The authors conveniently failed to note that the Board can coopt any other member as and when necessary, Sec 5 (n). This is broad enough to bring in the private sector as members of the Board. We were made to understand that the private sector in the very first public private dialogue held at the Office of the Vice President opted not to have any specific representation on the Board. They preferred sector specific representations whenever the Board is discussing that sector
The authors also argued that there is no provision for a unit on post-investment care. However, Sec 14(1)(g) mandates the Executive Director to monitor the progress of an investor’s enterprise (that is post-investment). Added to that, they failed to look at Sec 19(1) which mandates the Executive Director to create Directorates (and departments) as is necessary for the efficient discharge of the functions of the Board. Elementary draft lessons tell us you do not write every minute detail in a bill.
Potential for Unconstitutionality, Partisanship, Conflict
In this sub-topic, GPK Legal claims that the Bill “enlarges the scope of compulsory acquisitions”, provided for in Sec 21 of the 1991 Constitution. This enlargement they claim comes from the word “undertakings”. They claim the word was added to the investor protection clause. While the word “undertaking” is not in the constitution, adding that to investor protection does not in any way violate the constitution because section 21 itself starts with “no property of any description”. The phrase is broad enough that any legal business undertaking would satisfy the intent of that clause.
GPK Legal conjectures that there is a potential for conflict between activities of the Board and MDAs like National Minerals Agency and National Tourist Board. They did not say which activity would lead to the conflict. They also mentioned that the Bill is silent on what strategies that will be implemented if such conflicts arise. Do the authors expect the Bill to outline strategies for coordination? That is an administrative matter that should be dealt with in regulations if the need arises. The Bill makes provisions for coordinating investment activities among MDAs. How coordination will metamorphose into conflict is what GPK Legal Team failed to articulate.
Investor confidence and obligation
The authors claim that the provisions on the rights and obligations of the state and investor are not clear and do not reflect best practice. It would have been helpful if the authors had told us what the best practice is. It is clumsy to just declare best practice without referencing any of those best practices. More disappointingly, the authors did not make any effort to elucidate how the highlighted issue relates to investor confidence.
Dispute resolution
The authors’ gripe with the provision that efforts must be made to settle all disputes within the country before escalating to foreign jurisdictions exposes their lack of patriotism. It is shocking that a group of lawyers would have problems with a law requiring investors to seek redress in our courts before taking the issue abroad if they are not satisfied. The fact that GPK Legal are advocating that investor should immediately seek legal redress outside the jurisdiction of Sierra Leone in my view suggests that GPK lacks trust in our legal system within which they practice. Imagine if all companies demand to take all issues outside Sierra Leone for adjudication what would our lawyers be doing? Over to you Sierra Leone Bar Association.
Conclusion
The conclusion resembles the body of the review wherein it lacks purpose, direction or cohesion. A Conclusion should summarize thoughts and it is the last opportunity to make a lasting impression. Elementary writing lessons tell us that a conclusion must never introduce new arguments or analyze points not earlier discussed. This review from GPK Legal did just what elementary writing prohibits.
The title of the document says they were considering the implications of the National Investment Board Bill. We struggle to see where they discussed these implications
They introduced new arguments in the conclusion that bear little or no relevance to the Bill in the larger scheme of things. For instance, the issue of alignment with the ECOWAS Common Investment Code or the non-binding AU Instrument. We wonder whether these lawyers checked what other countries that had enacted their investment laws before these codes are presently doing. The National Investment Board Act makes provisions for the board through statutory instruments to make regulations which can be used to satisfy these issues.
GPK Legal wandered into psychic land when they claim the Bill does not anticipate protocols yet to be discussed. So, they expected the drafters to anticipate what is going to be in a protocol and then insert a clause reflecting that anticipation? That is childish to put it mildly
Another new argument they included in the conclusion is that investment is not defined. We would like to refer them to the interpretation section of the Bill to educate themselves on that.
For the benefit of the people, there are two types of investments being covered in the bill and it is therefore appropriate for the drafters to define investment within the context of “domestic and “foreign”, which the Bill has done.
Our position
It is our position that few things are going on here with GPK Legal: First, they have either not read the Bill; read the Bill but have issues with comprehension of something that simple; or read and understood the Bill but have decided to throw spanners at a very good Bill the private sector welcomes.
Considering that, we the Citizens for Better Business Environment encourage all in the private sector to ignore GPK Legal’s opinion and support the NIB Bill.
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