With some exceptions, corporate investigations in Africa present greater challenges and complexities than typically found in North America or Western Europe.
While generalisation is dangerous in a continent of 55 jurisdictions with varying economic, political, social and linguistic characteristics, there are some commonalities.
First, in many countries, the capabilities, integrity and reliability of the judiciary and law enforcement are poor. The courts, the police and the prosecuting authorities are often criticised for being corrupt, undermanned, ill-equipped and partial. While the situation in some African countries is slowly improving, it remains precarious in others—particularly those with economies dependent on oil or mining—such as the DRC, Angola and Gabon. But generally, Africans view the law as too easily manipulated by those with political power or wealth. For an investigator, this means that it is frequently possible for other parties to purchase immunity from investigation or prosecution, and/or face frequent demands for bribes to obtain documents.
Public records present the second challenge. While at best—in South Africa and Morocco, for instance— they match many Western European jurisdictions, the norm is for patchy, incomplete and out-of-date records housed in a variety of national and local institutions that are rarely accessible to third parties. We have come across records without key data such as dates of birth, and where names are spelled in numerous ways. Sometimes, records have clearly been tampered with, “mislaid” or “borrowed”. Few records are online; most require manual retrieval from dusty ledgers in offices with unpredictable opening hours. For the investigator, this means more time and greater use of local resources.
And while media coverage is extensive across the continent, in most countries the tone of newspaper articles is either obsequious on the one hand or defamatory on the other. Planting outrageous allegations in newspapers is a popular way to settle business disputes. That said, Internet use is growing considerably, and in countries such as Kenya, Ghana and Côte d’Ivoire, blogs increasingly call corrupt politicians to account. This provides helpful pointers for an investigator on the one hand, but misleading distractions on the other.
Another factor to consider is the use of three main legal systems on the continent, which are sometimes supplemented by Sharia or customary law. Angola, Gabon, the DRC, Sénégal and 26 other countries adopted civil law codes brought by former French, Portuguese, Spanish or Belgian colonial rulers. Nigeria, Kenya, Ghana and seven more jurisdictions—predominantly former British colonies—adopted English law. A further 14 countries follow mixed common/civil law systems—most notably South Africa’s, based on Roman-Dutch law. Thus, there are broad variations across the continent regarding rights and obligations in commercial transactions. Moreover, there are many cultural issues to be sensitive to. African societies tend to value hierarchy, official titles, seniority and personal relationships much more than in the West. When added to an often relaxed attitude towards punctuality and little—if any—familiarity with corporate investigations or due diligence, these factors mean that investigations can require a great deal of time, tact, patience and local knowledge.
Consider also the characteristics of the business environment in question. Most African countries have close-knit local business communities with substantial influence over law enforcement and government, in some cases based on a small number of wealthy families. Often, a country boasts large numbers of people with the same—or very similar—names.
These families and clans frequently straddle borders due to arguably illogical colonial-era borders—Gabon and Congo, for example. In such circumstances it can very difficult to ensure discretion, confidentiality and security due to cross-border connections.
In such a potentially complicated environment, therefore, it is crucial to move carefully and thoughtfully. Only use investigators who have proven experience in Africa, speak the local language fluently, know how to navigate the local public domain, and have a network of vetted local sources built up over many years who genuinely understand and adhere to anti-corruption and compliance requirements and best practices. Always take care to understand the background, connections and political influence of every subject of an investigation. Consider instructing local counsel with a genuine on-the-ground presence in the relevant country who can advise—among other matters—on local blocking statues, data protection and labour laws. And finally, expect things to move slowly.