FAQs

General Queries

What is the extent of the President’s powers to declare a State of Emergency and what does this mean?

Ethiopia - Mesfin Tafesse & Associates

Under the Ethiopian Constitution, the Prime Minister is not empowered to declare a state of emergency (SOE).  It is only the Council of Ministers of the federal government that may declare an SOE which is required to be approved by the parliament within 48 hours.

Regional states may also declare their own state of emergency if there is an occurrence of a natural disaster or an epidemic. So far, the Council of Ministers declared a nationwide SOE on 10 April 2020 and Tigray regional state has also declared a state level SOE. Other regions such as Amahra and Southern Nations, Nationalities and Peoples (SNNP) have taken measures such as restricting transportation and lockdowns in some towns short of an SOE.

If an SOE is declared, it would mean that the government would have the power to suspend constitutional rights (political and democratic) to the extent necessary to avert the conditions that required the declaration of the emergency.

Malawi - Savjani & Co.

On 20th March 2020, the President of Malawi declared a state of disaster under section 32 of the Disaster Preparedness and Relief Act (Cap. 33:05 of the Laws of Malawi) (DPRA), owing to the global COVID-19 pandemic. A declaration of a state of disaster allows coordination and implementation of measures to alleviate effects to disasters such as the pandemic.

On 2nd April 2020, the President confirmed the existence of three (3) COVID-19 cases in the country and undertook to announce further preventative measures in due course. On 4th April 2020, the President announced additional preventative measures. As at 8th April 2020, Malawi had reported eight (8) confirmed cases and one (1) death.

The DPRA
The DPRA provides that a declaration of a state of disaster will remain in force for a period of three (3) months from the date specified in the declaration as the commencement date of the state of disaster, unless the President withdraws such declaration before the expiry of such period. However, the President may, from time to time, extend or further extend such period by not more than another three (3) months.

Upon declaring a State of Disaster in the country, the Malawi Government put in place the following measures, among others:

  1. Ministry of Health and Population is redeploying health personnel in all border posts and continues screening and surveillance of people in all entry points;
  2. Government has suspended hosting of international meetings and banned public servants from attending both regional and international meetings being hosted by affected countries. The ban has been extended to all people travelling on other government-related activities such as sports;
  3. Government is advising the general public to avoid non-essential travel to the affected countries;
  4. Government has directed that all schools, colleges (including technical colleges), both public and private universities should be closed by Monday, March 23 2020;
  5. Government is restricting public gatherings to less than hundred (100) people. This restriction applies to all gatherings including weddings, funerals, church, congregations, rallies, government meetings etc. The national security apparatus has been ordered into action to enforce these restrictions.
  6. Government has banned travel of foreign nationals from countries highly affected by coronavirus disease. However, Southern African Development Community (SADC) countries are exempted. Returning residents and nationals from COVID-19 affected countries will be subjected to self or institutional quarantine.

On 4th April 2020, the President announced additional preventative measures which include:

  1. A requirement for all offices to work in shifts, except those working in essential services;
  2. A requirement for all employers to allow vulnerable employees, including those with underlying medical conditions, to work from or stay at home;
  3. Suspension of all formal meetings, gatherings and conferences;
  4. A direction to the Malawi Energy Regulatory Authority (MERA) to reduce fuel prices with immediate effect in order to reduce transportation costs;
  5. A direction to instruct the Malawi Revenue Authority (MRA) to open tax compliance window for a period of six (6) months to allow tax payers with arrears to settle their tax obligations in instalments without penalty;
  6. A direction to apply tax waivers on importation of essential goods for Coronavirus management. These include personal protective equipment, hand sanitizers, soaps, and water treatment chemicals;
  7. A direction to waive resident tax on all foreign doctors and medical personnel;
  8. A direction to increase Malawi Enterprise Development Fund (“MEDF”)  loans allocation from K13 billion to K15 billion in order to help Micro, Small and Medium Scale businesses that have been seriously affected by the pandemic;
  9. A direction to reduce fees and charges on all electronic money transactions in order to promote use of electronic money transactions;
  10. A direction to the Competition and Fair Trading Commission to increase surveillance and protect consumers from anyone who wants to unfairly increase prices of essential goods; and
  11. A direction to the Reserve Bank of Malawi to:
    1. implement a win-win arrangement with commercial banks and Micro-Finance Institutions to observe a three-month moratorium on interest and principal repayments for all loans contracted by Micro, Small and Medium Enterprises;
    2. cushion the foreign exchange market to ensure availability of forex and stability of the foreign exchange rate; and
    3. activate an Emergency Liquidity Assistance framework to support banks in the event of worsening liquidity conditions and to provide support to banks on a case by case basis.

Responsible bodies/persons under the DPRA
The responsible bodies/persons under the Act and their roles during a state of disaster which might be relevant to businesses are as follows:

  1. Commissioner for Disaster Preparedness and Relief
    Functions include:
    1. controlling and directing personnel, materials and services for the purposes of this Act;
    2. generally coordinating the planning and execution of civil protection; and
    3. performing any other functions relating to civil protection that may be assigned to him by the Committee or by the Minister under this Act.

  2. National Disaster Preparedness and Relief Committee of Malawi
    This Committee is responsible for co-ordinating the implementation of measures to alleviate disasters in Malaŵi and its functions include—
    1. the planning and implementation of the measures for the establishment, maintenance and effective operation of civil protection;
    2. Reviewing such measures from time to time; and
    3. considering plans prepared by planning sub-committees
  3. Regional Civil Protection Officers
    Their functions include coordinating the planning of civil protection measures.
  4. Civil Protection Officers
    Their functions include:
    1. the provision, operation and co-ordination of all civil protection services and activities;
    2. giving such orders and taking such measures, during a state of disaster, as in their opinion are reasonably necessary in order to deal with such state of disaster; and
    3. coordinating the use of materials and services made available by government departments, local authorities, statutory bodies and other non-governmental organizations during a state of disaster

      They are also endowed with several powers, including:
      1. a power to make orders directing any person to ‘perform any work or render any service which, as a result of the disaster, is reasonably necessary for the purpose of dealing with the situation.’’ , and
      2. a power to requisition land and property.
  5. The Minister responsible for Disaster Preparedness and Relief
    The Minister’s emergency powers during a state of disaster include:
    1. A power to take over, to such extent and for such purposes as he may specify in the notice, any power or duty conferred or imposed by or under this Act upon the area civil protection officer for the civil protection area concerned; and
    2. A power to confer or impose upon any person or authority any power or duty conferred or imposed upon an area civil protection officer or other person by or under the DPRA:

It is worth noting that any person who, without lawful excuse, fails to comply with an order, direction or instruction given under this DPRA shall be guilty of an offence and liable to a fine of K5,000 or to imprisonment for three (3) years.

Mauritius - BLC Robert & Associates

The President may, by Proclamation, declare that a state of public emergency exists.  The Proclamation:

  1. will, when the National Assembly is sitting or where arrangements have been made for it to meet within 7 days of the Proclamation, lapse, unless within 7 days the Assembly by, resolution (i.e. majority of all its members) approves the Proclamation;
  2. will, when the National Assembly is not sitting and no arrangements have been made for it to meet within 7 days, lapse, unless within 21 days the National Assembly meets and approves the Proclamation by resolution (majority of all its members); and
  3. may be revoked at any time by the President or by resolution of the National Assembly.

Where the National Assembly approves the Proclamation by resolution, the resolution remains in force for a period of up to 12 months, as the Assembly may specify in the resolution, and may be extended for a further period of up to 12 months by resolution of the Assembly.

Nigeria - G.Elias & Co.

Section 305 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the CFRN) empowers the President to impose a state of emergency in the country or any part of it by issuing a declaration through publication made in the official gazette.

However, a two-thirds majority of the National Assembly (i.e. the Senate and the House of Representatives) must ratify/approve such a proclamation for it to be effective.

The conditions under which the President can declare a state of emergency include where there is an “actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security; there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger; there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation”.

To the extent that the COVID-19 pandemic had led to a breakdown of public safety, it falls under the circumstances under which the President can declare a state of emergency. Although the President has not formally declared a state of emergency anywhere is Nigeria, there are currently several Federal executive “lockdown” and “stay-at-home” orders in place in Nigeria to ensure the safety of Nigerians. These orders are entrenched in COVID-19 Regulations 2020 made by the President on 30 March 2020 pursuant to the Quarantine Act, Chapter Q2 Laws of the Federation of Nigeria. 2004.

In addition, the Lagos State Government has promulgated the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 (“the Regulations”).  The Regulations were made pursuant to the Lagos State Public Health Law and the Quarantine Act. 

It empowers the Governor of Lagos State to:

  1. restrict the movement of persons and vehicles,
  2. restrict gatherings of persons for events, meetings, conferences, religious activities and festivals; and
  3. close public, educational and vocational institutions within the State.

Tanzania - A&K Tanzania

The Constitution of Tanzania allows the President to declare a state of emergency in very specific circumstances which include the following:

  1. there is a clear and grave danger such that the breakdown of public order and the cessation of public safety in the United Republic or any part thereof are inescapable except by invoking the extraordinary powers;
  2. there is imminent occurrence of danger, disaster or environmental calamity which threatens the society or part thereof in the United Republic; or
  3. there is some kind of danger which clearly constitutes a threat to the state.

If the President considers the spread of COVID-19 to be so wide that it may cause grave danger to the safety of the public, it appears that he is empowered to declare a state of emergency in such a situation. The state of emergency can be declared to cover the entire country or any part of the country and would last up to six months from the date of the proclamation unless extended by the National Assembly. 

The proclamation of a state of emergency by the President has to be approved by at least two-thirds of the members of the National Assembly.

Where it is agreed for the state of emergency to be proclaimed by the President, this would mean that the government would suspend its normal constitutional procedures in order to regain control over the situation causing the state of emergency.

Uganda - MMAKS Advocates

Under Article 110 of the Constitution of Uganda, 1995, the President is empowered to declare a State of Emergency where the President is satisfied that circumstances exist that are a threat to the security or the economic life of the country or that part is threatened by internal insurgency or natural disaster.

Furthermore, the Emergency Powers Act (Cap 297 Laws of Uganda) provides for passing of regulations by the Minister, which may be expedient for inter alia securing the public safety and for maintaining supplies and services necessary to the life of the community.

Will I have to refund registration fees for conferences that are postponed rather than cancelled?

Tanzania - A&K Tanzania

This would depend on the terms and conditions provided to the attendees of the conference before they signed up. However, generally you do not have to refund fees where the conference has only been postponed and not cancelled since it is expected that the conference will still take place.

Assuming that the event is in fact only postponed and not cancelled, the attendees of the conference should be appropriately notified of the postponement of the conference and that it is to be rescheduled for a future date.

What does the gatherings prohibition mean for companies and shareholder meetings?

Kenya - Anjarwalla & Khanna

The prohibition on public gatherings means that companies, particularly public listed companies, will not be able to convene physical annual general meetings (AGM) during this period when the spread of COVID 19 is being controlled. As such, companies will need to postpone such general meetings or explore alternative ways of convening the meeting.

On 18 March 2020, the Capital Markets Authority (the CMA) in a joint press release with the Nairobi Securities Exchange and the Central Depository and Settlement Corporation advised listed companies that planned on convening their AGMs in March, April and May 2020 to defer the meetings to a later date due to  the ban on public gatherings. In addition, the listed companies are required to ensure that stakeholders are informed accordingly.

For other companies, alternative ways of convening an AGM could be considered (for example, video-conferencing or telephone conferencing). However, these alternatives would need to take into account whether the articles of association of the company allow for such alternatives and whether the number of shareholders who could attend can meaningfully participate in the meeting. 

In addition to the above, and in so far as the Companies Act and the articles of association of a company allows, resolutions by a company which would have been passed at a general meeting could be passed by way of written resolutions. This can generally be used for other types of companies other than public companies (for example, private companies) as there is no mandatory requirement in the Companies Act to convene AGMs for these companies. To ensure that the articles of association of a company allow for this, an analysis would need to be done on a case by case basis to determine whether this option is a possibility.

While appreciating that controlling the spread of COVID 19 is critical, companies should comply with their continuing obligations (for example, the requirement for public companies to hold an annual general meeting within 6 months after their accounting reference date) in so far as it is practicable. In the event that compliance is inhibited by the restrictions that are in place, this reason can be used as a justification for non-compliance. Whilst the Registrar of Companies has not published any statement on the issue of holding meetings and impact on on-going requirements for companies, we do not foresee the Registrar of Companies seeking to impose penalties under the Companies Act for non-compliance arising from the restrictions on public gatherings due to COVID 19.

Malawi - Savjani & Co.

The prohibition on public gatherings with over hundred (100) people and subsequent suspension of meetings and conferences means that companies will not be able to convene physical annual general meetings (AGM) during the state of disaster. As such, companies will need to postpone such general meetings or explore alternative ways of convening the meeting. This is of particular relevance to public companies, which are required to hold AGMs pursuant to the Companies Act 2013 (Cap. 46:03 of the Laws of Malawi). Private limited companies, on the other hand, may elect to hold AGMs but are not required to do so under the Companies Act. Further, under the Companies Act, private companies need not hold shareholders’ meetings provided the company’s constitution permits resolutions which would otherwise require the holding of a meeting to be passed by not less than 75% of the members.

Alternative ways of convening an AGM could be considered, such as video-conferencing or telephone conferencing. These alternatives are being encouraged in some quarters in light of the threat posed by the COVID-19 pandemic. For instance, the Chief Justice has advised courts to conduct proceedings using teleconference or videoconference wherever possible. In an Executive Communication dated 1st April 2020, the Malawi Law Society similarly encouraged the country’s legal profession to use these alternatives for proceedings in and out of court wherever possible.  However, where companies are concerned, these alternatives would need to take into account whether the articles of association of the company allow for such alternatives and whether the number of shareholders who could attend can meaningfully participate in the meeting.

Although controlling the spread of COVID-19 is crucial, it is advisable for companies to comply with their continuing obligations (for example, the requirement for public companies to hold an annual general meeting) so far as possible. In the event that compliance is inhibited by the restrictions that are in place, this reason can be used as a justification for non-compliance. The Registrar of Companies has not published any statement on the issue of holding meetings and impact on on-going requirements for companies but we do not foresee the Registrar of Companies seeking to impose penalties under the Companies Act for non-compliance arising from the restrictions on public gatherings due to COVID-19 and Malawi’s state of disaster.

Mauritius - BLC Robert & Associates

For the duration of the prevailing curfew, initially scheduled to last until midnight on 02 April 2020, all gatherings outside dwellings are prohibited. Shareholder and board meetings may take place by audio or video conferencing if permitted in the constitution of the company.

Morocco - BFR & Associés

The prohibition on public gatherings means that companies (both listed and unlisted companies) will not be able to convene physical annual general meetings (AGM) during this period when the spread of COVID 19 is being controlled. As such, companies will need to postpone such general meetings or explore alternative ways of convening the meeting.

Thus, alternative ways of convening an AGM could be considered (for example, video-conferencing or telephone conferencing). However, these alternatives would need to take into account whether the articles of association of the company allow for such alternatives and whether the number of shareholders who could attend can meaningfully participate in the meeting.

In addition to the above, and in so far as the laws relating to commercial businesses and the articles of association of a company allows, resolutions by a company which would have been passed at a general meeting could be passed by way of written resolutions. This can generally be used for other types of companies other than public companies (for example, private companies) as there is no mandatory requirement in the law relating to commercial businesses to convene AGMs for these companies. To ensure that the articles of association of a company allow for this, an analysis would need to be done on a case by case basis to determine whether this option is a possibility.

While appreciating that controlling the spread of COVID 19 is critical, companies should comply with their continuing obligations (for example, the requirement for public companies to hold an annual general meeting within 6 months after their accounting reference date) in so far as it is practicable. In the event that compliance is inhibited by the restrictions that are in place, this reason can be used as a justification for non-compliance.

It is unfortunate that the Moroccan government has not published any statement on the issue of holding meetings and impact on on-going requirements for companies as the French Government has expressly stated by means of an order.

Under these conditions, we do not foresee the Registrar of Companies seeking to impose penalties under the law relating to commercial businesses for non-compliance arising from the restrictions on public gatherings due to COVID 19.

Nigeria - G.Elias & Co.

The prohibition of public gatherings means that companies in the States affected by the President’s lockdown orders (Lagos, Ogun and Abuja, FCT), and more particularly publicly listed companies in the States above, will not be able to convene physical Annual General Meetings (AGM) as is required under section 213 of the Companies and Allied Matters Act, 1990 (the CAMA) during this pandemic period.

As such, companies will need to postpone such general meetings or explore alternative ways of convening the meeting. Several public, quoted companies and institutions in Nigeria had notified the Nigerian Stock Exchange Market about the postponement of their AGMs due to the outbreak of COVID-19. Under CAMA, a company has 18 months from its last AGM to call another AGM.  In practice, most companies, private or public, will not need to call an AGM before the last quarter of 2020.

The Corporate Affairs Commission (the CAC) on 27 March 2020 released Guidelines for the holding of AGMs of Public Companies by proxies in view of the COVID-19 pandemic (the “CAC Guidelines”).  The CAC noted that companies can hold their AGMs by taking advantage of s. 230 of CAMA on the use of proxies. 

It further noted that the following should guide the companies on the procedure and conduct of the AGM:

  1. The approval of the Corporate Affairs Commission (CAC) shall be obtained before such a meeting is held. The application can be submitted to the CAC Head Office in Abuja or any of the branch offices in any of the States.
  2. CAC shall send representative(s) as observer(s) to the meeting.
  3. The meeting shall only discuss the Ordinary Business of an AGM as provided in s. 214 CAMA.
  4. Notice of meeting and proxy forms shall be sent to every member in accordance with the requirements of CAMA. Companies will be required to provide the CAC with the evidence of postage or delivery of such notices after the meeting.
  5. All the members shall be advised in the notice that in view of the COVID-19 pandemic, attendance shall only be by proxy with names and particulars of the proposed proxies listed for them to select therefrom. The invitation shall be issued at the companies’ expense and the stamp duties shall be prepaid by the company.  The proxies need not be members of the company.
  6. The company shall be guided by the provisions of its Articles or CAMA as regards to a quorum. However, for the purpose of determining quorum, each duly completed proxy form shall be counted as one.
     

However, in complying with the Guidelines, public companies must bear the following in mind:

First, the choice of appointed proxies is restricted to “names and particulars of the proposed proxies listed for them to select therefrom”. The legality of this restriction is in doubt. Section 230 of CAMA allows shareholders to appoint another person (whether or not a member). Hence, the restriction of the appointed proxies under the Guidelines to selected persons contravenes section 230 of CAMA.

Second, the restriction to ordinary business of the businesses to be conducted at the AGM contravenes section 214 of CAMA. Other than ordinary business, companies are allowed to conduct special business at AGMs. The CAC has no power to restrict the business to be conducted at an AGM to ordinary business.

Thus, in complying with the Guidelines, public companies should ensure that sections 214 and 230 of CAMA are adhered to. Where these sections are contravened, unhappy/dissenting shareholders appear to have a legal basis to challenge the validity of decisions reached at such AGMs. See question 13, section C (Corporate) above.

For companies other than public companies, alternative ways of convening an AGM could be considered, for example, video-conferencing or telephone conferencing. However, these alternatives would need to take into account whether the articles of association of the company allow for such alternatives and whether the number of shareholders who could attend can meaningfully participate in the meeting.

In addition, s. 234 of CAMA allows resolutions by a private company which would have been passed at a general meeting to be passed by way of written resolutions signed by all the members entitled to attend and vote at the general meeting.

While appreciating that controlling the spread of COVID-19 is critical, companies should comply with their continuing obligations in so far as it is practicable.

Rwanda - K. Solutions & Partners

The prohibition on public gatherings means that companies, particularly public listed companies, will not be able to convene physical annual general meetings (AGM) during this period when the spread of COVID 19 is being controlled. As such, companies will need to postpone such general meetings or explore alternative ways of convening the meeting.

For other companies, alternative ways of convening an AGM could be considered (for example, video-conferencing or telephone conferencing). However, these alternatives would need to take into account whether the articles of association of the company allow for such alternatives and whether the number of shareholders who could attend can meaningfully participate in the meeting.

While appreciating that controlling the spread of COVID 19 is critical, companies should comply with their continuing obligations (for example, the requirement for public companies to hold an annual general meeting within 6 months after their accounting reference date) in so far as it is practicable. In the event that compliance is inhibited by the restrictions that are in place, this reason can be used as a justification for non-compliance. Whilst the Registrar of Companies has not published any statement on the issue of holding meetings and impact on on-going requirements for companies, we do not foresee the Registrar of Companies seeking to impose penalties under the Companies Act for non-compliance arising from the restrictions on public gatherings due to COVID 19.

Tanzania - A&K Tanzania

As at 30 March 2020, the Tanzanian Government has not issued a directive prohibiting public gatherings. Accordingly, companies in Tanzania can still hold AGMs as required by the Companies Act; however, members are advised to take precautionary measures in light of the Government directives to the public to be conscious of COVID-19 by taking precautionary measures to avoid further transmission such as self-isolation, avoiding physical contact and frequent washing of hand or use of sanitizers. 

The various travel bans in place around the globe have restricted the ability of people to travel internationally for meetings. To the extent that shareholders are not able to be physically present, alternative ways of convening an AGM could be considered (for example, video-conferencing or telephone conferencing). However, these alternatives would need to take into account whether the articles of association of the company allow for such alternatives and whether the number of shareholders who could attend can meaningfully participate in the meeting.

In addition to the above, resolutions by a company which would have been passed at a general meeting could be passed by way of written resolutions. The Companies Act, 2002 allows the members of a company (both public and private) to pass resolutions by way of written resolutions in lieu of holding physical general meetings. However, the articles of association of a company may require that resolutions be passed at physically meetings only. Therefore, a review and analysis of the articles of association would need to be done on a case by case basis to determine whether this option is a possibility. 

While appreciating that controlling the spread of COVID 19 is critical, companies should strive to comply with their continuing obligations (for example, filing annual returns on the Companies Registry Online Registration System (ORS)) in so far as it is practicable.

Uganda - MMAKS Advocates

The prohibition on public gatherings means that companies, particularly public listed companies, will not be able to convene physical annual general meetings (AGM) during this period when the spread of COVID 19 is being controlled. As such, companies will need to postpone such general meetings or explore alternative ways of convening the meeting.

Alternative ways of convening an AGM could be considered (for example, video-conferencing or telephone conferencing). However, these alternatives would need to take into account whether the articles of association of the company allow for such alternatives and whether the number of shareholders who could attend can meaningfully participate in the meeting.

In addition to the above, and in so far as the Companies Act and the articles of association of a company allow, resolutions by a company which would have been passed at a general meeting could be passed by way of written resolutions. This can generally be used for other types of companies other than public companies (for example, private companies) as there is no mandatory requirement in the Companies Act to convene AGMs for these companies. To ensure that the articles of association of a company allow for this, an analysis would need to be done on a case by case basis to determine whether this option is a possibility.

While appreciating that controlling the spread of COVID 19 is critical, companies should comply with their continuing obligations (for example, the requirement for public companies to hold an annual general meeting within 6 months after their accounting reference date) in so far as it is practicable. In the event that compliance is inhibited by the restrictions that are in place, this reason can be used as a justification for non-compliance. Whilst the Registrar of Companies has not published any statement on the issue of holding meetings and impact on on-going requirements for companies, we do not foresee the Registrar of Companies seeking to impose penalties under the Companies Act for non-compliance arising from the restrictions on public gatherings due to COVID 19.

UAE - Anjarwalla Collins & Haidermota

The prohibition on public gatherings means that companies, particularly public listed companies, will not be able to convene physical annual general meetings (“AGM”) during this period when the spread of COVID-19 is being controlled. As such, companies will need to postpone such general meetings or explore alternative ways of convening the meeting.

Alternative ways of convening an AGM could be considered (for example, video-conferencing or telephone conferencing). However, these alternatives would need to take into account whether the articles of association of the company allow for such alternatives and whether the number of shareholders who could attend can meaningfully participate in the meeting.

In addition to the above, and in so far as the UAE Companies Law and the articles of association of a company allow, resolutions by a company which would have been passed at a general meeting could be passed by way of written resolutions. To ensure that the articles of association of a company allow for this, an analysis would need to be done on a case by case basis to determine whether this option is a possibility.

While appreciating that controlling the spread of COVID-19 is critical, companies should comply with their continuing obligations in so far as it is practicable. In the event that compliance is inhibited by the restrictions that are in place, this reason can be used as a justification for non-compliance. Whilst the Dubai Economic Department and free zone authorities have not published any statement on the issue of holding meetings and impact on on-going requirements for companies, we do not foresee them seeking to impose penalties under UAE Companies Law for non-compliance arising from the restrictions on public gatherings due to COVID-19 and would allow parties to meet through video conferencing.

Can a customer who looks sick be refused entry?

Kenya - Anjarwalla & Khanna

Owners of a workplace (including business premises) have a legal obligation to protect customers (and other people at their premises) under occupational health and safety laws.  The Occupational Health and Safety Act, 2007 (OSHA) imposes a duty on owners to ensure the safety, health and welfare at work for all persons at the work place (including customers). The OSHA therefore imposes a legal obligation on occupiers of a premise to take various measures to protect customers and other people at the premises from the spread of COVID-19.

The President of Kenya issued a directive requiring that, amongst other things, all persons who have come into Kenya in the last 14 days must self-quarantine and if a person exhibits symptoms such as cough or fever, they should present themselves to the nearest health facility for testing.  In addition, the Ministry of Health issued hotline numbers to the public to call if they have any inquiries relating to the virus. 

In light of the current circumstances, there would be justification for business owners to deny customers entry or request customers to inform them if they have visited an affected area or if they are experiencing symptoms in order to allow the business owner to take any necessary steps in the business premises that are required to keep it safe. In the event that a person exhibits symptoms of COVID-19, the business owner should suggest that the affected customer goes home to rest or seeks medical advice.

Malawi - Savjani & Co.

Owners of premises generally have a right to refuse persons entry to their property. However, this is subject to certain limitations imposed by law, such as the constitutional prohibition of discrimination/constitutional right to equality. Therefore, it is advisable for business owners not to exercise their right to refuse entry arbitrarily – a COVID-19 screening process could be used as a reasonable basis for any decision to refuse a customer entry.

Nevertheless, a customer’s right to equality of treatment can be limited in light of the COVID-19 pandemic. For instance, employers have a statutory duty to ensure the workplace safety, health and welfare of employees under the Occupational Safety, Health and Welfare Act (Cap. 55:07 of the Laws of Malawi). This could arguably justify refusing entry to customers following a COVID-19 screening process. Further, the state of disaster mentioned above in question 1 may also serve as a lawful basis for limiting customers’ rights in order to prevent transmission of COVID-19. Indeed, the President of Malawi acknowledged this possibility when declaring the state of disaster:

"My government is aware that some of the interventions being implemented have a negative bearing on people’s right to enjoy some of their human rights enshrined in our Constitution such as the right to assemble, the right to movement, and the right to participate in economic activities.

My government is hoping that in pursuance of the greater national good, we will be able to reasonably limit such rights within what is attainable in our Constitutional framework".

Mauritius - BLC Robert & Associates

The occupier of premises has the right to allow or refuse entry to any person.

Morocco - BFR & Associés

The occupier of premises has the right to allow or refuse entry to any person.

Nigeria - G.Elias & Co.

In light of this pandemic and for the safety of the larger society, a customer may be declined access/entry into business premises. However, declining a person access to a building must be based on reasonable grounds. Common good practice is for every establishment to have an electronic temperature detector tool for detecting at least a fever. A detection of illness can then form a justifiable basis for refusing such a person access in this period of COVID-19. Currently, most companies, malls, outlets, and businesses have adopted this measure.

Rwanda - K. Solutions & Partners

Yes, a customer who looks sick can be refused entry in order to stop the spread of COVID-19. Other than denying them entry, further steps have to be taken in order to prevent the spread of the virus.

Tanzania - A&K Tanzania

Owners of a workplace (including business premises) have a legal obligation to protect customers (and other people in their premises) under occupational health and safety laws.  The Occupational Health and Safety Act, 2003 (OSHA) imposes a duty on owners of workplaces to ensure the safety, health and welfare at work for all persons at the work place (including customers). The OSHA therefore imposes a legal obligation on occupiers of a premise to take various measures to protect customers and other people at the premises from the spread of COVID-19.

The Government has issued a directive requiring that, amongst other things, all persons who have recently come into Tanzania must be quarantined and if a person exhibits symptoms such as cough or fever, they should present themselves to the nearest health facility for testing.  In addition, hotline numbers have been circulated to the public if they have any inquiries relating to the virus. 

In light of the current circumstances, there would be justification for business owners to deny customers entry or request customers to inform them if they have visited an affected area or if they are experiencing any COVID-19 symptoms in order to allow the business owner to take any necessary steps in the business premises that are required to keep it safe.

In the event that a person exhibits symptoms of COVID-19, apart from denying entry, the business owner should also suggest that the affected customer seek medical advice.

Uganda - MMAKS Advocates

There is no express provision in the law on which a person that looks sick may be refused entry. However, in light of the designation of COVID-19 as a notifiable disease, one may refuse entry but will likely be better protected if they additionally notify the local authority of the suspected case of an infectious disease under the PHSA.

What are the legal implications on booking repayments?

Tanzania - A&K Tanzania

This would depend on the terms and conditions provided on the booking/reservation applications. In some cases, a specific minimum amount would be deducted from the total amount paid and the remaining amount is paid back to the client.

Therefore one has to closely consider the terms provided in each specific booking application, be it accommodation bookings or tickets bookings, etc.

Where the booking terms allowed for repayments then the client would have to be refunded the booking fee, failure of which the client will have a right to claim.

What is the impact of President Kenyatta’s declaration of a daily 7 p.m. to 5 a.m. curfew on manufacturers’ ability to operate at night?

Kenya - Anjarwalla & Khanna

According to the Kenya Association of Manufacturers, the Ministry of Industry, Trade and Enterprise Development and the Presidential Delivery Unit (PDU) have confirmed that manufacturers can operate at night provided that there is no movement of unauthorized persons during the curfew period. 

This is in line with Public Order 1 on the Coronavirus Pandemic as sanctioned by the National Security Council.  Additionally, operations should be in line with the guidelines and protocols provided by the Ministry of Health, Directorate of Occupational Safety and Health Services and workplace protocols.  The government is currently reviewing the List of Critical Essential Service Providers to incorporate essential manufacturing operations.

If the parties have a statutory timeline to hold an AGM to get approvals for a transaction, what happens if you are unable to hold the AGM due to shut downs/ Government directives to avoid public gatherings?

Tanzania - A&K Tanzania

As at 30 March 2020, no directives prohibiting public gatherings have been issued in Tanzania. Accordingly, companies in Tanzania can still hold AGMs as required by the Companies Act; however, members are advised to take precautionary measures in light of the Government directives to the public to be conscious of COVID-19 by taking precautionary measures to avoid further transmission such as self-isolation, avoiding physical contact and frequent washing of hand or use of sanitizers.

The various travel bans in place around the globe have restricted the ability of people to travel internationally for meetings. To the extent that shareholders are not able to be physically present, alternative ways of convening an AGM could be considered (for example, video-conferencing or telephone conferencing). However, these alternatives would need to take into account whether the articles of association of the company allow for such alternatives and whether the number of shareholders who could attend can meaningfully participate in the meeting.

In addition to the above, resolutions by a company which would have been passed at a general meeting could be passed by way of written resolutions. The Companies Act allows the members of a company (both public and private) to pass resolutions by way of written resolutions in lieu of holding physical general meetings. However, the articles of association of a company may require that resolutions be passed at physically meetings only. Therefore, a review and analysis of the articles of association would need to be done on a case by case basis to determine whether this option is a possibility.

For purposes of interpreting a force majeure clause that includes an “epidemic” as an event, can it be argued that there is currently an “epidemic” in Tanzania?

Tanzania - A&K Tanzania

An epidemic is defined as "as an outbreak of disease that spreads quickly and affects many individuals at the same time.” The World Health Organization defines an epidemic as “the occurrence in a community or region of cases of an illness ... clearly in excess of normal expectancy” while the Centre for Disease Control and Prevention defines it as “an increase, often sudden, in the number of cases of a disease above what is normally expected in a region.”

Whilst it is arguable that COVID-19 constitutes an epidemic globally or in certain countries where COVID-19 has already spread widely and very quickly and materially impacted large (if not all) parts of the country e.g Italy and Spain, it may be too early to conclude that COVID-19 constitutes an epidemic in Tanzania as it is still in its nascent stages in the country. However, in due course, it could potentially amount to an epidemic in the country.

Nevertheless, the relevant force majeure event (where the underlying contract contains a force majeure clause which is either defined to incudes an epidemic or would be wide enough to include circumstances akin to COVID-19 or includes Government action e.g. the directives issues by the Government requiring bars to close) need not be COVID-19 itself. It is the consequences of COVID-19 and its impact upon the ability of the affected party to fulfil its contractual obligations that are relevant.

Contacts

Arshad Dudhia

Arshad Dudhia

Managing Partner, Musa Dudhia & Co.

Eric Cyaga

Eric Cyaga

Partner, K. Solutions & Partners

Foued Bourabiat

Foued Bourabiat

Managing Partner, Bourabiat Associés

Francisco Avillez

Francisco Avillez

Managing Partner, ABCC

Fred Onuobia

Fred Onuobia

Managing Partner, G.Elias & Co.

Geofrey Dimoso

Geofrey Dimoso

Partner, A&K Tanzania

Iqbal Rajahbalee

Iqbal Rajahbalee

Partner, BLC Robert & Associates

Julien Kavuruganda

Julien Kavuruganda

Partner, K. Solutions & Partners

Krishna Savjani

Krishna Savjani

Managing Partner, Savjani & Co.

Mesfin Tafesse

Mesfin Tafesse

Principal Attorney, Mesfin Tafesse & Associates

Sahondra Rabenarivo

Sahondra Rabenarivo

Managing Partner, Madagascar Law Office

Salimatou Diallo

Salimatou Diallo

Partner, SD Avocats

Shemane Amin

Shemane Amin

Partner, A&K Tanzania

Timothy Masembe

Timothy Masembe

Managing Partner, MMAKS Advocates