Gilbert Nyatanyi and René-Claude Madebari look at the latest changes to the Burundian legislation
In the last few years there has been important changes in Burundi including the introduction of the Companies’ Code of May 30 2011, the Land Act of August 9 2011, and the implementation measures of the Industrial Property Law of December 24 2012.
More recently, in order to improve the business climate, harmonise with the laws of other East African Community members and modernize outdated laws, various legislation has been promulgated, including the Mining Code, the Insurance code, the amendment of the VAT law and fiscal procedures.
Mining Code of Burundi
Law no. 1/21 of October 15 2013 of the Mining Code of Burundi(The Mining Code) provides for the state to participate in the shareholding of a mining company (by at least 10%) and for the right of Burundian investors to purchase shares in a mining company.
Other notable changes include:
• there is no longer a distinction between exploration permit A and B;
• the duration of the exploitation permit is 25 years, every 10 of those 25;
• an application for renewal of a permit must be filed three months before the end of the term of the permit;
• if an application for renewal has been filed in accordance with the Mining Code and if at the end of the term of the permit there is no official response, the permit is automatically renewed, until a decision is taken;
• a permit can be revoked by Ministerial Ordinance based on public interest; and
• the introduction of a mining titles registry.
It is important to note that the two Ministerial Ordinances signed on December 26 2013 have substantially increased the taxes and fees to be paid by the permit holders to the Government. Hydrocarbons are still regulated by the former mining and petroleum legalisation of July 17 1976 and December 14 1982.
Insurance Code in Burundi
Law no. 1/02 of January 7 2014Insurance Code in Burundi introduces a new compensation system characterised by the setting of scales of compensation for physical injury for civil liability insurance with respect to motor vehicles. There is also the new compulsory insurance introduced to increase the security of citizens and protect their assets against potential claims. This includes cargo insurance, professional liability insurance for doctors and lawyers, administrative insurance for buildings against fire or explosion, civil liability insurance for operators of commercial buildings against fire or explosion, and construction risk insurance.
The new Insurance Code also provides for:
• the separation of non-life insurance and life insurance companies;
• the increase of the minimum share capital within one year of the date of the entry into force of the new code: BIF1 billion ($645,000) for non-life insurance companies and BIF500 million for life insurance companies;
• the limitation of the participation in the shareholding of an insurance company by a natural or legal person to 20% (against 33% before);
• the requirements for directors and CEOs of insurance companies in terms of capacity, qualifications, work experience and repute; and
• the establishment of procedures to guarantee solvency and prevent sudden bankruptcy; and
• the regulation on the activities of insurance brokers.
In 2012 the Agency for Regulation and Supervision of Insurancewas created in order to exercise, on behalf of the State, the control and the supervision of the activities of insurance companies.
Decree no. 100/97 of April 18 2014 relating to electronic communications sector
This decree sets out the conditions of operation of the electronic communications sector and fixes the new fees to be paid by licence holders to the government (which have significantly increased) for example:
• annual fees: 2% of the turnover instead of 1.2%; and
• licence fees for added value services providers: $10,000 instead of $0.
Law no. 1/12 of July 29 2013 relating to VAT
This law is an amendment of law no.1/02 of February 17 2009 and introduces the concept of value added tax (VAT).It introducesan intermediate rate of 10% on imported foodstuff and agricultural products processed locally, and on agricultural inputs, a zero tax rate applicable for international transport services other than ancillary transport services.
Law no. 1/02 of January 24 2013 relating to income tax
This law allows for the reduction on the income tax rate on annual income for companies operating in Burundi from 35% to 30% as well as the withholding tax from 35% to 15%. It also provides for the removal of the minimum tax of 1% on annual turnover (irrespective if profit or loss making).
Law no. 1/18 of September 6 2013 relating to fiscal procedures
This law intends to standardise procedures for each taxpayer managed by the Burundi Revenue Authority through a single piece of legislation and to allow for a better understanding of fiscal procedures by the taxpayers.
This legislation sets out that:
• contestations by taxpayers can be filed with the Commissioner General 30 days after receiving the tax notice;
• the obligation to pay the tax, interests and fines is suspended during the procedure; and
• the taxpayer can file an appeal with:
(i) the Joint Appeal Board against the decision of the Commissioner General;
(ii) the Minister for Finance against the decision of the Joint Appeal Board; and
(iii) the Court against the decision of the Minister for Finance.
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)
On the May 9 2014, Burundi became part of the New York Convention. Being part of this convention is one of the criteria foreign investors take into account when considering investing in a country as it offers several advantages such as confidentiality on arbitral proceedings and uniform enforcement of arbitral awards in over 140 countries.
There is still more legislation and amendments to existing legislation in the pipeline in Burundi. This up and coming legislation includes an amendment of the Companies’ Code; the Commercial Code; the Town Planning Code and the Bankruptcy Law, as well as the introduction of new banking laws and foreign exchange rules.
About the author
Gilbert Nyatanyi has 16 years’ experience and is an executive at ENSafrica | Burundi, heading up the office there. He specialises in secured transactions, acquisition and corporate finance, syndicated loans, capital markets. Gilbert has acted for several companies, financial institutions and governments on a wide range of legal matters in Europe and Africa and has an extensive high-level network on the African continent.
Gilbert’s experience includes advising several international clients in assets financing, credit transactions, mergers and acquisitions and secured transactions. Furthermore, he has advised investors in the Great Lakes Region, especially Burundi, Tanzania and Rwanda.
He has published numerous articles and presentations, including those on law reform in emerging countries and on economic developments in Africa, and has been invited to Belgium and abroad to give presentations on the legal aspects of doing business in Africa.
About the author
René-Claude Madebari is an advocate at ENSafrica | Burundi, specialising in public procurement law, corporate law and banking and finance law.
René-Claude is a member of the Burundian Bar and the East African Law Society and is fluent in English, French, Kirundi and Swahili.
He has published a number of articles and given a number of presentations, and was a contributor to Doing Business 2013, in association with the International Finance Corporation and the World Bank.