Désiré Kamanzi, Asante Twagira and Fred Byabagabo, of ENSafrica look at the latest changes to the Rwandan legislation
In keeping its relentless pace to reform the business landscape with a view to attracting foreign and regional investments, Rwanda has recently enacted new laws while a number of existing ones have either been wholly repealed or significantly amended.
This guide focuses on the recent legislative developments in relation to the creation of trusts and trustees, the law on Value Added Tax (VAT), the taxation of minerals and public procurement law.
Regulation of trusts and trustees
The law regulating the creation of trusts and trustees was enacted on March 25 2013 and gazetted on June 24 2013. Under this law, a trust is defined as a fund created in writing as a result of a mutual undertaking by any person, or a person obliged to fulfill any obligation where the property owner transfers his/her property to a trustee for the benefit of the beneficiary or beneficiaries for a specified period or a specific purpose. The trustee must properly manage such property in accordance with the trust instrument concluded with the property owner. The law firmly stipulates that the trust property must be separated from the trustee’s property and captures the importance of the fiduciary relationship between the trustee and beneficiary.
The law further requires the trustees to register all instruments of commercial trusts with the Registrar General of Companies in Rwanda within a period of 30 working days from the date of the acceptance of the trustee of his/her obligation, or if more than one trustee, from the date of the last acceptance. Failure to register would result in the trustee being liable for any consequence arising therefrom.
In addition, each trust would be required to obtain an operating license granted by the competent authority depending on the type of services the trust seeks to perform. These include, but are not limited to: where the trust shall engage in the provision of financial services, telecommunication services and so forth. In accordance with the aforesaid law, a trustee has the general power to invest the trust property.
Furthermore, a trustee is endowed, as per the law, with a wide range of powers pertaining to the exercise of its/his/her activities. These include inter alia: powers to retain the right to any investment made even if that investment no longer fits within the trust instrument or laws applicable at the time of investment; powers to bank money and to pay expenses related to a public offer for subscription; powers to sell and buy via auction; powers to sell a property in case of depreciation of value; powers to deal with debtors and creditors and powers to raise money.
In February 2013, a new VAT law (Law No. 37/2012 of 09/11/2012 establishing the VAT) was published repealing the VAT Code of 2001. This new law introduced inter alia the use of certified billing machines, as well as the shift of obligation of private contractors to record, file and pay VAT on public tenders.
Pursuant to this new law, all VAT registered persons are obliged to use certified electronic billing machines that generate invoices indicating the tax as agreed by the tax administration. This measure is meant, as per the tax authority, to stop tax evasion, help businesses keep their books properly, protect honest taxpayers from unfair competition and ease the collection burden on the tax authority, (the Rwanda Revenue Authority (RRA).
Regarding payment of VAT on public tenders, public institutions that award the tenders are now obliged to record VAT on all public tenders at the time of payment of relevant fees to their contractors and declare it to the tax authority within 15 days after collection. This makes the filing of declarations and paying of VAT on public tenders no longer the responsibility of the suppliers.
This change should be a relief to Government contractors who used to pay VAT late due to payment delays by government bodies or sought to contract loans in order to pay taxes.
It should be noted, however, that the new VAT law neither explicitly exempts loan interests from VAT, nor does it give power to the Minister of Finance to provide, by an Order, for an additional list of exempted items.
Though the levy above (VAT on loan interests) was not included as a source of Government revenues in the 2013/2014 fiscal budget, nothing guarantees that its de facto exemption will remain. Should this be the case, the consequence would be that the cost of borrowing would go up, adversely affecting the financial services sector and consequently the general economy to a certain extent.
The increasing significance of mining was underscored last year by the enactment of a law on minerals tax. Law No. 55/2013 of 2/08/2013 on minerals tax prescribes tax rates on the sale of minerals and, to encourage competitiveness on a global scale through quality, provides tax exemption on the export of samples of minerals for the purpose of assay, analysis or any other examinations in quantities that are approved by the Ministry of Natural Resources.
Among other modifications, the establishment of a code of ethics as well as standard procurement documents was achieved by the enactment of Law No. 05/2013 of 13/02/2013 modifying and complementing Law No. 12/2007 of 27/03/2007 on public procurement. This has further opened Rwanda up to both increased and fair competition in the procurement of goods, works, consulting and other services. Furthermore, the standardisation of the procurement processes has established a stronger bulwark against corruption and increased the transparency and accountability that Rwanda is known for.
About the author
Désiré Kamanzi has 16 years’ experience and is the head of ENSafrica | Rwanda. He is an advocate in business law including commercial, contract, banking and financial, labour, intellectual property, mining, telecommunication, and alternative dispute resolution mechanisms.
His experience includes assisting local and international investors in establishing their businesses in Rwanda and has acted for a number of major listed and unlisted clients in the mining, telecoms, transport and financial services sectors.
Désiré serves as the Secretary General for the Rwandan Law Society and has advised the Rwandan Government through its Investment and Export Promotion Agency (currently Rwanda Development Board) as the Chief Legal Counsel and Director for Trade & Investment Promotion.
He has lectured at the law faculty of the National University of Rwanda and has been intricately involved in the drafting certain identified key priority areas of the law in Rwanda.
About the author
Asante Twagira has eight years’ experience and is an associate at ENSafrica | Rwanda. He specialises in banking and finance, contract law, commercial law, capital markets and employment law.
The extent of his experience has included advising foreign investors in their acquisition of equity in Rwandan banks, providing legal advice for companies listing on the Rwanda Stock Exchange and structuring of amalgamation/merging of companies.
In addition, Asante has also provided legal support to the extension of several loan facilities to Rwandan companies including the drafting of the pertinent transaction documents, perfection of securities and structuring the issuance of medium term notes.
Furthermore, Asante has advised on the incorporation of companies as well as resolving their compliance issues and the drafting and review of employment and service-provision contracts in Rwanda and Uganda.
He is fluent in English, Swahili, Kinyarwanda, Luganda and has a good command of French.
About the author
Fred Byabagabo has seven years’ experience and is an associate at ENSafrica | Rwanda. He specialises in business and corporate law matters and is an advocate with the Kigali Bar Association (KBA). His expertise includes acquisition and sale of shares, mergers and takeovers, drafting and negotiation of contracts, corporate matters, banking and finance, employment law issues and commercial arbitration.
His recent experience includes assisting clients (both local and international) in financing transactions, share transfer, as well as handling various employment and contractual matters.
Fred has lectured at various universities in Rwanda and is fluent in English, French, Swahili and Kinyarwanda.