Team size: Two

Q&A

How do you navigate the legal complexities of cross-border transactions within the East African Community (EAC) and beyond? 

I navigate the legal complexities of cross-border transactions in the following ways. Firstly, for transactions within the EAC, I ensure compliance with the various trade legislation and protocols passed under the auspices of the EAC and the EAC Treaty (1999) – majorly the rules of origin requirements. Here, I make reference to the EAC Customs Union Protocol (2005), the EAC Common Market Protocol (2010), applicable Trade and Investment Framework Agreements (TIFAs), EAC Competition Act. (2006), etc. Beyond the EAC, I ensure alignment with the requirements under the African Continental Free Trade Area (AfCFTA), applicable TIFAs e.g. the China-East Africa Community (EAC) TIFA (2011), and other bilateral investment treaties.

Secondly, I ensure that the business is proactive in addressing any potential legal or compliance risks by implementing an internal compliance program that includes regular legal audits, staff training on trade laws, IP, data protection compliance laws, and updates on regulatory changes. However, a coordinated compliance strategy is essential, especially within the EAC where it is easily attainable.

Thirdly, I rely on local legal counsel in each target market to provide valuable guidance on navigating local requirements. Also, I have strategically joined the membership of certain – and very relevant – committees and organisations, where I leverage the relationships formed. I am a member of the Cross-Border Practice and Regulation Committee of the East Africa Law Society (EALS), the Cross-Border Practice Committee of the Law Society of Kenya (EALS) and the In-House Counsel Committee of the EALS. From a business perspective, I advise the business to collaborate with local businesses in each target market and form strategic partnerships. Such relationships can provide insights into navigating local regulations and compliance, in addition to enhancing market access and building a stronger market presence. 

Lastly, I recognise the complexity of cross-border contracts, especially in light of different legal systems and traditions e.g. common law (Kenya, Uganda, etc), civil law (Burundi, Ethiopia) and a mixed system (Rwanda). I ensure that risk and its allocation are properly addressed in cross-border contracts. A good example is dispute resolution provisions. I include ADR in such contracts ensuring that in the event of a commercial breakdown, referral is made to arbitration hubs such as the Nairobi Centre for International Arbitration (NCIA) or the Kigali International Arbitration Centre (KIAC) rather than local courts. This ensures neutral, enforceable awards across borders under the New York Convention.

How is the role of the General Counsel evolving in East Africa as organisations place greater emphasis on governance, transparency and ESG considerations? 

The GC has evolved from a back-office legal advisor into a strategic, board-facing enterprise executive. A GC is well-suited to drive a company’s efforts related to governance, transparency and ESG due to their strategic insight, ability to engage with and coordinate input from colleagues drawn from different functions, and their obvious expertise in managing legal and compliance risks. Thus, the role of a GC is evolving to encompass a broader scope of responsibilities, reflecting their increasing importance in corporate governance.