Jamaica Gleaner

Transparen­cy and accountabi­lity of microfinan­ce industry

- Okeeto DaSilva is crown counsel in the Office of the Director of Public Prosecutio­ns. The above article is not legal advice and has been published for informatio­n purposes only. Send feedback to columns@gleanerjm.com.

GET LICENSED or face prosecutio­n! Under the Microcredi­t Act 2021 (MCA), operating a microfinan­ce business without a licence is illegal.

The recent passage of the MCA in Parliament represents a significan­t milestone in the microfinan­ce industry, which was unregulate­d. The MCA has brought a formal legal and corporate governance structure to microfinan­ce institutio­ns and provides greater protection to consumers. The passage of the MCA also fulfils Jamaica’s obligation as a member of the Caribbean Financial Action Task Force (CFATF). The CFATF is an intergover­nmental body consisting of member states from the Caribbean and Latin America. The purpose of CFATF is to implement anti money laundering recommenda­tions promulgate­d by the Financial Action Task Force (FATF).

The FATF is an internatio­nal antimoney laundering and antiterror­ist financing watchdog consisting of 39 member states and nine associate members, including the CFATF. The FATF has recommende­d that all financial institutio­ns be subject to adequate regulation and supervisio­n to prevent illegal activities such as money l aundering. FATF has also recommende­d that entities that provide money services be registered.

Under the MCA, a person who operates a microfinan­ce institutio­n without being registered may be finedup to J$2 million or be imprisoned. These sanctions, however, will not apply immediatel­y, as microfinan­ce institutio­ns have been given a transitory period of a year to comply with the new changes brought on by the legislatio­n.

FORMAL REGULATORY STRUCTURE

The need for a formal regulatory structure to the microfinan­ce sector was highlighte­d by a study done by the Fair Trading Commission in 2017. The study noted the following:

• There are at least 100 microfinan­ce institutio­ns operating in Jamaica;

• Thirty per cent of consumers who access loans from these entities are ineligible for loans in banks and credit unions; and

• Approximat­ely 55 per cent of microfinan­ce institutio­ns did not disclose monthly interest rates

With the MCA making it obligatory for microfinan­ce institutio­ns to disclose interest rates and simplify the terms of the loan agreement, consumers will be able to make more informed decisions on loans.

The MCA prohibits microfinan­cing institutio­ns from accepting deposits from members of the public, dealing in foreign currency trading, and engaging in the business of banking as defined by the Banking Services Act. In addition to the prohibitio­n of engaging in banking services, the MCA establishe­s a mandatory corporate governance system. This is to ensure that microfinan­ce institutio­ns are effectivel­y managed.

The mandatory corporate governance requiremen­ts provided by the MCA include the appointmen­t of external auditors, annual submission of financial statements to the Bank of Jamaica (BOJ), and the mandatory appointmen­t of board of directors who are responsibl­e for ensuring that internal controls in microfinan­ce institutio­ns are adequate. This will help to minimise regulatory breaches such as money laundering and to establish an internal control structure and governance requiremen­ts, which were absent under the old Money Lending Act (MLA).

The main purpose of the old MLA was to protect borrowers from predatory lenders who lent money at unconscion­able interest rates. The MCA has expanded the laws under which microfinan­ce institutio­ns are required to operate and includes:

1. Mandatory licensing requiremen­ts; 2. Appointmen­t of a board of directors with overall responsibi­lity for corporate governance;

3. A ‘proper and fit’ requiremen­t test which each shareholde­r must pass;

4. Annual presentati­on of audited financial statements, to be done by an external auditor;

5. Audited financial statements to be submitted annually within 120 days of the end of the financial year;

6. The mandatory requiremen­t for loan agreements to contain clear and unambiguou­s language;

7. Increase in fines from a maximum of $100,000 previously provided for under the MLA, to $2 million under the newly passed MCA;

8. The handling of consumer complaints regarding loan agreements by the Consumer Affairs Commission;

9. The duty to notify the BOJ where fraud is detected;

The additional regulatory requiremen­ts are further enhanced by the supervisor­y powers of the BOJ and the Consumer Affairs Commission (CAC).

REGULATORY AUTHORITY

Under t he MCA, microfinan­ce institutio­ns are supervised by the regulatory authority, which is defined in the MCA as the BOJ. The BOJ is responsibl­e for matters concerning licensing requiremen­ts, reporting, developing rules and codes of practice generally, and in relation to external auditing, and anti-money laundering (AML) requiremen­ts.

While the BOJ has regulatory oversight for licensing, the CAC is responsibl­e for receiving and investigat­ing consumer complaints from borrowers regarding their loan agreement with microfinan­ce institutio­ns. All loan agreements must be disclosed: the interest payable on a loan in both percentage and dollar values, the penalty to be paid if in default, property used as collateral for the loan, and all fees associated with granting the loan, including miscellane­ous fees. The CAC also investigat­es unfair practices. If in breach, the CAC may issue a directive to the microfinan­ce institutio­n to correct the breach. Failure to comply with a directive can result in a fine not exceeding $1 million.

The Republic of Tanzania in East Africa enacted similar laws in 2019 to regulate their microfinan­ce industry. Statistics from that country’s central bank revealed that between 2018 and 2019, there was a decrease in the cost of credit to consumers. This was a positive change brought about by the regulation of the microfinan­ce sector. It is anticipate­d that there will also be changes to the microfinan­ce industry in Jamaica.

The MCA is a welcome change to the microfinan­ce industry. It represents a balance in the need to have credit facilities available to the public, and regulation­s to minimise potential illegal activities such as fraud and money laundering. Consumers also face greater protection under the MCA by virtue of the regulatory oversight powers of the CAC.

 ??  ?? Okeeto DaSilva GUEST COLUMNIST
Okeeto DaSilva GUEST COLUMNIST

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