Priority areas for the new government on co-operatives
By Mary Kiema
The Co-operative business model has been identified as an appropriate vehicle for inclusion. Sessional paper 10 of 1965 on “African socialism and its application to planning in Kenya’’ a post-independence paper saw this model as a means of reducing poverty. Since then, a lot has changed but the original thought remains that of improving standards of living. Much has been done by the players in this movement in a bid to keep pace with the demands of the ever-changing environment. Co-operative enterprises have to compete with many other models leaving consumers spoilt for choice.
The players charged with the responsibility of overseeing the development of the Co-operative function have continually formulated policies designed to guide the movement. The National Co-operative policy themed ‘Promoting Co-operatives for industrialization.’ is one such policy. Through this policy, Co-operatives are expected to transform into vibrant social and commercial enterprises. Regulation of some SACCOs and review of the Co-operative Society Act are some of the other interventions. Going forward policy formulation will benefit by drawing lessons from the successful and unsuccessful Co-operative Societies. So far there is an indication that there are gaps in understanding the model. Some emerging formations are Co-operatives by name but not by deed. This can be corrected by availing of the appropriate information at the promotion and registration level.
Since Co-operatives are said to meet the government halfway in the development agenda, the government must level the playing field by providing an enabling environment for the Co-operative societies. As they venture into areas previously occupied by other players, they should be allowed to enjoy some privileges reserved for organizations that benefit the majority of the citizens, especially those that are at the bottom of the pyramid. Importantly, the vetting of associations that opt to operate this model must be exhaustive enough to identify genuine players.
The Co-operatives landscape is dominated by the financial Co-operatives commonly known as SACCOs. The vigour employed in the early 70s to promote SACCO societies should now be employed to protect them and to promote Co-operatives that engage in other activities. Through innovation, Co-operatives can contribute more to the development of the nation than they are doing currently. The National Co-operative Policy prompts enterprises to venture into diverse activities. In response, Co-operatives are expected to engage in productive activities that create employment without losing their identity. These activities include Agriculture, Technology, Housing, and Transport among others. The confusion experienced by the matatu Co-operatives that are erroneously referred to as SACCOs can be avoided by forming the right type of Co-operatives. Copreneurship, as practised by worker Co-operatives, is an option worth exploring since members have diverse skills that they can contribute to the management of their enterprises. Appropriate policies, Bylaws, and procedures manuals must be formulated to guide some grey areas.
The Co-operative Societies Act proposes amendments that include those that affect the name of the Act, formation of federations, tiers of the movement, qualification of board members, and share trading, roles of the county and central governments, formation of co-operative court, restriction on the use of the name SACCO and use of virtual meetings among others. These amendments will inform the nature of policies and procedures necessary for operationalization. An enabling environment and stakeholder education are vital for this to succeed.
Previously, the Co-operatives function was in the ministry of social services as a department. In came the Ministry of Co-operative Development (MOCD) as a standalone Ministry. The effort of achieving a lean cabinet has seen the Co-operative function tossed from the Ministry of industrialization, trade, and enterprise development to that of Industry, Trade, and Co-operatives and that of Agriculture, livestock, fisheries, and Co-operatives. The thought line here indicates the challenges of understanding and identifying the nature of the co-operative model. Is it more social than commercial? Is the dominant occupation agriculture or finance? One seems to be asking? This juggling may end by understanding that, the movement is unique and subscribes to principles different from other business units. A Ministry of Co-operatives and SMEs as mentioned by the new administration is a good start if well resourced.
Since the function was devolved to the counties, National and County policies should be harmonized to avoid confusion. Standardization of operations will require a shift from what was previously the norm without disintegrating the Co-operative enterprises. Where some are formed to serve members across counties, the policies should be pre-emptive enough to support operations.
Members have become more complex in their expectations. They can be reached and seamlessly served everywhere including the diaspora by use of appropriate technology. This redefines the area of operations and calls for change in policies and procedures.
The way forward, therefore, is to realign the movement with the unfolding scenario.
The writer is a Certified Co-operative professional, a Consultant on the Co-operative business model, and the founder of the SACCOpreneurs group Facebook .
SUSTAINABILITY AND CLIMATE RISK REPORTING – A SACCO PERSPECTIVE
By Robert Kanyua
The Climate Crisis is deepening and bringing along adverse and significant impacts across all sectors. The all too familiar threats occasioned by climate change include flooding, drought, unpredictable seasons and weather patterns that have turned hitherto fertile lands into deserts. Accordingly, the loss and damage associated with climate change impacts keep on growing. Yet, even as the consensus around climate risk reporting becomes stronger, not all financial services firms have embraced the practice. How should financial services firms approach climate risk reporting, and specifically, why must Savings and Credit Cooperatives (SACCOs) embrace Climate Risk Reporting?
The Impact of the Climate Crises
The impacts of the climate crises extend beyond the environment to impact business. Even where slower-moving weather events like droughts and coastal erosion are not so apparent, their impacts contribute to economic erosion. That is why the climate change risk mitigation agenda should concern companies greatly just as it concerns nations across the world.
Climate-Related Risks & Their Connectivity to Business
The nexus of Climate Risk and Business Sustainability is becoming clearer. It is now evident that Climate change presents economic risks as it impacts the long-term growth of the organization and in certain instances business continuity.
As each year passes by climate risks are becoming greater and the potential for loss is becoming higher. Climate change impacts such as flooding along the water bodies have led to loss of businesses in Kenya amounting to millions of shillings.
In the financial services space, climate-related risks include and are not limited to, loss of markets and debt defaults. When climate risks actualize, they heap pressure on the balance sheet and profitability of a business.
Climate risk reporting will enable SACCOs to identify climate-related risks, prepare for shocks and recover quickly whenever they occur. It helps financial services firms unearth links invisible or not-so-apparent risks to the physical world.
The Importance of Climate Risk Reporting for Financial Services Firms
Financial services firms have a responsibility to safeguard the assets and value of their shareholders.
Even though climate-related risks are not limited to SACCOs, they are particularly vulnerable as a majority of their members are directly or indirectly dependent on agriculture for income or well-being. Indeed, in the recent past, SACCOs have been particularly impacted by the dwindling incomes of their members who rely on this sector.
Additionally, the role of cooperatives in SME development is set to expand as Small and Medium-sized Enterprises become significant economic players in the country. We anticipate the level of economic threat posed by climate-related risks to also rise as more SMEs onboard as SACCO members.
SACCOs must seek to understand the impacts of climate-related risks within the multiple sectors where their members operate. A potential challenge is that SMEs operate in multiple sectors that are impacted differently by climate change. Without proper climate risk reporting, SACCOs run the risk of failure if SMEs in certain sectors or regions face an uncertain future and begin to be a drag on their liquidity and members’ savings mobilization.
Given that climate-related risks can lead to a drastic reduction in members’ income and loan defaults, climate risk reporting will help SACCOs prepare to make the shift from the safe terrain of employer ‘check-off’ loan system to serving their business members.
Climate Risk Reporting, A Proactive Strategy
Most publicly owned firms produce and disseminate various reports including the regularly published annual report to shareholders. However, more often than not, these reports do not disclose climate-related risks or at best mention them in passing.
Globally, there is a push to leverage climate risk reporting to mitigate climate change risks. Regulators in the financial services sector have responded to the climate change threat by enacting guidelines to help build a better, solid and more sustainable future for financial services firms.
In Kenya, The Central Bank of Kenya introduced Guidance on Climate-related Risk Management for licensed institutions under its purview. Now climate risk reporting will feature more prominently to ultimately inform credit and investment decisions.
Whereas reporting itself does not eradicate climate-related challenges it goes a long way towards enhancing preparedness, monitoring and enabling prompt intervention where necessary.
It is my view that Climate Risk Reporting should be mainstreamed and go beyond best practices.
Priority Actions – How SACCOs Can Deal with the Widening Risk Landscape
An organization that assesses and reports on climate-related risks is less likely to be caught flat-footed by the occurrence. Below are two priority actions that SACCOs can adopt to address these risks.
First, assess your SACCOs risks and evaluate their impacts. This will enable you to have a deeper understanding of the risks to enable you to make decisions that reduce your risk profile.
The second is to report on all material risks – both current and emerging. This has the benefit of making you thoughtful and deliberate in decision-making about where and when to allocate your capital. Decision-making may entail revising your lending policies based on the disclosure results.
Assessing and reporting and monitoring climate-related risks helps you in strategic planning. As you continuously monitor current and emerging risks, you get an opportunity to devise mitigating measures and course-correct if the risk situation deviates from its target level. This minimizes the likelihood of impact and the severity of climate change shocks on the organization.
More importantly, appropriate climate risk information can help SACCOs identify new opportunities for growth and develop new products. Also, climate risk reporting will enable SACCOs to make informed investment and credit decisions.
Going forward, it is clear that climate-related risks will increase and hence the need to be proactive. Now is the time to embrace climate risk reporting even in the absence of any legislation. The payoff is in preparedness, better allocation of capital and in informing strategy. Hopefully, these benefits add impetus to the push for climate risk reporting.
The writer is a Consultant and Sustainability Expert with Pro Excellence Management Consultants.
You can reach him at email@example.com / www.proexcellence-management.com
Finance and Investment
Limiting loans recovery from Guarantors
By Francis Mungai
In their pursuit to reduce non-performing loans, SACCOs have wielded almost unfettered powers in guarantors’ assets attachment. The ruling from the Cooperative Tribunal case 57 of 2021; Samuel Odhiambo Okope & 2 others (claimants) v Mwalimu National Savings & Credit Co-operative Society Limited & another (respondents), heralds a significant step on departure from this practice.
Securing a SACCO loan
SACCO Loans in Kenya are generally secured or collateralized by the borrower’s assets and on most occasions, a borrower is required to bring in a third party (guarantor) who can stand or use his assets (guarantor) to secure the loan facility.
The Claimants were guarantors to a loan issued to Charles Gwada Sudhe by Mwalimu National SACCO. Charles defaulted on the loan amounting to Sh1,018,916.46 and the SACCO proceeded to attach the assets of the guarantors to recover the loan. The Claimants protested this action, but the SACCO was unbowed. The dispute was then brought before the tribunal.
The SACCO defended its action at the co-operative tribunal by offering the following reasons among others:
- That in guaranteeing repayment of the loan, the claimants accepted the liability to repay the loan upon default by the borrower which forms a separate agreement between the claimant and the SACCO.
- That the attachment of the Claimant’s assets was done in strict adherence to the law where the SACCO was exercising its right of recovery of the loan advanced to the borrower whom the Claimants guaranteed.
Matters for determination
There were two key issues for determination at the tribunal. The first issue was whether the guarantors had a duty towards the SACCO to repay the borrower’s loan on default and secondly whether the SACCO was right in attaching the guarantors’ assets upon default of the borrower’s loan. An ancillary matter also for determination was who carries the cost of the suit. We will focus our attention on the two key issues.
An important consideration in this matter is the contractual agreement between the guarantor and the SACCO and indeed the SACCO’s defence was anchored on contract law and more specifically on case law Fidelity Commercial Bank Limited – vs- Kenya Garage Vehicle Industries Limited  eKLR. Where the court observed that:
Because a contract of guarantee is essentially a contract, the following basic principles of contract law will apply. A contract of guarantee binds the person giving a guarantee to honour its terms irrespective of any dispute that may be existing between the parties to the transaction for which the guarantee was given. A guarantee is therefore an accessory contract by which the guarantor undertakes to be answerable to the provisions for the debt or default of another person whose primary liability to the promise must exist.
The issue of guarantee is then thrust into centre stage, what then is a guarantee? and are there limitations on its application? In examining this question, we must look at the guarantee from two lenses. Is the guarantee provided to the SACCO by guarantors a pure form (perfect indemnity) or a conditional form (payment subject to specific events occurring?)
Defining a guarantee
A Guarantee is defined as an undertaking to answer for the payment or performance of another person’s debt or obligation, in the event of default by the person primarily responsible for it. A guarantee is a secondary obligation because it is contingent on the obligation of the borrower to the beneficiary of the guarantee (SACCO). On the other hand, an indemnity is a contractual promise to accept liability for another’s loss. It is a primary obligation because it is independent of the obligation of a borrower to the beneficiary of the indemnity (SACCO) under which the loss arose.
This definition did come into play in deciding this case, for example, the claimants argued that the SACCO by-laws explicitly stated that in the event of a default, the SACCO would take up the matter with the borrower through a tribunal mechanism and while the SACCO averred that this was a discretionary measure available to the SACCO and did not limit its powers to attach the guarantors’ assets. The tribunal agreed with the claimants that the SACCO needed to demonstrate that they had pursued all other avenues of collecting the debt (including using a tribunal) before attaching the guarantors’ assets.
In the end, the tribunal ruled in favour of the claimants on all the prayers. The lesson to be picked here is that SACCO management boards must relook their debt enforcement measures. Guarantees can no longer be treated as blanket indemnities; there is a burden placed on SACCOs to ensure that the principal debtor is pursued at his level at length before effecting attachment measures on guarantors. Further, SACCOs will need to review their existing by-laws for any unnecessary burden that may be placed on the SACCO in pursuit of debt collection.
The author is the Audit Partner at FH Consulting, Certified Public Accountants. You can reach him on firstname.lastname@example.org www.fhc-ea.com
ASK THE LAWYER
1. How far can an apex body like KUSCCO Ltd go in assisting a SACCO member get their savings back from an adamant SACCO? Jackline Kweya, Meru
ANSWER: KUSCCO Limited is an umbrella body of member primary SACCOs. Its role is to represent these SACCOs and do advocacy on their behalf. SACCO rules/guidelines apply in the event a member wants their savings back.
2. Are SACCO members allowed by law to whistle-blow to report gross mismanagement in a SACCO? If yes, which is the right institution to whistle blow to? Onesmus Murutu, Embu
Yes. The authority responsible for oversight of Saccos is SASRA. Should the mismanagement be criminal in nature, you may also report it to the police.
3. Who is mandated by law to forward unclaimed financial assets to the UFAA and at what point are institutions supposed to forward unclaimed assets to UFAA? Name of SACCO withheld
Any person (this includes both natural and legal persons) holding assets presumed abandoned may forward the same to the custody of the Authority as unclaimed assets. Before remitting the same to the UFAA, the person must try to notify the owner before remitting/surrendering the assets.
4. Can a SACCO society be placed under receivership? If yes, on what grounds? Name of SACCO withheld
Yes a SACCO can be placed under receivership on grounds of liquidity problems caused by mismanagement of the officials.
5. In the case of SACCO capital shares held by a member, when one is withdrawing, what happens if a member fails to get someone to sell to since they are non-withdrawable? Kennedy Ouma, Ngong’
MostSACCOs, will on request, agree to transfer your shares to incoming new members. Please talk to your SACCO to reach an agreement.
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