We are pleased to introduce the third edition of Africa Focus. We are thrilled with this edition, which features six different topics that go to the heart of existing challenges and opportunities on the African continent.
Continuing a theme we began in previous issues of Africa Focus reviewing alternative ways to finance projects, we discuss "Islamic Finance in Africa" as an increasingly popular option for investors. "Powering Africa: The LNG gas-to-power option" looks specifically at the energy sector and the appeal of LNG gas-to-power projects in Africa, while "Renewable energy in Africa in the era of climate change" examines the enormous potential for renewable energy on the continent. In "Mozambique: Beyond mining," our team covers economic diversification through resource-based infrastructure by exploring progress to date in Mozambique and how the country is opening up its mining logistics infrastructure to drive diversification of its economy. "Business and human rights in Africa" presents the hugely important topic of the need for investors in African countries to be conscious of a growing focus on human rights. In addition, "The long arm of the law: Bribery and corruption enforcement investigations" discusses challenges that both individuals and companies doing business in Africa face in the form of the risks around bribery and corruption.
Many of these topics were highlighted during UK Prime Minister Theresa May's recent trip to Africa. White & Case was proud to have our partner Josh Siaw accompany the Prime Minister on this week-long trip, which included visits to South Africa, Nigeria and Kenya. Josh was the only representative from a law firm to be a part of the Prime Minister's traveling party, and allowed us to gain useful insights into key political and business issues raised during the trip's discussions. Linking to some of the themes we cover in this third edition of Africa Focus, strong topics that emerged during the trip included partnerships, how collaboration is essential for successful investment opportunities and the deep interest among investors in exploring different ways to finance projects on the continent. Josh also reported back on the strong link—repeatedly discussed through the week—between aid and trade, as well as the importance of achieving a healthy balance that brings benefits to all. Josh will expand on some of the themes from the visit in our next issue.
We hope you enjoy reading Africa Focus, and please let us know if there are topics or issues you would like us to cover in future editions.
LNG Gas-to-Power Option for Africa
Current LNG gas-to-power projects could successfully pave the way for other African countries.
Africa has a chance to be a true innovator for the Islamic finance industry
Although Islamic finance assets still represent less than 1 percent of global financial assets, and growth slowed somewhat in 2017, the global Islamic asset base grew from approximately US$200 billion in 2003 to an estimated US$2 trillion at the end of 2016. It is projected by some industry experts to surpass the US$3 trillion mark by 2020.1
Unsurprisingly, Islamic banking and finance assets have concentrated historically in the Middle East and Malaysia. These markets currently account for more than 80 percent of industry assets. In the past five years though, stakeholders from traditionally non-Islamic majority jurisdictions—including Europe and East Asia—have also entered the Islamic finance market or indicated their intention to participate in Islamic finance transactions.
Africa, in particular, is a region in which Islamic finance could and, indeed, should thrive. The continent has a Muslim population of approximately 636 million, representing almost 53 percent of Africans.2 The Muslim population in sub-Saharan Africa is projected to grow by nearly 60 percent from 242.5 million in 2010 to 385.9 million in 2030.3 Furthermore, a vast infrastructure development deficit creates financing needs, towards which Islamic finance could make a significant contribution.
Some African countries have already started taking steps to support the local uptake of this financing mechanism.
Among others, South Africa, Nigeria, Kenya, Senegal, Djibouti, Uganda and Morocco have all introduced legal and regulatory frameworks to promote the development of Islamic finance products in their respective jurisdictions. Examples include recent changes to Kenya's stamp duty and VAT regulation to create a more level playing field between Shari'ah-compliant and conventional products. Nigeria, Tunisia and South Africa are now home to Islamic banks and takaful (Islamic insurance) companies. Several traditional banks across the continent have also started to offer Shari'ah-compliant banking products through "Islamic windows."
Also, in the public sector, regional governments have either started issuing international or domestic sukuk or "Islamic bonds" (such as South Africa, Senegal, Nigeria, Côte d'Ivoire and Togo) or have at least commenced preparatory work for their debut sovereign sukuk issuances (such as Tunisia and Morocco).
These developments are also encouraging from a macro-economic perspective generally. Islamic finance presents African nations with a unique and (to date) relatively underutilized mechanism to help address two of the most prevalent development issues pervading the continent: the needs to increase financial inclusion among the domestic population and to bridge the funding gap required for needed infrastructure (Figure 1).
Regarding financial inclusion, The European Investment Bank estimates that in 2017, as many as 350 million Africans did not have formal bank accounts.4 Therefore, the development of Islamic finance products—both together with and as an alternative to conventional banking and insurance offerings— could significantly increase Africa's financially underserved population's access to finance. That members of Africa's Muslim communities may be reluctant to accept financial services provided by conventional banks, on religious grounds, makes the need for Shari'ah-compliant financial products even more pressing.
Regarding Africa's infrastructure gap, foreign and domestic investments through Islamic finance provide significant opportunities to diversify the sources of funds to meet the African Development Bank's projected requirement of US$130-170 billion per year until 2025.5 Sukuk issuances tied to tangible assets and projects— such as roads, bridges, water and sanitation works and hospitals— provide cost-efficient means for African governments to address this infrastructure development demand. As can be seen in Figure 2, Islamic Finance is essential for unlocking investment from the Middle East but it also attracts investors from other parts of the world.
They also increase these governments' ability to tap the significant pools of liquidity held by Islamic investors based in the Gulf Cooperation Council (GCC) countries and Asia who are looking for viable investment opportunities in Africa.
Despite the above legislative and practical steps taken towards growing Islamic finance in Africa and the relatively untapped macroeconomic opportunity it represents, Islamic finance is still some way from being a mainstream form of finance across Africa. Here are some of the underlying structural issues that pose challenges to Islamic finance in Africa. These are not country-specific, but rather permeate the entire continent's markets, to a greater or lesser degree.
21%
The share of sub-Saharan African adults with a mobile money account by the end of 2017
World Bank
Regulatory gap
The existing laws of most African countries were not designed to cater to interest-free financings based on the sharing of economic risks and rewards, and achieving returns by reference to the performance of Shari'ah-compliant assets. These principles are fundamental to Islamic finance.
The need to create economically viable structures that do not rely on interest makes Islamic finance arrangements more complex than their conventional/non-Islamic equivalents, and they tend not to fit neatly within existing civil or common law frameworks. For example, while African governments may regularly issue local currency treasury instruments, these are typically conventional interest-bearing instruments. Structural amendments required to make these instruments acceptable to Islamic institutions and investors need to be carefully designed to avoid conflict with domestic tax rules and to maintain equality with traditional treasury instruments.
Similarly, general considerations for unsecured sukuk financings (which do not arise in conventional unsecured bond issuances) include:
How the laws of the relevant jurisdiction (including any foreign ownership restrictions) treat asset transfers, especially where onshore assets are to be contractually sold to foreign special-purpose vehicles
Whether the tax code (and any exemptions and reliefs laid out therein) of the relevant jurisdiction applies to sukuk issuances in the same way it does to bonds
If the tax code does not apply to sukuk issuances in the same way it does to bonds, how the regulatory treatment of sukuk (or other Islamic finance products for that matter) can be afforded equivalence to its conventional/non-Islamic counterparts under the applicable laws
Without amendments to existing tax codes, the asset-based nature of Islamic finance may trigger various tax payment obligations from country to country that are not involved in conventional financings. These could include registration tax/stamp duty land tax, VAT, capital gains tax and withholding tax. Regulatory consideration is required to harmonize these issues.
Clarity is crucial regarding the legal enforceability of Islamic finance products. And the increased costs of funding due to taxes need to be mitigated.
Without these, it will likely prove difficult to reach the critical mass necessary for Islamic finance to flourish. Public sectors will continue to borrow using traditional debt products. Commercial banks will find the legal risk and potential additional costs of Islamic finance unappealing. The establishment of specialist Islamic banks and other financial institutions will not be viable.
Overcoming these challenges requires that African governments continue to promote change in their regulatory systems to facilitate Islamic finance products and enhance their attractiveness to domestic and international stakeholders alike.
Islamic finance remains poorly understood across many markets, not only in Africa. With some validity, it is frequently considered to be more challenging to implement than conventional/non-Islamic finance techniques. Traditional aspects of modern commercial banking and capital markets practices have existed for many decades, but modern Islamic finance is—in relative terms—very new and niche. It comes as no surprise that potential end-users of Islamic finance, both in the public and private sectors, when given a choice, will often favor conventional over Islamic financing, just because it is more familiar.
Knowledge gaps are often a consequence of the applicable regulatory framework (or lack thereof) in the relevant jurisdiction.
So, they can be bridged by the introduction of the relevant regulations, as certain African governments are now doing.
Standardization of products, documentation, business practices and the question of what is and is not Shari'ah-compliant will also inevitably improve awareness of Shari'ah-compliant products and also increase the efficiency with which they can be deployed to meet public and private sector funding needs. This type of standardization is already present in other regions where Islamic finance is more widely used, such as the Gulf Cooperative Council states and Malaysia. To some degree, it will be a natural byproduct and facilitator of the growth of Islamic finance in Africa.
The relatively low penetration of formal banking services across Africa represents a barrier to entry for conventional and Islamic financial institutions offering Shari'ah-compliant banking products—such as Shari'ah-compliant personal loans, mortgages and takaful.
Much of Africa's population is accustomed to informal arrangements (such as loans from friends and family) and may be uninterested in or even actively resistant to transitioning to banking with formal financial institutions.
On the other hand, this limited financial penetration in Africa might present a tremendous opportunity for innovation in the sector. Africa is already well known as a hotbed for pioneering microfinance products and non-banking financial institutions. For example, M-Pesa is a mobile phone-based microfinance provider launched by Vodafone and Kenya's Safaricom in 2007 in Kenya and Tanzania, which has since then expanded to South Africa, Afghanistan, India, Romania and Albania and is currently used by more than 30 million customers globally.
Sub-Saharan Africa, in particular, exemplifies mobile money's potential to foster financial inclusion. According to the World Bank, while the share of adults in sub-Saharan Africa with a formal financial institution account barely moved between 2014 and 2017, the share of adults with a mobile money account almost doubled to reach 21 percent by the end of 2017 (in every other region, mobile money penetration is lower than 10 percent).6
It stands to reason then, as Islamic finance products and institutions become increasingly mainstream across the continent, that Shari'ah-compliant African microfinance products and institutions will also be developed to service unbanked (or underbanked) Muslim communities.
Already, Gulf African Bank and Safaricom have announced the launch of M-Sharia, a Shari'ah-compliant banking service through M-Pesa. Moreover, it is possible that such Shari'ah-compliant microfinance products and providers will, in turn, extend their reach from Africa into other jurisdictions, such as Southeast Asian countries, with large Muslim populations that cannot access the formal banking system due to low and irregular household incomes or poor credit records.
In this context, Africa has a chance to be a true innovator for the Islamic finance industry.
The above challenges are not new. The lack of access to banking may be considered a uniquely African problem only in terms of scale. Lessons from how this and other challenges were overcome in other parts of the world—from the United Kingdom to Hong Kong to the Middle East—are profoundly applicable in Africa.
Regulatory and knowledge gaps in Africa will take time to address, but positive trends are already evident.
Shari'ah-compliant regulatory frameworks are emerging in more and more African countries. African policymakers and end-users have also engaged with more developed Islamic finance markets to help them up the learning curve.
Some African financial institutions and government-related entities (such as the Kenyan Capital Markets Authority) have become members of the Islamic Financial Services Board (IFSB), a multilateral body based in Kuala Lumpur. Among other things, the IFSB issues, and facilitates the implementation of, global prudential and supervisory standards and other initiatives that foster knowledge sharing and cooperation among its members. For instance, since 2008, Bank Negara Malaysia has run more than 300 Islamic finance programs and study visits7 for more than 25 African countries, including Nigeria, Sudan, Tanzania and Kenya.
The Islamic Corporation for the Development of the Private Sector (ICD)—the private sector arm of Islamic Development Bank (IDB) and the largest Shari'ah-compliant multilateral development bank in the world—also continues to play a role in developing Islamic finance in Africa by arranging local sovereign sukuk issuances.
How governments, organs of state and the people of Africa respond to the challenges of Islamic finance and the extent to which they adopt Islamic finance as a financing tool could have a significant impact on the macroeconomic development of the continent in the foreseeable future.
Raising stakeholders' awareness and understanding of Islamic finance products and practices and the additional financing options they present can spur public and private sector demand for Islamic finance and the regulatory reforms required to meet this demand.
Bridging the regulatory gap can, in turn, help address Africa's financial inclusion deficit by encouraging the growth of—and innovation in—Shari'ah-compliant products, thus increasing the range of financial institutions, products and services available to the populace and, accordingly, increasing financial inclusion.
Moreover, providing African governments, companies and individuals with greater access to finance can play a major role in bridging Africa's infrastructure gap and promoting economic growth and social prosperity across the continent. Considerable work is still required to overcome the challenges standing in the way of Islamic finance flourishing in Africa, but clearly, the rewards will outweigh the effort.
