BENIN Law and Practice Contributed by: Nicolin Assogba, D2A SCPA
Independence, Gender Balance and the Public Sector For listed companies, the BRVM Governance Code recommends the presence of independent direc - tors and a gender balance, with no single gender to exceed two-thirds of the board. In public enterpris - es, the composition is predetermined by law, which reserves seats for representatives of the relevant min - istries, appointed on the basis of their experience in the sector concerned. 3.4 Appointment and Removal of Directors/ Officers Appointment and Removal Under the General Regime The directors of an SA are appointed by the ordi - nary general meeting and may be removed by it at any time, without notice or compensation (removal ad nutum). The chairperson, the managing director and the deputy managing directors are, for their part, appointed and removed by the board of directors. Certain persons may not be appointed as officers owing to incapacity, incompatibility or prohibitions resulting, in particular, from criminal convictions or measures following insolvency proceedings. The Regime Specific to Public Enterprises In public enterprises, directors and state representa - tives are appointed by decree adopted in the Council of Ministers, for a term that, during the company’s life, may not exceed three years. The managing director is recruited and removed by the board of directors, with the appointment and removal pronounced in the Council of Ministers by means of a performance con - tract. 3.5 Independence of Directors Conflicts of Interest and Regulated Agreements OHADA law addresses independence less through a status of independent director than through the regu - lation of conflicts of interest. Agreements concluded between the company and one of its officers, or in which an officer has an interest, are subject to prior authorisation by the board, a report from the statu - tory auditor and approval by the meeting. Loans, over - drafts and guarantees granted by the company to its officers who are natural persons are, for their part, simply prohibited.
where it has no more than three, it may be run by a single general administrator. Variation by Form The SARL is administered by management, without a mandatory board, and the SAS organises its manage - ment freely around a president. Public enterprises, for their part, follow a structure imposed by Law No 2020- 20, with a board of three to seven members, smaller than that of the general regime. 3.2 Board Members Chairpersonship and General Management In an SA with a board of directors, two configurations are possible. The chairpersonship and general man - agement may be combined in a chairpersonship-and- managing director, or separated between a chairper - sonship of the board, responsible for organising its work, and a managing director, vested with effective management. The managing director may be assisted by one or more deputy managing directors. Directors and the General Administrator Directors do not exercise individual power: they delib - erate collectively within the board and take part in overseeing management. In the simplified SA with a restricted shareholder base, the general administrator combines the functions of administration and man - agement. These roles are found, in a similar form, in public enterprises, where the managing director pre - pares the budget and investment plans submitted to the board. 3.3 Board Composition Number and Qualities of Members The board of directors of an SA comprises 3–12 mem - bers, who may or may not be shareholders, within defined proportions. A legal person may be a director, provided that it designates a permanent representa - tive subject to the same obligations as if he or she sat in their own name. In addition, a natural person, whether sitting in their own name or as the permanent representative of a legal person that is a director, may not belong to more than five boards of directors of public limited companies having their registered office in the same OHADA member state.
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