Topic: Corporate governance framework

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Ghana has adopted the principles published by the organization for Economic Co-operation and Development (OECD) which deal mainly with performance problems that result from the separation of ownership and management of a company. Explain FIVE (5) principles of corporate governance.

Five principles of corporate governance

Most corporate governance codes are based on a set of principles founded upon ideas of what corporate governance is meant to achieve. This is based on a number of reports.

  1. To ensure adherence to and satisfaction of the strategic objectives of the organisation, thus aiding effective management.
  2. To minimize risk, especially financial, legal and reputational risks, by ensuring appropriate systems of financial control are in place, systems for monitoring risk, financial control and compliance with the law.
  3. To promote integrity, that is straightforward dealing and completeness.
  4. To fulfill responsibilities to all stakeholders and to minimize potential conflicts of interest between the owners, managers and wider stakeholder community.
  5. To establish clear accountability at senior levels within an organisation. However, one danger may be that boards become too closely involved with day-to-day issues and do not delegate responsibility to management.
  6. To maintain the independence of those who scrutinize the behaviour of the organisation and its senior executive managers. Independence is particularly important for non-executive directors, and internal and external auditors.
  7. To provide accurate and timely reporting of trustworthy/independent financial and operational data to both the management and owners/members of the organisation to give them a true and balanced picture of what is happening in the organisation.
  8. To encourage more proactive involvement of owners/members in the effective management of the organization through recognizing their responsibilities of oversight and input to decision making processes via voting or other mechanisms.

Note: Some students may approach this question from the perspective of the OECD principles of corporate governance as follows:

  1. The right to shareholders: Shareholders should have the right to participate and vote in general meetings of the company, elect and remove members of the board and obtain relevant and material information on a timely basis. Capital markets for corporate control should function in an efficient and timely manner.
  2. The equitable treatment of shareholders: All shareholders of the same class of shares should be treated equally, including minority shareholders and overseas shareholders impediments to cross- border shareholding should be eliminated.
  3. The role of stakeholders: Rights of stakeholders should be protected. All stakeholders should have access to relevant information on regular and timely basis. Performance-enhancing mechanisms for employee participation should be permitted to develop. Stakeholders, including employees, should be able to freely communicate their concerns about illegal or unethical relationships to the board.
  4. Disclosure and transparency: Timely and accurate disclosure must be made of all material matter regarding the company, including the financial situation, foreseeable risk factors, issues regarding employees and other stakeholders and governance structure and policies. The company approach to disclosure should promote the provision of analysis or advice that is relevant to decisions by investors.
  5. The responsibilities of the board: The board is responsible for the strategic guidance of the company and for the effective monitoring of management. Board members should act on a fully informed basis, in good faith, with due diligence and care and in the best interest of the company and its shareholders. They should treat all shareholders fairly. The board should be able to exercise independent judgement; this includes assigning independent non-executive directors to appropriate tasks.

Reporting on corporate governance is one way of ensuring transparency. Based on recent corporate governance concerns, explain FIVE (5) issues that are contained in corporate governance reports. [10marks]

Issues contained in corporate governance reports.

All corporate governance reports (included Ghana’s Code of Best Practices in Corporate Governance) state that board directors should explain their responsibility for preparing accounts. They should report that the business is a going concern, with supporting assumptions and qualifications as necessary.

In addition, further statements required include:

  1. Information about the board of directors: the composition of the board in the year, the role and effectiveness of the board, information about the independence of the non-executives, frequency of, and attendance at, board meetings, how the board’s performance has been evaluated. For example, the South African King Report suggests a charter of responsibilities should be disclosed.
  2. Brief report on the remuneration, audit and nomination committees covering terms of reference, composition and frequency of meetings.
  3. Information about relations with auditors, including reasons for change and steps taken to ensure auditor objectivity and independence when non-audit services have been provided (Ghana’s code requires that audit and non-audit fees are disclosed).
  4. A statement that the directors have reviewed the effectiveness of internal controls, including risk management. Also sufficient disclosures should be given for shareholders to understand the main features of the risk management and internal control processes. Board should also give details of, or at least confirm, any action taken to remedy significant failings or weaknesses. (This is required by Ghana’s Code).
  5. A statement on relations and dialogue with shareholders.
  6. A statement that the company is a going concern. (This is required by Ghana’s Code).
  7. Sustainability reporting, defined by the King Report as including the nature and extent of social, transformation, ethical, safety, health and environmental management policies and practices.
  8. A business review
  9. A statement detailing the compliance by the organisation with corporate governance, legal and statutory requirements. (This is required by Ghana’s Code)
  10. Ghana’s Code of Best Practices in Corporate Governance also requires the following disclosure:

The board should also ensure that information is disclosed on the following matters in the annual report insofar as they are relevant to the period under review –

(a) All management fees paid by the corporate body with details of the names of the parties and their relationship to the compote body;

(b) The identities and percentage holdings of substantial shareholders;

(c) significant cross shareholding relationships;

(d) Related party transactions;

(e) Details of incentive schemes, such as stock option scheme;

(f) The fees paid to the auditors of the corporate body for audit and non-audit related work; and

(g) Any other material issues concerning employees and other stakeholders such as creditors and suppliers.

Corporate governance is now a very popular and important area in strategic management. However, corporate governance is poor in a number organisation.
Explain FIVE(5) symptoms of poor corporate governance [10marks]

Five symptoms of corporate governance

  1. Domination by a single individual A feature of many corporate governance scandals has been boards dominated by a single senior executive with other board members merely act as a rubber stamp. Sometimes the single individual may bypass the board to action his own interests. This can result in management and directors awarding themselves remuneration and company perks that do not align with company performance or shareholder interests. This is an inherent problem in agency theory.

Even if an organisation is not dominated by a single individual, there may be other weaknesses. The organization may be run by a small group centered round the Chief Executive and Chief Financial Officer and appointments may be made by personal recommendation rather than a formal, objective process.

  1. Lack of involvement of board Boards that meet irregularly or fail to consider systematically the organization’s activities and risks are clearly weak. Sometimes the failure to carry out proper oversight is due to lack of information being provided.
  2. Lack of adequate control function Another potential weakness is a lack of adequate technical knowledge in key roles, for example in the audit committee or in senior compliance positions. A rapid turnover of staff involved in accounting or control may suggest inadequate resources, and will make control more difficult because of lack of continuity.
  3. Lack of supervision Employees who are not properly supervised can create large losses for the organization through their own incompetence, negligence or fraudulent activity. The behaviour of Nick Leeson, the employee who caused the collapses of Barings bank was not challenged because he appeared to be successful, whereas he was using unauthorized accounts to cover up his large trading losses. Leeson was able to do this because he was in charge of dealing and settlement, a systems weakness of lack of segregation of key roles that featured in other financial frauds.
  4. Lack of independent scrutiny External auditors may not carry out the necessary questioning of senior management because of fears of losing the audit, and internal audit do not ask awkward questions because the Chief Financial Officer determines their employment prospects. Often corporate collapses are followed by criticisms of external auditors, such as the Barlow Clowes affair were poorly planned and focused audit work failed to identify illegal use of client monies.
  5. Lack of contact with shareholders Often, board members grow up with the company and lose touch with the interests and views of shareholders. One possible symptom of this is the payment of remuneration packages that do not appear to be warranted by results.
  6. Emphasis on short-term profitability Emphasis on success or getting results can lead to the concealment of problems or errors, or manipulation of accounts to achieve desired results.
  7. Misleading accounts and information Misleading figures are often symptomatic of other problems (or are designed to conceal other problems) but clearly poor quality accounting information is a major problem if markets are trying to make a fair assessment of the company’s value. Giving out misleading information was a major issue in the Enron scandal as discussed previously.

A chairman of the board of directors leads the board in meetings. The board chairman plays a crucial role in developing a focused and effective board. The competence of the chairman of the board of directors is crucial to ensure that the company’s board is effective.

Required:

Explain FIVE (5) reasons to justify the need to separate the roles of the Chairman and Chief Executive Officer (CEO) of a company.

Reasons to Justify the Separation of Chairman and CEO Roles:

  1. Director Communication:
    • A separate chairman provides a more effective channel for the board to express its views on management. This ensures that the board’s concerns and perspectives are communicated clearly without any conflict of interest that may arise if the roles were combined.
  2. Guidance to the CEO:
    • A separate chairman can provide the CEO with guidance and feedback on the performance of the Managing Director/CEO. This relationship allows for constructive oversight and mentorship, which is essential for the CEO’s development and the company’s strategic direction.
  3. Focus on Shareholders’ Interests:
    • The chairman can focus on representing shareholders’ interests and ensuring that the board’s decisions align with the long-term goals of the company. This focus might be diluted if the CEO, who also manages day-to-day operations, holds the chairman position.
  4. Enhanced Governance:
    • A separate chairman allows the board to more effectively fulfill its regulatory and governance responsibilities. The chairman can lead the board in setting the agenda, ensuring that governance practices are maintained, and providing oversight without being involved in daily management tasks.
  5. Long-term Strategy Focus:
    • The chairman can focus on the long-term strategy of the company, while the CEO can concentrate on short-term operational performance. This separation of focus ensures that both immediate and future needs of the company are addressed effectively.
  6. Succession Planning:
    • A separate chairman can more effectively focus on corporate succession plans. By separating the roles, the board can ensure that there is a clear succession plan in place, which is critical for the company’s continuity and stability.

ABB Bank Ltd (ABB Ltd) is a listed company. It has been given a substantial fine by the Central Bank for serious breaches of the banking regulations and, in the same month, the bank reported that it had suffered large losses because of unauthorized dealings in financial derivatives by a manager in its treasury department. The company’s reported profits for the previous financial year were overstated because of these losses.

The chairman of the audit committee of ABB Ltd has resigned, accepting responsibility for failures by the committee. A newly-appointed director has been made chairman of the audit committee. He has called a meeting with you, the Finance Director. The purpose of the meeting is to review financial reporting and internal control, with a view to making recommendations to the board. ABB Ltd does not have a strong internal audit function, and the company has been using the same firm of external auditors since it acquired its listing 8 years ago.

Required:

a) Explain the role and responsibilities of the audit committee of ABB Ltd with regards to:

i) The external audit of the company’s financial statements; and (6 marks)

ii) The internal control system and internal audit function. (6 marks)

b) In relation to the possible failures in internal controls that have occurred, suggest FOUR (4) changes that might be recommended to the board at the next board meeting. (8 marks)

a) Role and Responsibilities of the Audit Committee (12 marks)

i) Role in External Audit (6 marks):

  • Monitoring Financial Integrity: The audit committee should monitor the integrity of the company’s financial statements. This requirement means that the audit committee has responsibilities regarding the external audit.
  • Reviewing Audit Findings: The committee, in consultation with the auditors, reviews the findings of the audit. At the end of the audit cycle, it should assess the effectiveness of the audit. This assessment should include considering the way in which key accounting judgments have been treated and also obtaining feedback about the auditors’ conduct from individuals within the company, such as the Finance Director.
  • Auditor Appointment: The audit committee should make recommendations to the board in relation to the appointment, re-appointment, or removal of the company’s external auditors. These recommendations are put to the shareholders for approval in the company’s general meeting. The committee should also approve the remuneration and terms of engagement of the external auditors that have been negotiated with the auditors by management.
  • Ensuring Independence: The audit committee should review and monitor the independence of the external auditors and the objectivity and effectiveness of the audit process. Regarding auditor independence, the committee should develop and implement the company’s policy on using the external audit firm for non-audit work, consistent with the ethical guidelines of the auditing profession.
  • Evaluating Audit Failures: The audit committee should review the reasons why the fraud by the employee in the treasury department was not identified, and whether the external auditors may have been at fault in any way in failing to identify the problem. Although auditors do not have responsibility for preventing and detecting fraud, they might be expected to identify and report suspicions of fraud uncovered during the audit.

ii) Role in Internal Control and Internal Audit (6 marks):

  • Reviewing Internal Controls: The audit committee should review the company’s internal financial controls. Unless addressed by the board as a whole or by another board risk committee consisting of independent directors, it should also review the company’s internal control system.
  • Considering Internal Audit Needs: If the company does not have a strong internal audit function, the audit committee should consider annually whether there is a need for such a function and make a recommendation to the board. If the decision is made not to have an internal audit function, the reasons should be explained in the audit committee’s report to shareholders in the annual report.
  • Evaluating Whistle-blowing Procedures: The audit committee should review the adequacy of whistle-blowing arrangements in the company, ensuring that there are mechanisms for employees to report concerns about misconduct or fraud confidentially.

b) Recommended Changes to Address Internal Control Failures (8 marks):

  • Strengthening Internal Controls: The fine for breach of banking regulations may indicate a failure by company employees to apply appropriate procedures or inadequate procedures within the company to ensure compliance. Management should maintain a proactive approach to identifying vulnerabilities and implementing effective internal controls to prevent serious breaches.
  • Segregation of Duties: The fraud by the employee might have been enabled by lax financial controls and possibly inadequate whistle-blowing procedures. Ensuring the segregation of duties involving asset custody, transaction authorization, and record-keeping is crucial. No single employee should be in a position to both commit and conceal fraudulent activities.
  • Investigating Control Failures: The adequacy of the company’s internal controls should be reviewed urgently. The audit committee, especially under its new chairman, should lead the investigation into the internal control failures and assess whether the external auditors played any role in failing to detect the issues.
  • Establishing an Internal Audit Function: Given the internal control issues, the audit committee should recommend establishing a robust internal audit function to the board. This function would provide continuous oversight of the company’s controls and help prevent future issues.

The banking sector in Ghana has witnessed the withdrawal of licenses of seven indigenous commercial banks by the Bank of Ghana. These banks were in serious financial distress that they had to be taken over by another bank. UT Bank and Capital Bank were taken over by the GCB Bank in 2017 because they were in serious financial distress. The Bank of Ghana in August 2018 created the Consolidated Bank Ghana Limited to take over Unibank, Beige Bank, Sovereign Bank, The Royal Bank, and Construction Bank for similar reasons.

Different views about who or what was to blame for the crisis have been advanced, but many commentators agree that senior bankers and the Bank of Ghana had failed to recognize the early signs or ignored the indicators until it was too late. When companies collapse, there is often evidence of poor corporate governance.

Required:
Discuss FOUR (4) ways in which the difficulties faced by these banks may have been attributable to weak or inadequate corporate governance systems.

Inadequate Corporate Governance Systems and Their Contribution to the Financial Distress in the Ghanaian Banking Sector

  1. Failure to Review Internal Control Systems:
    • It is a requirement of good corporate governance that the board of directors should review the effectiveness of the system of internal control (including financial, operational, and compliance controls) and risk management. However, it is probable that in some banks, the systems of control were inadequate for their purpose. The complexity of banking operations may have exceeded the board’s understanding, leading to insufficient oversight and excessive uncontrolled risk.
  2. Dominance by Key Individuals:
    • In some banks, there may have been a dominance of power by key individuals such as the CEO or board chairpersons, which could have led to poor decision-making. The non-executive directors (NEDs) may not have acted effectively as a counter-balance to these dominant figures, allowing high-risk strategies to proceed unchecked.
  3. Ineffective Non-Executive Directors (NEDs):
    • The supervisory role of NEDs is crucial in corporate governance. However, in these cases, the NEDs may have failed to provide the necessary challenge to management’s decisions, particularly those involving high risk. This raises questions about the effectiveness of annual performance evaluations of NEDs and their ability to contribute meaningfully to board decisions.
  4. Lack of Transparency in Financial Reporting:
    • Transparency in financial reporting is essential for good governance. The financial statements of these banks may have been overly complex, making it difficult for even experienced investors to understand the true financial position of the banks. This lack of clarity could have prevented shareholders and regulators from identifying the extent of the banks’ financial difficulties in time to take corrective action.

Muntaka Property Investments Ltd (MPI) owns a variety of shopping centres and retail units throughout Ghana. Last year, it decided to build a new outlet shopping centre in Adenta, Accra City, in the belief that the opening of the new light-rail line in this area would facilitate customer access to this centre and could attract customers from all parts of the country. To finance this development, MPI decided to sell some of its other properties. One of these properties was a small retail park located within three kilometers off Weija (a large provincial town). Gyeabour, a director of MPI, was tasked with overseeing this sale. Within three weeks of the Weija property being advertised for sale, Gyeabour reported that he had received an offer on the property for the full asking price. Delighted with this, the Board of MPI authorized Gyeabour to effect the sale of this property.

However, two months after the sale was completed, it was announced that one of the largest pharmaceutical companies in the world was establishing its global head office on the site adjacent to the former Weija property, and as a consequence of this fact, the value of the property had already increased by an excess of 60%. Upon further investigation, MPI discovered that the Weija property was purchased by Gyasco Properties Ltd., a company wholly owned by Gyeabour’s two sons, and that the mother-in-law of one of these sons is a local politician in Weija. Consequently, she would have been aware of the impending purchase of the adjacent property by the pharmaceutical company.

Required:
Describe a director’s fiduciary duty regarding conflict of interest and determine whether this duty has been breached by Gyeabour in this situation.

Director’s Fiduciary Duty Regarding Conflicts of Interest

  • Directors must not put themselves in a position whereby their personal interests and those of the company are in conflict. This duty is judged objectively and therefore the motives of the directors are immaterial within the ambit of this duty.

(2 marks)

  • The following actions by directors are also considered a breach of this duty:
    • Failure to disclose their interests in company contracts or making a secret profit from company transactions.
    • Diverting business opportunities from the company.
    • Acting in competition with the company and using confidential information from one business to benefit another business.

(3 points @ 2 marks each = 6 marks)

Breach of Duty in Gyeabour’s Case

  • In this situation, the actions of Gyeabour are in breach, as he had a substantial conflict that he failed to disclose.

One of the important tasks in the formulation of corporate strategy is stakeholders’ analysis.

Required: Explain the term stakeholders and identify TWO groupings of stakeholders. (4 marks)

A person, group or organization that has interest or concern in an organization. Stakeholders can affect or be affected by the organization’s actions, objectives and policies.

Groupings of stakeholders When identifying stakeholders it is not enough to focus on the formal structure of the organisation. It is necessary to have a look at informal and indirect relationships too. There are a number of ways of classifying stakeholders according to criteria based on how stakeholders relate to organisational activities. A useful model for this purpose is to visualize the stakeholder environment as a set of inner and outer circles. The different classifications of organisational stakeholders are:

  1. Internal and external stakeholders
  2. Narrow and wide stakeholders
  3. Primary and secondary stakeholders
  4. Active and passive stakeholders
  5. Voluntary and involuntary stakeholders
  6. Legitimate and illegitimate stakeholders
  7. Financial and Non-financial stakeholders
  8. Internal versus external stakeholders Here, stakeholders are distinguished depending on whether they are part of the organisation – i.e. have a formal working relationship with the organisation – or are external to the organisation. Internal stakeholders include employees, management and board of directors, and possibly trade unions. External stakeholders include customers, competitors and suppliers. It could also include all other groups which do not form part of the internal organisation’s structure.
  9. Narrow versus wide stakeholders This classification describes the degree to which the stakeholder group is affected by the activities of the organisation.

Narrow stakeholders are used to describe stakeholders who are most affected or who are most dependent on organisational output. Examples of such stakeholders include shareholders, employees, management, customers and suppliers.

Wide stakeholders, on the other hand, refer to those who are less affected or dependent on the organisation’s output. This category includes government and its agencies, the wider community and non-dependent customers.

Agency problems are inherent in static corporate structures. This conflict arises when separate parties in a business relationship, such as a corporation’s managers and shareholders, have disparate interests. Corporations employ several dynamic techniques to circumvent static issues resulting from agency problems.

Required:

Identify FOUR measures which shareholders may seek to resolve any agency problems that arise. (4 marks)

  • Increased Shareholder Voting Power: Shareholders can seek to strengthen their voting power, especially on key issues like executive compensation and board appointments, to ensure that their interests are represented and that management is held accountable.
  • Appointment of Independent Directors: Shareholders may push for the appointment of independent directors to the board, who can provide unbiased oversight and prevent management from pursuing self-interested actions that do not align with shareholder value.
  • Regular Performance Reviews: Implementing regular performance reviews for executives, tied to clear, measurable goals, can help ensure that management is working in the best interest of shareholders. This can include setting up committees to evaluate executive performance against agreed objectives.
  • Transparency and Disclosure: Shareholders can demand greater transparency and disclosure of management actions, decisions, and company performance. This can include regular, detailed financial reporting and open communication about company strategy and risk management practices.

Covenant Mission (CM) is a non-governmental organisation that provides charitable support to disadvantaged families.

It is currently involved in a number of community projects to assist in the provision of clean water supply to families in Liberia, Nigeria, and the Gambia. In its home country, Ghana, it focuses more on assisting clients in accessing state-granted financial support as well as providing counselling and psychological support to less privileged people.

The NGO has grown very rapidly in recent years as demand for its services has increased. In line with this rising demand, it has begun to slowly evolve from an enterprise primarily run by volunteers to an institution employing professional managers from the private sector. These changes are considered essential in supporting the sustainability of the charity.

The board of trustees at the NGO recognizes the need to adopt a relevant code of ethics as part of necessary governance support structures. They are, however, concerned about recent criticism of such codes and wish to ensure that any code developed is effective throughout the organization.

Required:

a) Advise CM on FOUR fundamental principles to be included in its code of ethics. (8 marks)

b) Explain FOUR benefits of good corporate governance to CM. (12 marks)

a) Fundamental Principles to be Included in a Code of Ethics:

  1. Integrity: Integrity involves being straightforward and honest in all professional and business relationships. CM must ensure that all members act with integrity in their interactions with beneficiaries, donors, and stakeholders, fostering trust and credibility.
  2. Objectivity: Objectivity requires that CM members not allow bias, conflict of interest, or undue influence from others to override professional or business judgments. This principle ensures that decisions are made in the best interests of the beneficiaries without favoritism or prejudice.
  3. Confidentiality: Confidentiality entails respecting the privacy of information acquired as a result of professional and business relationships. CM must ensure that sensitive information about beneficiaries or operations is protected and only disclosed when authorized or legally required.
  4. Professional Competence and Due Care: This principle emphasizes maintaining professional knowledge and skill at the level required to ensure that services provided are based on current practices, legislation, and techniques. CM should ensure that all members act diligently and in accordance with applicable standards, particularly as the organization transitions to employing professional managers.

(Total: 8 marks)

b) Benefits of Good Corporate Governance:

  1. Enhanced Accountability and Transparency: Good corporate governance ensures that CM’s activities are conducted in an open and transparent manner, which builds trust with stakeholders, including donors, beneficiaries, and regulatory bodies. This transparency is crucial for maintaining the NGO’s reputation and securing ongoing support.
  2. Improved Decision-Making: By adopting good governance practices, CM can benefit from more structured and informed decision-making processes. The involvement of professional managers and a well-defined board of trustees ensures that decisions are made after careful consideration of all relevant factors, leading to more effective and efficient operations.
  3. Sustainability and Long-Term Success: Good governance practices contribute to the sustainability of CM by ensuring that resources are managed efficiently and responsibly. This approach not only helps in achieving immediate objectives but also secures the long-term future of the NGO, allowing it to continue serving disadvantaged communities.
  4. Risk Management: Effective governance frameworks include robust risk management practices, which help CM identify, assess, and mitigate potential risks that could affect its operations. This proactive approach to risk management protects the NGO from financial, operational, and reputational harm, ensuring continuity of services.

(Total: 12 marks)