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RENEW’s Legal Corner: April 2022

By Tsegamlak Solomon | Wed Apr 06 2022
Our take on last month’s legal developments in the investment landscapes of Ethiopia, Rwanda and Uganda.

A Startup Proclamation that Incentivizes Startups and Investors is in the Making
Ethiopia is in the process of enacting a Startup Proclamation that aims to create an innovative ecosystem that is able to promote innovation and job creation. The proclamation that is currently in the draft stage is expected to bring solutions to some of the challenges that startups and innovative businesses face in Ethiopia including barriers to entry and exit, administrative challenges, and access to finance. 
One of the major measures taken by the Startup Proclamation is incentivizing angel investors to invest in startups and innovative businesses in Ethiopia. The incentives to such investors include tax breaks on capital gains tax and allowing debt investment, among others. [We will be publishing a white paper next week on angel investing in Ethiopia, and will include details on how the Startup Proclamation will likely impact angels.]
Road Transport Proclamation in the Pipeline
The Ethiopian Ministry of Transport and Logistics released a draft Road Transport Proclamation (Draft Proclamation), which, once enacted, will repeal the nearly decade and a half old Transport Proclamation No. 468/2005 (Transport Proclamation). The revision is needed in order to restructure the road transport sector in a manner that makes it competitive, safe and efficient and cognizant of the economic and social developments of the country. Below, we have summarized some of the major changes that are proposed by the draft proclamation as compared to the current one.
Railway Transport Sector Removed
The current proclamation regulates almost all forms of land transport including railway transport and their operators. However, in reality, this hasn’t been the case since 2017. With the enactment of the Railway Transport Administration Proclamation 1048/2017, the sector has been removed from the Transport Proclamation. Reinforcing that decision, the draft proclamation removed the regulation of railway transport from the scope of application. 
Maritime Transport Sector Removed
Similar to the railway transport sector, the maritime sector administration has been part of the Transport Proclamation. However, this has been removed from the transport sector and a separate regulation has been set up per the Maritime Sector Administration Proclamation No. 549/2007. Similarly, the draft proclamation reinforced that decision and left the maritime sector out of the scope of the transport sector regulation.   
Establishment of the National Road Transport Commission
Under the current Transport Proclamation, powers in relation to regulating the transport sector are given to the Transport Authority, which is empowered to promote an efficient, adequate, economical and equitable transport system. The new draft proclamation changes the name of the regulator to the National Road Transport Commission, which will have similar mandates to the Transport Authority. However, since there is a need to tie the works of the regulatory body with cross-border activities and neighboring countries, the decision is being taken to elevate the body to a commission.
The Use of Technology 
The draft proclamation emphasizes the need for integrating technology into the transport sector, which is also one of the major reasons for the need to revise the current Transport Proclamation. The use of technology is mainly introduced in relation to data collection and dissemination. The draft proclamation provides for the establishment of a data center for such purposes. 

Changes in the Coffee Sector Continue to Raise Concern 
A recent deal between the Ugandan government and Uganda Vinci Coffee Company Limited (UVCC) to set up a coffee processing plant in Uganda has raised concerns based on the exclusive rights given to the company to purchase all the Ugandan coffee to the exclusion of other players in the coffee sector. UVCC has been given free land in the Namanve Investment Park on a 49-year lease agreement and has been granted priority rights over the purchase of coffee to ensure its supply. There is also concern around the tax exemption extended to the investor. According to an article in the Monitor, the agreement, which lasts for a 10 year period, states that ‘the exemptions shall extend to taxes and impositions applicable to all the activities of the company and its foreign staff in respect to the export of green coffee beans.’
It further states that ‘where no exemption from tax is allowed under the law of Uganda or exemption provided is inadequate to provide the company with comprehensive relief from taxes or other impositions, then the government undertakes that it will bear the cost of all taxes.’ In effect, this ensures the company will not have to pay any taxes and puts taxpayer money at risk for a deal they had not previously been made aware of or approved. 
This agreement comes after the recent decision of the Ugandan government to withdraw its membership from the International Organization of Coffee Exporters where it previously has been a pivotal member. The timing also aligns with the new National Coffee Bill passed in August 2020, which requires the registration of coffee farmers and, according to the Monitor, has not been well received. 

Improved land rights for foreign investors may increase Rwanda’s attractiveness  
In an effort to position Rwanda as an entrepreneurial hub of Africa, significant changes continue to be made to the country’s laws in order to attract investments from all parts of the world. The new amendments to the land law n° 27/2021 of 10/06/2021 will likely play an instrumental role in achieving this. New land rights regarding state land leases and land concessions were revised alongside the existing rights that apply to nationals and foreigners in Rwanda.
Under the new amendments, an emphyteutic lease that initially stipulated a lease term of 49 years for investments and 20 years for a residential house extended the term to 99 years for both types of lease. This will likely encourage investors. 
Regarding freehold titles, historically a foreigner was only allowed full and exclusive rights to land by virtue of international bilateral agreements between Rwanda and other states, if they co-owned the land with a Rwandan citizen who had at least a 51% ownership stake, or were apportioned land in a special economic zone. The new revisions to the land law grants freehold rights to foreigners if approved by a presidential order in exceptional circumstances of strategic national interest. Though this is undefined in the new land law, and no such presidential order has been issued yet, the hope is that the order would cover all strategic investment undertakings under the new investment laws. 
The additional inclusions to the land law consist of land concession that entails use of private state land for a period not exceeding 49 years for strategic investment like forestry, agriculture and livestock, among others. An article in The New Times Rwanda stated that “All projects of national importance are deemed as strategic investments, such projects focus on special impact to the development of the country and its people.” The article further details the state lands lease which is “a State private domain land lease agreement between the State and an investor for strategic investment in construction of infrastructure for commercial purposes such as trade centers, hotels, real estate, restaurants, public parks, tourism sites, schools, hospitals passengers or goods transportation stations and industries.” The lease term is 99 years and can be renewed pending fulfillment of the investor’s tax obligations and diligent land conservation. 
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