Sunday, May 10, 2009

The Pan-African e-network-creating a Continental African Stock Exchange


India, in February 2009, launched a joint project with the African Union (AU), named the Pan-African e-network. The goal of the project is to link, via satellite and fibre-optic cable, medical and educational institutions in AU member states, with similar institutions in India. The purpose is to connect tele-medical and tele-educational partners, through internet and communication infrastructure, in order to provide expertise and support from India to Universities and Hospitals in Africa. In addition to the e-network development, this past week, the National Stock Exchange of India (NSE) announced that similar technology, indeed the same infrastructure, would allow them to create a Pan-African stock exchange. Such an exchange would link all exchanges in Africa as well as open them up to companies and investment from India. The NSE is preparing the blueprint for this plan with the stated hope to further India’s economic involvement with Africa.


This is not the first attempt to further the discussion concerning the need for a Pan-African exchange, but it truly is a fascinating plot twist- perhaps with a real possibility of success. It does, however, need to be seen in light of other efforts across the continent to make exchanges viable through co-operation. No-one can accurately predict the success of any of these efforts, except perhaps World Bank economists with their magical powers. What we can predict, with some certainty, is that the entrance of a fresh, new player on the pitch means an infusion of energy that changes the dynamics of the match.

There are frequent discussions about the lack of liquidity, proper legal and banking infrastructure, and regulation on some African exchanges and how that situation could be rectified through the creation of regional exchanges or ultimately the creation of a Pan-African Stock Exchange. At the 2008 African Stock Exchange Association (ASEA) meeting in Kampala, Uganda, this was mentioned and some of it was discussed in detail. Let’s consider the different levels of cooperation between exchanges in Africa in light of India’s new plans. To begin with and most recently, South Africa has developed its own response to the need for cooperation with the creation of the Africa board.

The Africa board trades equity and was established by the Johannesburg Stock Exchange (JSE) Trades are executed on and through the JSE. There is a common sense feel to the Africa board. The JSE is in a strong position, as an established exchange in a politically and economically stable country, to provide access for companies Africa-wide to list and for foreign investors to invest. The JSE also has an established dispute resolution scheme should problems arise; although it is unclear if the Africa board has access to this scheme. So why then is not every exchange on the continent jump on the Africa board train?

Well, why was there a Boston stock exchange for so many years before it was acquired by NASDAQ? Why was there a Philadelphia stock exchange for hundreds of years? Both were smaller than New York, less liquid as well. These smaller exchanges were necessary because they were local. For many years, companies who could not make the listing requirement for the NYSE found a home on these smaller exchanges. Many of these companies are local-run by folks who grew up in the area and built their businesses until they went public. Listing on the exchange was an achievement. It symbolised reaching the next economic level. Now the business could seek funding from investors and not just borrow from the bank or family. The company was now also identified by where it was listed. A relationship exists between the exchange and the company. Both of their identities are intertwined. This creates a community and that is something valuable and not always easy to quantify or relinquish easily. Beyond the local there exists the national as well.

Exchanges, particularly in countries with only 1, represent more than just vehicles for raising funds. They can be national symbols. They represent an achievement-the arrival of the nation to a more sophisticated level of economic functioning. For emerging markets it is an entrance to the global economy. The US comparisons are old, ancient in fact, examples and African exchanges tend to follow their own paths, as every exchange does. On the other hand, we do not need to hold African exchanges to drastically different standards. There may be legitimate reasons why countries do not want to cross-list or be absorbed in to one large continental exchange. Indeed, there are clear articulated reasons.

The African Union (AU) recently completed a survey of members gauging opinions concerning a Pan-African stock exchange. Only 29 member states completed the questionnaire but those who did had some opposition to the idea. The primary concern was the lack of standardised exchange rules and regulatory schemes. Other concerns raised were the fact that some AU member countries just are not interested in exchanges. Many resources would have to be allocated to a Pan-African exchange that might not represent each and every nation’s interests. One might bear in mind how effective the AU has been, in general, when contemplating the creation of another Pan-African institution.

On the other hand there has been success with other forms of cooperation between exchanges in Africa. For example the regional exchanges in West Africa. Also, there already exist examples of cross-listings between exchanges in Africa. Additionally, the East African Exchanges are planning a regional exchange (Kenya, Uganda, and Tanzania). The developments in East Africa have been slow but they are making progress. Finally, there are Memos of Understanding (MOU) among exchanges creating uniform listing requirements making it easier for companies to list across their borders. As cooperation already takes place, there is no reason not to endeavour to reach for broader cooperation.

I do think that a Pan-African exchange is an ideal. It would be the ultimate financial intermediation vehicle. There is, however, no precedent for it. That does not make it impossible and certainly technological advances have helped many emerging exchanges leapfrog the historically typical development of exchanges. There is however, just so little cooperation in other areas on the African continent. Exchanges are not built to overcome all political and social obstacles which exist in a society. We have seen this recently with the global economic crisis. Exchanges react and must be reassured. Right?

Heck no! Africa defies the odds all of the time, despite what the BBC says, every day, all day long. I am exceedingly excited about the NSE’s blueprint for the exchange, even if they are just doing it to compete with China. I also believe that life is a journey, not a destination. The e-network, and the thinking that goes in to the planning of a Pan-African exchange, alters what we think is possible, regardless if it happens right away or even at all.



Namibian Stock Exchange and the JSE is one example.


See, Mwenda, Kenneth, The dynamics of market integration: African stock exchanges in the new millennium, (Brown Walker, USA, 2000)

http://www.jse.co.za/Africa_Board/ab_about_us.jsp

Wednesday, May 6, 2009








Zimbabwe



How can legal research ever reflect what you see on the ground and hear people say in far, far away places? I wonder how I can communicate in words, adequately, things that are so cultural and embedded that you can only observe them with your eyes wide open and you can only see them if you have lived an aware life.


My research concerns stock exchanges in Africa. They have them and they are cool. They raise money, privatise companies, resolve disputes and even have trouble with fraud. While Africa is an awesome place, the raison d’ĂȘtre for my thesis is that I love exchanges-wherever they exist. This is important to state outright. Americans have a singular relationship with Africa and it is a long way away from thinking about stock exchanges.


My research does not focus on the Zim stock exchange directly but uses it as a contrast to what is happening in East Africa, which is my focus and equally cool but for other reasons. This year I went to Zimbabwe at the height of the cholera epidemic and not because I thrill seek. I just have a healthy disbelief of things journalists say. They serve a purpose in society, but it isn’t always to tell the truth.


I met my varungu friend there and he showed me a country that is gorgeous and vibrant. I met very many happy people who were out having lunch or taking care of kids, selling their tomatoes or having a beer. It just was not the tragic place described by the press. There is a sense of impending doom but I could never tell if this was reality or my overactive Southern California imagination.


We travelled in a Land Rover, far and wide, from Harare to Chimanimani and back. I almost died due to a gully or two. There is a strong sense of history-of happier (wealthier) times as well as of strife and oppression. What struck me the most is how deeply, deeply, he loved this place. He stayed in Zim for a reason and not because he could not join the Diaspora and this was significant. I wanted my posh American and English friends to visit and travel with him and appreciate the mountains and trees and understand what happened here. Not so that they would donate to the nearest charity, or adopt a baby, but because it would make them see and hear and feel. That is, of course, a luxury, but one that exists in my part of the world.


There is a great deal of talk at academic conferences about not romanticising the local. I have not tried to sell Shona art where I live-yet. I do want, however, my research to reflect the local.

Otherwise, what use is it?


Legally, Zimbabwe is peculiar and fascinating. It chooses to disregard SADC Tribunal rulings on land ownership and is soon embarking on the creation of a new constitution while the Unity government struggles.

I do not pretend to understand Zim, but I see it.


See http://www.mg.co.za/article/2009-04-13-zim-sets-up-committee-to-draft-new-constitution and http://www.zimtelegraph.com/news_article.php?cat=17&id=547.


Tuesday, May 5, 2009

Forensic Financial Education: What do Madoff and Nyaga have in common?

For years, African Stock Exchange officials and Capital Markets regulators have been courted by U.K. and U.S. securities officials. They are invited to and attend annual conferences in London and D.C. to learn how developed markets are managed and regulated-all that is about to change. Since the global financial crisis-and given the rampant fraud discovered in New York, London and Europe- how can developed markets now lecture emerging markets on how to effectively manage and regulate an exchange? Will Aid ever more be tied to the adoption of transplanted laws that clearly do not function in a way that protects investors-at least from fraud-no matter what continent they operate on? Too often the world focuses on what is wrong with Africa. Fraud happens on exchanges worldwide. All regulators need to minimise or eliminate fraud in order to allow a stock exchange to function as an effective mechanism for growth. Moreover, African commercial law clearly does not need to replicate the West-both are flawed. As the global financial community considers the efficacy of global securities regulation, the African exchanges must be included in that dialogue. It may be that progress lies in recognizing the challenges all exchange face and learning, together, how to regulate accordingly.


The current global financial crisis is primarily a banking crisis. The result of risky credit behaviour- we all have witnessed the global and pervasive consequences of this crisis. Securities exchanges are a part of the crisis, but not as a main player. Rather, what has been front and centre are the fraudulent investment schemes by brokers in North America and England. Similar in substance, but unrelated, are the alleged frauds by brokers in Kenya. 1 In New York, extensive Ponzi schemes were revealed once the credit markets dried up; particularly the investment fraud by Bernie Madoff Investment Securities LLC. 2 The Madoff fraud is remarkable for the massive number of victims globally as well as for that fact that Madoff was a serious Wall Street insider. A similar case was revealed last year at Nyaga Stockbrokers; one of largest stockbrokers in Kenya, resulting in the firms demise. Distinguished by location and time, these frauds are similar in terms of players and form.


Nyaga Stockbrokers was put under receivership by the Capital Markets Authority of Kenya (CMA) in March of 2008 after a discovered fraud. Statutory managers were appointed to assist with the resolution of business at the firm. The CMA conducted a forensic audit and plans to make public the report after further consultation with the Government. 3 Additionally, there was evidence of Nairobi Stock Exchange board members who also served in management positions at Nyaga. 4 The alleged fraud involved the creation of ghost client accounts with the Central Depository System, allowing brokers to hide the movement of funds as well as brokers trading in clients accounts without their permission. 5 It is possible that Kenyan CMA action, closing the brokerage firm, was in the interest of market stability as the broker held large numbers of accounts and shares. 6 There was however, criticism that the regulator did not respond to complaints about Nyaga as early as 2007. In addition, this activity occurred during the post-election troubles as well as the Safaricom IPO which may have has an influence on the decision to act quickly and decisively. The political and economic events surrounding the fraud at Nyaga are diverse but there are similarities with the Madoff type of fraud, the involvement of market insiders and client account manipulation.


Bernie Madoff used his long-term relationship with the financial community in New York to gain the confidence of investors. They invested with him and he never invested a dime of theirs. This went on for years. He printed reports of trades and statements of profits that never existed. There were no safeguards that would indicate to the US securities regulators that something was amiss. There were no audits conducted that could have revealed the bogus reports or unlawful trading in accounts. This was because Madoff held his accounts under his firm not as a broker-dealer, heavily regulated and subject to multiple audits, but as an investment advisory firm. Investment advisory firms or hedge funds are less regulated in the states. This regulatory black hole with respect to hedge funds has been the subject of much of the US Congressional review of regulators actions before the financial crisis. 7 In addition to the Madoff firm, officials are also prosecuting firms and individuals who fed their clients money to Madoff for civil fraud. 8 This is the unique aspect about the Madoff scheme-there was a tight knit community of investors invited to invest as well as large groups unaware that they were invested with Madoff. 9 This sophisticated network did not exist in Nairobi.


Both regulators in our tale of fraud failed. Investor confidence is necessary for markets to grow and this confidence is undermined by fraud; eroding the ability of exchanges to provide opportunities for economic growth not dependent on aid. Capital markets regulation involves rules, regulation and guidance for financial services professionals who sell stock to investors. The main purpose of regulation is to ensure that markets are run fairly and without fraud. Exchanges are a symbol that the country is open for business and attractive for investors. Many African nations that have exchanges have benefited economically from their exchanges without dependency on aid. 10 Stock exchanges open economic doors that aid and donors cannot. The IMF predicts that the poorest countries will need $25 billion (USD) in aid this year. 11 If there were funds available for aid, much of it now will be spent on domestic economic support. It may be possible that economies with available money to invest will need to consider more seriously alternatives to the formerly more reliable developed markets. That is always the hope- that markets in Africa will look attractive for more direct investment. 12 Before that happens however, investors must feel confident which is always a problem in economies subject to unexpected political changes and surrounded by economic uncertainty which many Sub-Saharan economies are. Investor confidence needs to be restored before markets look reliable enough to invest in from outside. This is true on any continent.


The recent economic crisis has made it clear that our financial fates are closely linked. Fraud, similarly transacted, was discovered in one of the oldest and heavily regulated markets in the developed world and in a much younger, emerging market of the developing world. Can this be reduced to a simple failure to regulate? Perhaps, but what these events really demonstrate, is that fraud is endemic to stock markets universally. It also demonstrates that the developed regulatory agencies of the US, or the UK for that matter, have more in common with emerging exchanges than they might care to admit. As things move forward in Kenya and the US in terms of regulation and our understanding of how markets work and how we would like them to work, the developed world must acquire a new attitude. Ideally, this attitude will reflect respect for the difficulties all financial markets face and the realisation that in our integrated global reality all voices deserve to be heard not because they have earned some right, but because this is the only true way to move forward together.

1 We have not been able to acquire first hand confirmation of the specific transactions that led to the demise of the brokerage firms. We have also not been able to get a copy of the PriceWaterhouseCoopers (PWC) forensic auditors report on Nyaga brokers.

2 http://www.sec.gov/news/press/2008/2008-293.htm

5 http://www.bdafrica.com/index.php?option=com_content&task=view&id=5819&Itemid=5812. Brokerage firms have accounts at the Central Depositories. Central Depositories clear stocks which is how they reconcile shares against funds held within accounts.

7 Testimony of Mary Shapiro, head of the SEC before the Senate Committee on Banking, Housing and Urban Affairs. http://www.sec.gov/news/testimony/2009/ts032609mls.htm

8 The State of New York, filed a complaint against J. Ezra Merkin and Gabriel Capital Corporation for funnelling $2 billion of clients assets to Madoffs firm. Merkin allegedly collected over $45million in fees for directing charitable organisations, universities and individual investors to Madoff.The complaint does not allege that Merkin knew Madoff was running a Ponzi scheme

10 See the Botswana Stock Exchange. http://www.bse.co.bw/

11 WSJonline, 3 March 2009, last accessed 3/5/09