Independent State of Mind – Myth or Reality?

Directors owe their fiduciary duties to the Company as a whole and are expected to act in the best interest of the Company and not in the narrow interest of the stakeholders (typically shareholders) they represent. An independent mindset will enable the Director take a stand, when he/she is of the view that the company’s long term future is not being prioritized, no matter the consequences. However, many Directors are unable to take a step back when faced with decisions that are not in the best interest of the stakeholder block they represent, but which would benefit the company – often in the long run. This brings to the fore the struggle to align the interests of the Company (all stakeholders) and the interests of those charged with running the Company (Board and Management). The concept of Independent Directors is an attempt to ensure that there is sufficient “independent judgement” on the Board that enables the Board act in the best interest of the Company at all times.

It has been argued that the Independent Non-Executive Director (INED) is no different from any other Non-Executive Director (NED). However, the process of appointing Directors (INED or NED) unto the Board is critical in determining and assuring the individual’s independent state of mind and judgement. A well-defined and transparent appointment process, that clearly sets out the criteria for the role as well as the required skills set; outlines a procedure championed by the Nominations (Governance) Committee which is clear to all Directors, is one way of achieving true independence. The converse is where the Chairman or CEO unilaterally circulates CVs of individuals known to them to the Board “for consideration”. Sometimes these individuals go through the motion of “appearing” before the Nominations Committee before being “recommended” to the Board and the shareholders for appointment. More often than not, such Directors find it difficult to take a stand that will “hurt” their “benefactor”, even where such a position is in the best interest of the Company.

Ownership is also a significant factor in a Director’s ability to think and act independently. Separating the role of ownership and governance engenders Board independence which is a sine qua non to delivering value to a wider spectrum of stakeholders and acting in the company’s overall interest. Decisions would not always be influenced by investment objectives of the individual and institutional shareholders, but will be better focused on considerations beyond the bottom-line.

Another key determinant of the independence of the Non-Executive Director is the character of the individual. Integrity connotes sound ethical values, transparency, accountability, commitment and courage. If the selection process throws up an individual with integrity and sufficient moral fibre, he or she will bring on board the appropriate independent judgment required for Board effectiveness and sound decision making. It would be of little or no consequence to such a Director that he or she represents a shareholder, as such a Director will have the sufficient presence of mind required to make optimal decisions.

Conversational intelligence, candour, leadership skills, confidence are some of the desirable character traits in a Non-Executive Director.

The culture on the Board to a large extent also determines the level to which Directors are able to maintain independent judgment.  Openness to new ideas – as opposed to an attitude of “this is how we do it”, the ability of Directors to accept constructive criticism and feedback are attributes of the Board that will engender greater independence of thought. Also, if one or more Directors exercise overbearing influence whether by reason of shareholding or a propensity to dominate discussions, the tendency will be to always defer to such individuals. The Chairman (if he/she is not the culprit) will need to firmly deal with this by ensuring that no Director dominates discussions and drawing out the less vocal Directors.

The process of determining (and sometimes the quantum of) Non-Executive Director remuneration also has an impact on Director independence. Leaving the determination of Director remuneration to the CEO’s discretion is not best practice. This responsibility should be that of the Governance (Remuneration/Nomination) Committee which will make recommendations to the Board on the components, quantum and frequency of review. The Committee will periodically undertake a peer review to ensure that remuneration package compares favourably with industry peers. Excessive and arbitrary pecuniary benefits to Non-Executive Directors has the potential of beclouding their judgement.

Finally, Directors who are busy with other endeavours and who do not solely depend on their Board membership for relevance or economic gain are more likely to bring a greater degree of independent judgement to the Board.

 

“The Super Code” – A Postmortem?

The Financial Reporting Council (‘FRC’) in purported exercise of its powers under Section 50 of the Financial Reporting Council of Nigeria Act, 2011, had on the 17th of October 2016 issued the now suspended National Code of Corporate Governance which took effect on the same date. The much touted ‘Super Code’ which aimed to address the sectoral divergences and peculiarities, is in the form of a 3-in-one Code with variations to suit the peculiarities of the Public Sector, Private Sector and Not-For-Profit Organizations (NPFOs). The segmentation of the Codes on sectoral basis was an attempt to answer the question of the workability of a code for all sectors.

Following criticism from a cross section of stakeholders, the Federal Government suspended the implementation of the Code on the 7th of November, 2016 “pending a detailed review, extensive consultation with stakeholders and reconstitution of the Board”.  Contending that the Code was overreaching and inconsistent with the provisions of existing legislation – notably the Companies and Allied Matters Act (CAMA), the Minster of Trade and Investment also called to question the authority of the FRC to issue the Code in the absence of a substantive Board. Following the appointment of a new Executive Secretary and a Board Chairman, it remains to be seen whether the Code has died a natural death.

However, before we throw away the baby with the bath water, a review of some of the controversial provisions of the private sector Code is presented hereunder.

The Private Sector Code has as its focal thrust the harmonization and unification of all the existing sectoral corporate governance codes applicable in Nigeria (CBN, SEC, NAICOM, PENCOM & the NCC Codes) and was to have been applicable to:

  • All public companies (whether listed or not);
  • All private companies that are holding companies or subsidiaries of public companies; and
  • Regulated private companies as defined in Section 40.1.14 of the Code (“regulated private companies” means those private companies that file returns to any regulatory authority other than the Federal Inland Revenue Service and the Corporate Affairs Commission, except such companies with not more than eight (8) employees”).
  • Board Structure & Composition: “No person, having retired from the Board or Executive management of a company, shall continue to exercise any surreptitious influence or dominance over any of these two governance structures. Such continued dominance or influence may vitiate the validity of the disengagement cool-off period as provided for by this Code” . It has been alleged that this provision was targeted at specific individuals and as with a few other provisions of the Code, is reactionary. It is also not clear how this provision would be enforced as “surreptitious influence or dominance” may be difficult to prove.
  • Board Size: The Code prescribes a minimum Board membership of eight (8) for all Private Sector companies. However, Section 5.7 of the Code makes an exception for regulated private companies that are not holding companies or subsidiaries of public companies, to the effect that such companies shall have a board membership of not less than five (5) out of which three (3) shall be Non-Executive Directors (of which a majority shall be Independent Non-Executive Directors). This provision runs counter to Section 246 of CAMA which provides that “Every company registered on or after the commencement of this Act shall have at least two directors”.
  • Chairman: In apparent reaction to the return of some MD/CEOs to the Boards of their respective companies as Chairmen, the Code provides that “the MD/CEO shall not go on to be the Chairman of the same company. If in very exceptional circumstances the board decides that a former MD/CEO shall become Chairman, the cool off period shall be 7 years and the Board shall consult both majority and minority shareholders in advance and also inform the regulator of the appointment, setting out its reasons for such appointment. This shall also be stated in the next annual report”.
  • Independent Directors: Not less than half of the Non-Executive Directors shall be Independent Directors. The reclassification of an existing Non-Executive Director into an Independent Non-Executive Director on the same Board is not allowed. This provision was to have substantially changed the composition of many Boards, requiring the appointment of more Independent Directors.
  • Lead Independent Director (“LID”): The Code introduced the position of a Lead Independent Director (known in some jurisdictions as a Senior Independent Director) who is expected to ‘provide a sounding board for the Chairman’ and to serve as an intermediary for the other directors when necessary. It is submitted that this provision would provide some balance on the Board in the case of a “Super Chairman”.
  • Executive Directors: The MD/CEO should not be the only Executive Director on the Board of Company. This provision does not take into cognizance the size and nature of the company’s operations and assumes a “one-size-fits-all” posture.
  • Tenure:
    • Managing Director /Chief Executive Officer: 5 years x 2 terms
    • Non-Executive and Executive Directors: 4 years x 3 terms
    • Independent Directors: Maximum of nine years.
  • Board Meetings: Where a majority of Independent Non-Executive Directors dissent on an issue before the Board, such decision can only be valid where at least 75% of the full Board (without reference to quorum) vote in favor of such decision. One of the most controversial provisions of the suspended Code which is in disregard of the provisions of CAMA to the effect that each Director shall have one vote. It may also create undue tension on the Board and the emphasis on the role of the Independent Directors takes away from the expectation that all Directors are to approach their responsibilities with a degree of independence.
  • External Auditors:
    • Joint Auditors: Section 19.3 of the Code provides that listed and Significant Public Interest Entities shall engage Joint External Auditors to undertake statutory audit. These entities are those whose market capitalization is not less than =N=1 billion and/or whose annual turnover is not less than =N=10 billion. In addition, Section 19.2.2 provides that for every first statutory Auditor that is an international firm (i.e. one with at least one non-Nigerian partner), the subsequent statutory auditor shall be a National firm (i.e. one that has no foreigner as a partner).
  • Internal Audit: A Public Interest Entity shall not outsource its internal audit functions.

There is no gainsaying that the implications of the suspended Code are far reaching. However, it is also apparent that a convergence of the numerous industry specific Codes of Corporate Governance will engender best practice across sectors. Thus it is suggested that the “Super Code” should be reviewed as promised with a view to harmonizing all the Codes in close consultation with relevant stakeholders.

 

BEFORE APPOINTING A NON-EXECUTIVE DIRECTOR

Non-Executive Directors (NEDs) play an important and indispensable role in corporate governance and commercial sustenance. Although NEDs share the same general responsibilities and duties as other Directors, they occupy a central position in Board governance and play an integral role in ensuring the effectiveness of Executive Directors and the smooth functioning of any business enterprise. Perhaps the most critical of the roles of the NEDs is defining the company’s values and standards and ensuring that its obligations to its stakeholders are accomplished. NEDs are also expected to bring significant objectivity and independence to the Boardroom.

These important and incontrovertible roles and duties of the NED require specific skills, qualities and qualification from individuals appointed to occupy such positions and elevates the need to ensure that only individuals who possess the right qualities and characteristics are so appointed. There is a consensus that several of the recent high profile corporate failures could have been averted if the NEDs on the Boards of the affected companies exercised the level of independence and objectivity naturally expected of them. Thus, it is essential that in appointing a prospective NED, care must be taken to ensure that the individual possesses not only the relevant skills set, but is of such disposition and has attained such level of preparedness that would enable an objective and effective discharge of the duties of the NED.

A Non-Executive Director should have sufficient knowledge of the Company’s industry and the ability to make meaningful impact on the Company’s business, such that could easily give confidence to both Management and investors. Furthermore, a sufficiently strong character that would enable the NED constructively question Management proposals is also critical. A prospective NED should be able to bring positive attitude to the Board by participating actively in the decision-making process and scrutinizing the actions of Management without emotional hindrance.

Independence within the context of a NED is the ability to exude objective thinking devoid of extraneous influence. It is expected that a candidate for an NED position must possess a level of independence from Management and other interests related to the company to ensure that he/she is well positioned to provide an unbiased, impartial and objective view on matters before the Board. Thus, it is important to ascertain that the director is independent in character and judgement and that there are no relationships or circumstances which are likely to affect, or could affect the director’s judgement.

It is also important before finalizing the appointment of a NED, to confirm the ability of the prospective NED to remain on the Board for a reasonable period. There is no gain saying that organizational goals and objectives can hardly be achieved where there is a high level of Director attrition. A notable lacuna in most corporate governance codes is the requirement for NEDs to commit to spending a minimum period of time on the Board.

Perhaps the most important consideration before appointing a NED is the ability of the prospective candidate to devout sufficient time to the affairs of the company. To fulfil their roles, NEDs would be required to meet from time to time and to serve on Board Committees. This comes with a demand on the NED’s time and specifically his ability to show the required level of commitment to the Company’s affairs. Thus, it is important before appointing a NED, to ascertain that the candidate can allocate appropriate time to meet the demands of the role as may be required. Beyond this, Directors should be made to disclose their other significant commitments to the Board with a broad indication of the time involved in such other responsibilities. Ensuring that a Director has enough time to carry out the responsibilities of the role should be ongoing. Thus, a NED should typically get the Board’s buy-in before accepting additional commitment that might impact on his/her time availability.

Given the significant role of the Non-Executive Director in the achievement of corporate goals, it is imperative to get it right from the beginning by ensuring that prospective candidates possess the requisite qualities to perform the role and are able to devote adequate time to providing the requisite oversight.

Reputational Risk

“A good reputation is more valuable than costly perfume” Ecclesiastes 7:1 (The Holy Bible)

A few years ago, when CEOs had to answer the question “What are the major risks facing your organization?” many of them were quick to list political (environmental), operational, regulatory and human capital as the top four. Rarely did they consider the exposure of the organization to a risk that could be devastating in its impact – loss of reputation. This trend is changing as recent research on risk management by the Economist Intelligence Unit (EIU) indicate that CEOs consider reputational risk as the highest ranking (52%) above regulatory (41%) and human capital (41%).

“A company’s reputation is perhaps its most valuable asset. Reputational risk is the possible loss of the organization’s reputational capital”- Financial Times. It is any risk to an organization’s reputation that is likely to destroy shareholder value and can be defined as the risk arising from negative perception on the part of customers, shareholders, investors or regulators.

Changes in business practices arising from increased focus on good corporate governance practices, statutory and regulatory requirements have made companies more vulnerable to reputational damage. Increasingly, the power of the press and social media has intensified the focus on corporate reputation. Compliance breaches (and indeed the allegation thereof) leading to fines and sanctions affect the public perception of an entity. According to Warren Buffet” It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently”.

Reputational risk when it crystalizes leads to negative publicity, loss of revenue, litigation, loss of clients (or customers), exit of key employees, share price decline (depending on the sophistication of the stock market) and difficulty in hiring talent. It also hinders access to capital and if the organization is lucky to find funding, this comes at a premium. The loss of reputation does not only affect the corporate entity, it rubs off on individual directors, employees and indeed business partners. Some individuals have had their names sullied in high profile corporate scandals. In some cases, these individuals did not even play active roles in events that heralded the collapse of the institutions.

Exposure to reputational risk is essentially a function of the adequacy of the organization’s internal risk management processes, as well as the manner and efficiency with which governance structures respond to internal and external influences. An organization through its internal risk management processes should identify potential sources of reputational risk to which it is exposed. It is ultimately the responsibility of the Board of Directors to ensure that the appropriate framework to manage reputational and other risk is in place.

Again, the recent EIU survey found that 62% of companies interviewed stated that reputational risk was the most difficult risk to manage. Among the major challenges identified are categorization and quantification of reputational risk. In anticipating the occurrence of a reputation-damaging event, it is difficult to foresee the likely impact and the dimensions thereof. Oftentimes, a damage to reputation leads to the crystallization of other risks – credit, liquidity, market and legal.

The key elements in the management of reputational risk include; sincere and consistent enforcement of governance controls; enthroning and encouraging ethical conduct across the organization; ensuring statutory and regulatory compliance; continuous monitoring of threats to reputation; prompt and effective communication with all stakeholders; having in place a crisis management plan and a crisis management team.

Re-establishing reputation takes a long time. Oftentimes, the damage is permanent and irreversible. Companies need to pay more attention to and place sufficient value on corporate reputation as in the words of Ronald J. Alsop in his book ‘The 18 Immutable Laws of Corporate Reputation’ “a good reputation can enhance business in good times, become a protective halo in turbulent times, and be destroyed in an instant by people at the lowest or highest levels of the corporate ladder”.

Conflict Resolution on the Board

Conflict may be regarded as any form of friction, disagreement, or discord arising within a group when the views or actions of one or more members of the group are either resisted by or unacceptable to one or more members of the group. Where individuals with strong convictions associate, conflict may arise from a divergence in views, opinions, perceptions and personal interest. The Business Dictionary defines conflict resolution “as intervention aimed at alleviating or eliminating discord through conciliation”.

Directors would typically bring to the Board varied experience and divergent views. It is therefore important for the Board to engage and manage these different views to ensure that they do not or potentially impact negatively on Board deliberations and decisions. An objective, transparent and open decision making process borne with an inbuilt conflict resolution mechanism would improve the effectiveness of the Board and enable it provide the appropriate oversight to the ultimate benefit of the organization. On the converse, where conflict is poorly managed, it can result in severe damage to the fabric of the Board and in the long run the organization itself.

Many Directors are of the view that the absence of conflict or the avoidance of conflict at all cost is a good indication that the Board is a “good” or cohesive one. They therefore do not consider the imperative of a conflict resolution mechanism. The negative impact that the existence of unresolved conflict could have on a Board however warrants that the Board should pay sufficient attention to putting in place a conflict resolution mechanism.

Using a systemic approach to resolve routine and occasional disagreements that arise on the Board will ensure that disputes are resolved more effectively and will also enhance the Board’s collaborative problem-solving and decision making capabilities. Most of the time, Directors are able to find amicable resolution to seemingly knotty issues by having frank and open conversations. However, they can be far more effective if they establish a broad range of internal and external resources to assist them in uncovering and resolving conflict.

Global best practice in conflict resolution and corporate governance recommend that Directors and Boards should take the lead in addressing their own problems and disagreements as it pertains to or arising from their oversight responsibilities, using the most constructive approaches possible. The Chairman and indeed all the Directors require the appropriate skills and a clear understanding as to when and how to use these skills. These include individual initiative, negotiation, informal mediation and decision making skills. A high level of emotional intelligence is also very critical in dealing with conflict at the Board level.

A systematic approach to addressing the issue of conflict on the Board will be incomplete without a Conflict Resolution Policy in place. A Conflict Resolution Policy defines in clear terms and prescribes a mechanism for dealing with conflict on the Board. The Policy should be considered and approved by the entire Board as this helps to ensure that the Policy gets the buy-in of all the Directors and that the Directors are well apprised of the contents of the Policy.

A more recent concept on dealing with conflict is that of the “Board Ombudsman” who is usually external to the Board and the organization as a whole. The role of an Ombudsman is that of a highly competent, independent and confidential person who can help Directors and the Board solve problems through effective, diplomatic but informal methods. Usually, the power of the Board Ombudsman stems from the individual’s credibility as an independent and neutral resource as well as an objective peer. While the role of the Board Ombudsman does not currently exist in Nigeria, there are individuals who have taken on the role of “external advisers” or confidential resource persons informally such that they help Boards resolve and manage conflict, particularly with respect to highly sensitive or potentially explosive matters. It is suggested that Boards should incorporate the role of a Board Ombudsman in the Conflict Resolution Policy.

Due to the nature and dynamics of Boards all over the world, Boardroom conflict is inevitable. As conflict can be constructive if properly managed and help create or strengthen Board cohesiveness, Boards are encouraged to take deliberate and conscious steps to manage and resolve conflict effectively. At the helm of the entire process is the Board Chairman who should ideally be a visionary leader and take the lead role in the conflict management process. In the absence of an “Ombudsman” formal or informal, the Board Chairman is critical and pivotal to the entire process of managing or resolving conflict on the Board. In the words of Charan, Carey and Useem in their book “Boards that Lead” “the board leader’s job is to head off those terrible moments if possible, or at least not let them paralyze the organization once they emerge. After all, board leader was chosen by their fellow directors precisely because they have demonstrated the perceptiveness and persuasiveness required for aligning others at the top when it really matters”.

 

THE ROLE OF THE LOCAL BOARD IN MULTINATIONAL FIRMS

In an effort to maintain standards that form the basis of their competitive advantage, multinational firms have a set of standard operating procedures that apply across the global organization. Indeed, business success often depends on globally integrated operations – including marketing, production, research and development as well as human resources management. A major challenge in global operations, which have much more complexity and uncertainty than domestic ones, is to strike the balance between empowerment and control, to enable adaptation and responsiveness to overseas markets with minimal risk.

Global companies face decisions as to what extent processes should be standardized or made flexible, and how to guard against the risk of too much flexibility in the process of internationalizing best practice. Multinationals are forced to maintain a constant balance between being “global” and “local” and having to deal with a myriad of pressures in this regard. Pressure is exerted on these firms to adopt local practices that cause them to conform within the institutional context of the host country. At the same time, in order to maintain their competitive advantages, they are forced to adopt the same organizational practices as all the other subsidiaries around the world.

There is always an ongoing attempt to maintain sufficient control over the global organization while empowering the local Board of Directors.

In Nigeria as in many countries, foreign subsidiaries are required to have Boards of Directors. Given the importance of foreign subsidiaries in the operation of multinationals and the complexities of managing geographically dispersed and culturally distant foreign subsidiaries, one would expect multinational firms to use subsidiary Boards strategically to govern foreign subsidiaries. However, in practice some subsidiary Boards are only set up to fulfill local legal requirements.

Typically, multinational firms have a unified corporate strategy defined by the overall governing body, operating out of the global headquarters. Each local subsidiary is then expected to adopt and implement the strategy as defined. As firms find themselves expanding beyond regional boundaries, the realities of local variables that could impact on global strategies are becoming more apparent. These include host country risk (political, social and environmental risks) cultural differences and competition intensity.

Given that multinationals increasingly compete against one another in multiple markets where the strategic actions taken by a multinational in one market can have repercussions in other markets, it follows that they may well be inclined to exercise a high level of control over foreign operations. Significant control enhances a multinational’s ability to ensure that strategic actions taken by a subsidiary in one market do not produce negative results in other markets above and beyond the expected gains to be made by a focal subsidiary’s strategic move.

What then is the role of the local Board in defining and articulating strategy as required by the various Codes of Corporate Governance and regulators? Are local Boards of multinational firms sufficiently empowered to tweak the firm’s global strategy in sync with local realities? It is suggested that an appropriate balance can be achieved that would give sufficient autonomy to the local Board to adapt to local realities, whilst keeping sight of the global strategy. The local Board should be sufficiently involved in the strategy setting process – usually through the CEO (and other Executive Directors) and the Board Chairman.

Another area that poses a dilemma for and tends to erode the authority of the local Board of Directors is with respect to reporting and performance measurement. Executives of multinational organizations would typically have functional reporting lines that require them to report to the headquarters. Furthermore, Key Performance Indicators are usually set by the headquarters. Consequently, performance appraisal is the responsibility of the functional heads, rather than that of the local Board. The effectiveness of the local Board can be further diminished where the subsidiary CEO holds a management position in the global headquarters. It is suggested that to enable it fulfil its oversight function of monitoring and measuring the performance of Executive Management, the local Board through the appropriate Board Committee should be involved in the process of evaluating the performance of Executives against the defined KPIs.

Given the far reaching responsibilities imposed by company law on Directors, it is imperative that the Board of a local subsidiary be sufficiently active to deal with the peculiarities of the local operating environment. There has to be a tradeoff as well as a costs/ benefits analysis of exercising control and granting substantial autonomy to the local Board.

Finally it is suggested that regulators need to pay closer attention to the complexity of multinational organizations and develop regulations that emphasize the importance of subsidiary Boards in the oversight of foreign subsidiaries as well as understand the objective of multinational firms to maintain global standards across local subsidiaries.

Confidentiality and the Board of Directors

confidentiality-and-the-board-of-directors

The courts have held that “a director’s right to information is usually unfettered in nature” (Kalisman V. Friedman, 2013 Delaware Chancery Court). Given the extent of their statutory duties, Directors are entitled to demand for and receive all such information as required to enable them take decisions that are in the best interest of the company. Remarkably, the use or misuse of information to which a director becomes privy by virtue of her membership of a board of directors is a subject to which many Boards do not pay significant attention until a breach of confidentiality or a threat thereof occurs.

The obligation of confidentiality fundamentally derives from the fiduciary duties of loyalty and care, hinged on the fact that in fulfilling their responsibilities, directors are entrusted with significant amount of material, non-public information. Confidential board information may be proprietary information of a competitive and commercial value to a company or sensitive information regarding board proceedings and deliberations. It is typical for the Board to take for granted that Directors would always treat board deliberations and other sensitive information with appropriate confidentiality. However, this is not always the case.

The concept of confidentiality may have different dynamics on the Board of a small privately owned company as it would on the Board of a publicly listed or quoted company. Whilst a Director’s fiduciary duties of loyalty and care are constant, the degree of transparency and disclosure set by regulatory reporting standards is higher in the case of publicly quoted entities and Directors sitting on the Boards of such entities are exposed to significantly more sensitive information than their peers in privately held companies. However, the basic principles of transparency, disclosure, trust and confidentiality apply to a Board, be it of a private or a publicly quoted company.

There are generally no guidelines on directors’ obligations with respect to confidentiality and the law in this regard is not yet well articulated. There is also a dearth of case law to guide directors or boards on the subject. Consequently, when sensitive board information is deliberately or inadvertently leaked by a director, the board may struggle to respond as the remedies available to the board and the company itself are limited. A typical remedy would be to ask the erring Director to resign or to remove him. In the absence of a Confidentiality Policy by which Directors are bound, enforcing a sanction in the face of a breach could be resisted.

It is recommended that the Board should take a deliberate and conscious approach to ensuring confidentiality on the Board by adopting a comprehensive Director Confidentiality Policy. To be effective, Directors should be required on their appointment to sign off on the policy and be availed a copy of the policy document.

A confidentiality policy should at the barest minimum specify what the Board considers to be “confidential information” and provide a list of examples of what type of information would be classified as confidential so that directors are clear in their minds in this regard. The policy should also contain an unambiguous statement that prohibits directors from disclosing confidential information to non-board members as well as other types of misuse and should provide a very narrow set of circumstances under which Directors are authorized to discuss confidential information, for example, when required by law or when authorized by the Board. It is recommend that the Policy should mandate the Board when required, to designate a Director to disseminate Board information to third parties. It should also specify the penalty for breach.

A Confidentiality Policy by no means ensures that there will be no breaches of the duty of confidentiality on a Board but underscores the importance of maintaining the confidentiality of board information and ensures that all directors are well aware of their duty to protect such information. It also makes it easier for the Board to deal with a breach when it occurs – provided of course it is able to identify the erring Director. The consequences of breach may sometimes be far reaching as to threaten the very existence of the enterprise.

To enable them take qualitative and informed decisions, it is imperative that the boardroom gives Directors the assurance of an atmosphere of candor and free expression. Thus, the fabric of trust that such an atmosphere engenders, may be damaged irrevocably when sensitive deliberations are disclosed, albeit inadvertently and this would inevitably undermine the effectiveness of the Board.

Ultimately, there is no substitute for genuine trust, collegiality and respect among board members and as such a culture of confidence is the surest safeguard against breach of confidentiality. To facilitate the enthronement of such a culture, Directors should treat all Board deliberations and all information that come within their knowledge by virtue of their being Directors, as confidential. The Chairman should provide direction in setting the tone of a culture of trust and respect on the Board and proactively build trust and cohesiveness on an ongoing basis.

DIVERSITY ON THE BOARD

Increasingly, regulators, shareholders, and other stakeholders expect the Board of Directors to reflect the diversity of its broader stakeholder group and even society in general. A growing number of jurisdictions are encouraging – and some, particularly in Europe are mandating – quotas regarding the percentage of women required on the boards. In Norway, diversity in the boardroom is not only encouraged but required. In 2003, government required that at least 40% of the Directors of listed companies should be women. Companies were given five years to comply. The figure is now 42% and a group of Norwegian women, nicknamed “the golden skirts”, have become multiple board directors.

Apple was compelled by shareholders to amend its Nomination Committee Charter by including the following “The Nomination Committee is committed to actively seeking out highly qualified women and individuals from minority groups to include in the pool from which board nominees are chosen.” The move followed objections from shareholders who said they were disappointed that the iPhone maker had only one woman on its eight-member Board.

In Nigeria, Banks signed on to the Sustainable Banking Principles under which they have committed to appoint at least 30% female Directors and 40% Management staff as from 2014. It is gratifying to note that many Banks have appointed more female Directors over the last two years and that two of them have appointed women as Board Chair. But there is still a long way to go.

According to U.S. Secretary of Commerce Penny Pritzker, increasing the number of women in corporate leadership positions is necessary to boost economic competitiveness, noting that 73% of buying decisions in the United States are made by women, and women control $12 trillion of $18.4 trillion in consumer spending globally. This may explain why S&P 500 companies selling household or personal products consistently have the most female board members, averaging 33% female members between 2008 and 2014.

In an article published by the Harvard Business Review in June 2011 “Defend Your Research: What Makes a Team Smarter? More Women”, the authors postulate that there is little correlation between a group’s collective intelligence and the IQs of its individual members. But if a group includes more women, its collective intelligence rises. Studies have shown that companies with boards of directors that have three or more women have better financial performance, higher returns on equity and greater returns to shareholders.

Greater diversity can help contribute to better decision making by the Board because it reduces the risk of “group think” or “expert” overconfidence that may be found among more homogenous Boards. Such Boards may also be able to generate new ideas faster, or bring ideas together in new and better ways, According to recent studies by Credit Suisse and Catalyst, adding more gender, generational and cultural diversity to a Board improves financial performance and good corporate governance.

However, while regulators and stakeholder groups are focusing on increasing the percentage of women on Boards, diversity entails many more perspectives including ethnicity, age, experience, education, and professional expertise. Section 13.2 of the SEC Code of Corporate Governance enjoins Public companies to develop a written, clearly defined, formal and transparent procedure for appointing Directors. The written criteria for selection should reflect the existing strengths and weaknesses on the Board, required skills and experience, its age range and gender composition.

In the light of the economic, regulatory, technological, and other changes occurring across industries and markets, Boards are facing additional challenges. Boards whose Directors had the appropriate range of expertise and experience only a few years ago may no longer be optimally aligned to address the depth and range of issues facing their organizations today. Consequently, many Boards need to refresh their membership much more frequently than in the past. Furthermore, with the expanding role that technology has in business, including the Internet, social media and cloud computing, Boards would gain from the addition of tech-savvy directors. Boards may have to step out of the box of traditional director traits and seek candidates who are younger and have less conventional backgrounds. Increasing globalization has also made it imperative for multinational companies to have internationally diverse Boards.

It is recommended that the Board should have a written Diversity Policy with clearly defined and measureable objectives. The Board Nomination or Governance Committee should be charged with the implementation of the Policy, which should be reviewed periodically in the light of changing circumstances. The Policy and its implementation should be disclosed in the company’s Annual Report and on its website. In making Board appointments, the Board is enjoined to consider diversity in its widest sense and ensure that appointments are made on merit and having regard to an appropriate balance of skills, experience, independence and knowledge required on the Board.

It is imperative for the Board to ensure that relevant skills, experience and personal integrity are not sacrificed on the altar of gender quota.

First Among Equals – The Role of the Board Chairman

The Chairman of the Board is Primus Inter Pares (the first among equals or first among peers) on the Board of Directors of every company and typically elected by members of the Board of Directors who also determine the period for which she is to hold office. In some jurisdictions, the Chairman of the Board is elected annually by members of the Board at the first Board meeting, after each Annual General Meeting or between Annual General Meetings upon the resignation, death, disqualification or removal of an incumbent Chairman. The Chairman should be a non-executive director and it is desirable that she should satisfy any independence standards set by the Board, applicable law or relevant Corporate Governance Code and best practice.

The return of the former CEOs of two Nigerian Banks as Chairmen of the respective Banks, raises the question of independence and overbearing influence – particularly in the context of them being substantial shareholders. To neutralize their influence in the interest of all stakeholders, it is recommended that additional Independent Directors (who pass the test in every material respect) be appointed on the Board of these institutions. It is also suggested that the role of the Senior Independent Director as proposed by the draft Financial Reporting Council (FRC) Code of Corporate Governance (aka the National Code) could checkmate a “Super Chairman”.

Selecting a Board Chair is a very important process in the life of any company. Most organizations adopt the democratic approach spelt out in the Companies and Allied Matters Act by voting for one of them to serve as Chair. In appointing a Chairman, it is important to ensure that the individual possesses a good understanding of the company’s business to be able to properly conduct Board meetings and provide oversight. The Chairman must also be a unifying presence with the ability to guide the Board to a consensus in decision making. An effective Chairman should have a good working relationship with the CEO, and enjoy the respect of other Board members. The effectiveness of a Board is dependent largely on the Chairman’s industry knowledge, leadership skills and influence on Board processes.

The Board Chair is expected to have extensive business leadership experience, including crisis leadership, be collaborative and retrained in style, resilient, possess complete candor and have an expectation of same in others. She is expected to downplay self-interest, serve as a trusted counselor and partner of the CEO and display a passion for good corporate governance. The Board Chair should also be able to listen well and get Directors to express underlying concerns.

The Chairman is accountable to and serves at the pleasure of the Board. She provides overall leadership and direction to the Board and the Company; sets the strategic and annual Board plan; chairs Board and General meetings; communicates with shareholders and core investors. The Chairman also oversees Director Nomination, appointment, development and performance evaluation. In this regard, the Chairman should be able to ensure that there are no dysfunctional Directors on the Board and that all Directors are active and given the opportunity to bring their respective leadership experience to the Board.

Although the Chairman acts as a direct liaison between the Board and Management through the CEO, he should possess the skills to carry out the function of providing proper oversight and guidance without micro-managing or getting involved in the day-to-day operations of the company. The concept of the separation of the role of the Chairman from that of the CEO implies that the Chairman should be independent of Management and free from any business interest or other relationships which could interfere with his ability to make independent judgment.

To be an effective leader, the Chairman must be trusted and respected by the other members of the Board and by Management as well as shareholders. To gain the trust of his peers, the Chairman should be fair, open minded and encourage Board members to voice their views without compromising the need to run meetings efficiently. The Board Chair should have influence, corporate diplomacy and constructive guidance. Suffice it to say that the effectiveness of a Board of Directors is severely limited if meetings are conducted by the Chairman in a way that stifles expression of divergent views.

Above all, the Chairman must be a person of integrity, uphold high ethical values and expect same from all Directors. The Board Chair “should be comfortable in own skin and station in life” (“Boards That Lead”, Carey, Charan & Useem) and have the strength of character to truly be the first among equals.

BOARD PERFORMANCE EVALUATION – BEYOND BOX TICKING

The various Codes of Corporate Governance provide that Boards should undertake an annual appraisal of the performance of the Board, Board Committees and of individual Directors. The Report of this assessment is in some cases required to be sent to the industry regulator and presented to the shareholders at a general meeting. Many Boards have taken the attitude that this is yet another compliance requirement and have not fully embraced the inherent value derivable from the process. A Board can easily fulfil the requirements of the applicable Corporate Governance Code or other regulation by checking off the boxes on a “template” and have a report generated to fulfil all righteousness. Clearly, minimum compliance with the technical requirements of good governance does not do much to improve Board effectiveness.

An effective assessment of the performance of the Board provides an opportunity for Boards and individual Directors to monitor progress and renew their commitment to performing their oversight responsibilities. If done badly, it can very well turn into a “mechanical exercise that tests the board’s patience and adds little or no value”Beverly A. Behan. The focus of the Board assessment should be to identify areas of improvement in Board performance rather than giving the Board a Report Card.

Assessing performance is a first step in achieving Board effectiveness, however it will achieve the intended purpose only if the Board is prepared to spend substantial time reviewing the findings, addressing the issues raised that impact on its performance and paying heed to recommendations made.

Three main methodologies are employed when conducting a Board assessment – viz – Review and Analysis of relevant Board related documentation (mainly minutes of Board and Committee meetings, charters, policies, disclosures, etc.); Questionnaires and Structured Interviews. The review of Board and Committee minutes seeks to get a sense of how the Board goes about taking decisions and following up on the implementation of such decisions. It also gives a sense of what matters the Board concerns itself with – strategy monitoring as opposed to micromanagement. Policies around risk management, internal controls, ethical conduct, etc are reviewed to determine how the Board performs its oversight of those matters within its purview.

Questionnaires are administered which seek to rate the performance of the Board in seven key areas – Board Structure and Composition – What is the process of appointing Directors? Is there a transparent and fair process? Diversity? ; Strategy and Planning – How involved is the Board with strategy setting and monitoring? ; Board Operations and Effectiveness – Do Directors receive Board papers in good time to engender effective participation and decision making? Are Board Committees superfluous or really effective? ; Measuring and Monitoring of Performance – How and to what extent does the Board monitor Management Performance? Any KPIs?; Risk Management and Compliance – How effective is Board oversight of Risk Management; compliance and internal control?; Corporate Citizenship – Sustainability issues, ethical conduct ; and Transparency and Disclosure – How does the Board deal with conflicts of interest and related party transactions, etc.

Director responses are collated and assist in determining areas that are of concern to Directors. To be useful, responses have to be frank and provide qualitative feedback.

One-on-one interviews are conducted in person or by telephone depending on accessibility of individual directors. Directors have the opportunity to raise areas of concern not covered by the questionnaire and the interviews allow for probes and follow-ups. They also provide an opportunity for individual directors to provide candid feedback particularly with respect to the Chair and CEO. Directors are invariably more candid when talking to third parties and more apt to bring up unpleasant but unspoken issues.

A report is then generated indicating the key findings and recommendations. The most critical aspect of the performance appraisal exercise is an engaged discussion of the assessment results by the full Board that leads to a prioritization of key issues and an action plan to addresses them. The plan should then be reviewed periodically to monitor progress. Also critical, is the feedback the appraiser provides to the Chair and the CEO or indeed to any other Director that needs to be given some feedback.

Sadly, only a small percentage of Boards fully engage with the process. More often than not, Directors consider the appraisal process a chore that must be undertaken to fulfil compliance requirements. However, increasingly, Directors are beginning to appreciate the utility of the exercise.

If properly done, a Board performance appraisal has the potential to be transformational. Taking a snapshot with a comprehensive assessment allows the Board see clearly its strength and areas requiring improvement. Investing the necessary time and effort for continuous improvement is the hallmark of an effective Board.