Financial Services Act No. 26 of 2010

(Published 30th July, 2010)

Act

No. 26 of 2010

I assent

PROF. BINGU WA MUTHARIKA
PRESIDENT
29TH JULY, 2010

ARRANGEMENT OF SECTIONS

PART I—PRELIMINARY

1. Short title
2. Interpretation
3. Principal object of this Act
4. Subsidiaries, holding companies and related bodies corporate
5. Controlling parties of financial institutions
6. References to obligations where financial institution not a legal person
7. Financial services laws bind Government

PART II—THE RESERVE BANK AND THE REGISTRAR

Division 1—Registrar to Regulate and Supervise Financial Institutions

8. Registrar of Financial Institutions
9. Additional function of Reserve Bank of Malawi
10. Registrar’s objectives
11. Registrar to report financially unsound financial institutions

Division 2—Financial and Accountability Provisions

12. Funding for supervisory functions
13. Supervisory levies to be prescribed
14. Fees and charges to be prescribed
15. Supervisory levies debt due to Registrar
16. Levies Account
17. Investment of Levies Account surplus
18. Registrar’s annual report

PART III—LICENSING AND REGISTRATION OF FINANCIAL INSTITUTIONS

Division 1—Licensing and Registration Requirements

19. Arrangements with other agencies
20. Delegation
21. Financial institutions to be licensed

Division 2—Licensing and Registration Procedures

22. Application of the Division
23. Licensing and registration applications and procedure
24. Notification of breach of licence or registration conditions
25. Issue and publication of licence
26. Variation, suspension and revocation of licences and registrations on request
27. Variation, suspension and revocation of licences and registrations
28. Exemptions from licensing and registration requirements

PART IV—CORPORATE GOVERNANCE

29. Board of directors
30. Appointment of executive officers and managers
31. Removal of executive officers or managers
32. Prohibition of self-dealing
33. Related Parties

PART V—SUPERVISION AND REGULATION OF FINANCIAL INSTITUTIONS

Division 1—Registrar’s Directives

34. Registrar’s directives

Division 2—Information, Reports, etc.

35. Directions to licensed or registered institutions to provide information
36. Requirements to provide information
37. Audited statements
38. Exchange of information

Division 3—Directions

39. Directions to licensed or registered financial institutions

PART VI—AUDITORS

40. Directions not ground for terminating contracts or accelerating debt
41. Examiners
42. Investigators
43. Powers and protections of investigators
44. Identity cards
45. Declaration of Self-Regulatory Organizations
46. Rules by Self-Regulatory Organizations
47. Person affected to be heard
48. Self-Regulatory Organization to inform the Registrar of an appointment of director or executive
49. Declaration of Self-Regulatory Organizations revocable by Registrar
50. Amendment to Self-Regulatory Organization articles
51. Protection for Self-Regulatory Organizations
52. Annual reports by Self-Regulatory Organizations
53. Limitation on shareholding
54. Controlling parties to require Registrar’s approval
55. Internal auditor
56. Appointment of an external auditor
57. Auditor to report to Registrar
58. Meetings with Registrar
59. Duties of external auditors to the Registrar
60. Changes of external auditors to be approved by Registrar

PART VII—REGULATING MARKET PRACTICES OF FINANCIAL INSTITUTIONS

61. Application of Part VII
62. Misleading and deceptive conduct
63. Prohibited practices
64. Disclosure by financial institutions

PART VIII—AMALGAMATIONS, TRANSFERS OF BUSINESS, STATUTORY MANAGEMENT AND WINDING-UP OF PRUDENTIALLY REGULATED FINANCIAL INSTITUTIONS

Division 1—Compromises and Arrangements and Transfers of Business

65. Application of Part VIII
66. Compromises and arrangements
67. Transfer of business

Division 2—Statutory Management

68. Appointment of statutory managers
69. Statutory managers
70. Legal proceedings against prudentially regulated financial institution under statutory management
71. Period of statutory management

Division 3—Winding-Up

72. Winding-up of prudentially regulated financial institutions

PART IX—ENFORCEMENT OF FINANCIAL SERVICES LAWS

73. Enforceable undertakings
74. Compensation for loss from breach of financial services laws
75. Administrative penalties
76. Court Orders
77. Exemptions

PART X—REVIEW OF DECISIONS

Division 1—Financial Services Appeals Committee

78. Financial Services Appeals Committee
79. Membership
80. Vacation of office
81. Disclosure of interest
82. Appeals to the Appeals Committee
83. Restriction on altering decisions under review

Division 2—Conduct of Review Proceedings

84. Notice of, and parties, to review proceedings
85. Procedure
86. Hearings
87. Rights of parties to review proceedings

PART XI—MISCELLANEOUS

88. Powers of Appeals Committee
89. Rights of legal practitioners, witnesses, etc.
90. Summons
91. Decisions of Appeals Committee
92. Appeal from decisions of Appeals Committee
93. Registrar to promote complaint resolution scheme
94. Requirements for complaint resolution schemes
95. Advisory bodies
96. Guidelines and bulletins
97. Holding out
98. Indemnity
99. Confidentiality
100. Customer due diligence
101. Offences relating to failure to answer questions
102. Offences relating to misleading answers and information
103. Offences relating to compliance with directions
104. Self-incrimination
105. Offences relating to holding out as licensed person
106. Destroying documents
107. Obstruction
108. Preventing compliance
109. Extension of time
110. Certificate by Registrar
111. Offences by bodies corporate relating to state of mind
112. Offences by bodies corporate relating to liability of directors
113. Penalties for offences by bodies corporate
114. Offences relating to acts done partly outside Malawi
115. Inconsistency with the Companies Act
116. Regulations

PART XII—TRANSITIONAL AND CONSEQUENTIAL PROVISIONS

117. Transition period

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An Act to make provision for the supervision and regulation of financial institutions and for matters connected therewith and incidental thereto

ENACTED by the Parliament of Malawi as follows—

PART I—PRELIMINARY

1. Short title and application

This Act may be cited as the Financial Services Act, 2010, and shall apply in addition to the provisions of other financial services laws.

2. Interpretation

(1) In this Act, unless the context otherwise requires—

• “administrative penalty” means a penalty that the Registrar may impose on any person who contravenes this Act or any financial services law;
• “Appeals Committee” means the Financial Services Appeals Committee established by section 78;
• “associate”—
  • (a) in relation to a body corporate, means a controlling party, a subsidiary or a related body corporate of the body corporate; and
  • (b) in relation to an individual, means—
    • (i) a close relation of the individual; or
    • (ii) a partner, or a close relation of a partner, of the individual;
• “bank” means a bank as defined in the Banking Act, 2010;
• “close relation” means spouse, brother, sister, parent, child, child of the spouse and the spouse of any of these relations;
• “controlling party” means a controlling party as described in section 5;
• “Court” means the High Court of Malawi;
• “complaint resolution scheme” means a scheme of the type mentioned in Division 3 of Part X;
• “compromise or arrangement” means—
  • (a) a compromise or arrangement in relation to a prudentially regulated financial institution, being a compromise or arrangement of a kind described in the Companies Act; and
  • (b) any other arrangement, however described, for the amalgamation of a prudentially regulated financial institution with one or more other bodies corporate or the reconstruction of a prudentially regulated financial institution;
• “credit reference bureau” means credit reference bureau as defined in the Credit Reference Bureau Act, 2010;
• “custodian” means a person who, by way of business, holds property of other persons for safe-keeping;
• “director”, in relation to a body corporate, means each of the following—
  • (a) a person who is appointed to a position of director or alternate director of the body corporate;
  • (b) a person who, although not appointed to a position of director or alternate director, acts as a director of the body corporate;
  • (c) a person in accordance with whose instructions or wishes the directors of the body corporate are accustomed to act, provided that this paragraph shall not apply merely because the directors act on advice given by the person in the proper performance of functions attaching to the person’s professional capacity, or the person’s business relationship with the directors or the body corporate;
• “examiner” means a person appointed as an examiner under section 41;
• “executive officer” means an officer or manager at the most senior level of management of a financial institution, whether or not he is also a director, who effectively manages that financial institution;
• “financial crime” means any of the following—
  • (a) a criminal offence, whether or not arising under a financial services law, that involves fraud or dishonesty relating to a financial institution;
  • (b) financing or facilitating a criminal offence, whether or not it arises under a financial services law, relating to a financial institution;
  • (c) dealing with the proceeds of a criminal offence, whether or not it arises under a financial services law and whether or not it relates to a financial institution;
  • (d) an offence against the Money Laundering, Proceeds of Serious Crime and Terrorist Financing Act, 2006, being an offence relating to a financial institution; or
  • (e) financing of terrorist activity in any place;
• “financial group” means either of the following—
  • (a) a group consisting of a prudentially regulated financial institution and each body corporate of which that institution is a controlling party;
  • (b) a group consisting of two or more prudentially regulated financial institutions that have a common controlling party and the bodies corporate of which any of those institutions is a controlling party;
• “financial institution” means each of the following—
  • (a) a bank;
  • (b) each of the following as defined in the Securities Act, 2010—
    • (i) a securities dealer;
    • (ii) a securities broker;
    • (iii) a securities representative;
    • (iv) an investment adviser;
    • (v) a stock exchange;
    • (vi) a securities depository;
    • (vii) a collective investment scheme;
    • (viii) an investment company;
    • (ix) a portfolio manager;
    • (x) a securities market intermediary;
  • (c) a person who provides securities registration services for the purposes of the Securities Act, 2010;
  • (d) each of the following as defined in the Insurance Act, 2010—
    • (i) an insurer;
    • (ii) a reinsurer;
    • (iii) an insurance broker;
    • (iv) an agent for brokers;
    • (v) an insurance agent;
    • (vi) a loss assessor or adjustor;
    • (vii) a claims settling agent;
  • (e) each of the following as defined in the Microfinance Act, 2010—
    • (i) a microcredit agency;
    • (ii) a microfinance institution;
  • (f) each of the following as defined in the Financial Cooperatives Act, 2010—
    • (i) a primary SACCO;
    • (ii) a secondary SACCO;
  • (g) each of the following as defined in the Pension Act, 2010—
    • (i) a pension fund;
    • (ii) an umbrella fund;
    • (iii) an administrator of a pension fund;
    • (iv) an investment manager for a pension fund or an umbrella fund;
    • (v) a pension broker;
  • (h) a trustee of a collective investment scheme as defined in the Securities Act, 2010, or of a pension fund or an umbrella fund as defined in the Pension Act, 2010;
  • (i) an actuary for an insurer as defined in the Insurance Act, 2010, or for a pension fund as defined in the Pension Act, 2010;
  • (j) a custodian;
  • (k) a friendly society;
  • (l) a medical aid fund;
  • (m) a person who, by way of business, in Malawi—
    • (i) buys or borrows foreign currency from,
    • (ii) sells or lends foreign currency to, or
    • (iii) exchanges foreign currency with,
      a person other than the Reserve Bank;
  • (n) a person who, by way of business, transfers funds to foreign countries, or carries out activities to the same, or to a similar, effect:
    • (o) a holding company;
    • (p) a credit reference bureau, as defined in the Credit Reference Bureau Act, 2010;
    • (q) a building society as defined in the Building Societies Act;
    • (r) finance or leasing company;
    • (s) the operator of a financial institution as defined in paragraphs (a) to (r) of this definition; and
    • (t) a person, business or fund declared by Registrar’s directives or by another financial services laws to be a financial institution;
• “financial services” means services relating to financial matters;
• “financial services law” means any of the following—
  • (a) this Act;
  • (b) the Banking Act, 2010;
  • (c) the Building Societies Act;
  • (d) the Insurance Act, 2010;
  • (e) the Pension Act, 2010;
  • (f) the Securities Act, 2010;
  • (g) the Microfinance Act, 2010;
  • (h) the Financial Cooperatives Act, 2010;
  • (i) the Reserve Bank of Malawi Act;
  • (j) the Credit Reference Bureau Act, 2010;
  • (k) a law that declares itself to be a financial services law for the purposes of this definition;
  • (l) a law prescribed for the purposes of this definition; and includes regulations, the Registrar’s directives and directions;
• “financial year” means a period of twelve months starting on 1 January;
• “finance or leasing company” means a body corporate that provides loans, advances or leasing products, but does not include a bank;
• “friendly society” means an association established with no share capital for the purpose of aiding members of the association and their dependants, being an association that does not employ a person with the main occupation of canvassing for members of, or collecting contributions or subscriptions for, the association;
• “holding company” means a body corporate the principal function of which is to act as controlling party for one or more prudentially regulated financial institutions;
• “investigator” means a person appointed as an investigator under section 42;
• “Levies Account” means the account established as required by section 16;
• “licence” means a licence under this Act or under another financial services law;
• “licensed” means licensed under this Act or under another financial services law;
• “licensee” means a person licensed under this Act or under another financial services law;
• “manager”, in relation to a financial institution, includes a person, whether or not an employee, who exercises managerial functions in relation to the financial institution;
• “medical aid fund” means a scheme that provides insurance or similar cover for financial or other assistance to persons in connexion with prescribed medical services;
• “microcredit” means the provision of small loans to small or micro enterprises or to low income customers or as prescribed by the Registrar, where—
  • (a) such loans are granted to a natural person individually, or in a group, whose income depends on his, her or the group’s own business or economic activity;
  • (b) security for such loans may include non-traditional instruments such as group guarantees or compulsory savings;
  • (c) the borrower may be required to make frequent repayments in small amounts; and
  • (d) such loans may take the form of microhousing or microleasing products designed for microfinance customers;
• “operate”, in relation to a financial institution, includes to—
  • (a) establish or administer the financial institution; and
  • (b) exercise managerial functions in relation to the financial institution;
• “prudentially regulated financial institution” means each of the following—
  • (a) a bank;
  • (b) a licensed microfinance institution;
  • (c) each of the following as defined in the Securities Act, 2010—
    • (i) a securities exchange;
    • (ii) a securities depository;
    • (iii) a securities broker;
  • (d) each of the following as defined in the Insurance Act, 2010—
    • (i) an insurer;
    • (ii) a reinsurer;
  • (e) each of the following as defined in the Financial Cooperatives Act, 2010—
    • (i) a primary SACCO; and
    • (ii) a secondary SACCO;
  • (f) each of the following as defined in the Pension Act, 2010—
    • (i) a pension fund; and
    • (ii) an umbrella fund;
  • (g) a trustee of a collective investment scheme as defined in the Securities Act, 2010, or of a pension fund or an umbrella fund as defined in the Pension Act, 2010;
  • (h) a custodian;
  • (i) a medical aid fund;
  • (j) a friendly society;
  • (k) a holding company;
  • (l) a building society as defined in the Building Societies Act;
  • (m) a credit reference bureau as defined in the Credit Reference Bureau Act, 2010;
  • (n) a financial institution declared by Registrar’s directives or by another financial services law to be a prudentially regulated financial institution; and
  • (o) the operator of a financial institution as defined in paragraphs (a) to (m) of this definition;
• “records” of a financial institution, means documents and information used in the ordinary course of the business of the institution, whether in written form or kept on microfilm, magnetic tape or any other form of mechanical or electronic medium;
• “Registrar’s directive” means a directive issued under this Act or another financial services law;
• “registered” means registered under this Act or under another financial services law;
• “Reserve Bank” means the Reserve Bank of Malawi established under the Reserve Bank of Malawi Act;
• “savings and credit cooperative (SACCO)” means a cooperative, as defined in the Financial Cooperatives Act, 2010, whose principle object includes accepting deposits, advancing of loans, and providing other financial services to or for its members and is a licensee;
• “securities” bears the same meaning as in the Securities Act, 2010;
• “self-regulatory organization” means a body declared to be a self-regulatory organization under section 45;
• “self-regulatory organization arrangements” means arrangements described in section 45;
• “share”, in relation to a body corporate, means a share in the capital or stock of the body corporate;
• “statutory manager”, for a prudentially regulated financial institution, means a person appointed as statutory manager for the institution under section 68;
• “supervisory expenditure” means expenditure in connexion with the supervisory functions of the Registrar;
• “supervisory functions”—
  • (a) in relation to the Registrar, means the functions of the Registrar under or in connexion with this Act or another financial services law; and
  • (b) in relation to a self-regulatory organization, means the functions of the organization in respect of which arrangements described in section 45 are in force;
• “supervisory levy” means a levy imposed by regulations made for the purposes of section 13.

(2) A reference in this Act or in another financial services law to operating or conducting a financial institution includes a reference to operating the institution by providing financial services to a person outside Malawi; but this subsection does not limit the provision of this Act or the other financial services law in which the expression is used.

3. Principal object of this Act

The principal object of this Act is to provide for the regulation and supervision of financial institutions in Malawi to foster—

• (a) the safety and soundness of financial institutions;
• (b) the highest standards of conduct of business by financial institutions;
• (c) the fairness, efficiency and orderliness of the financial sector;
• (d) the stability of the financial system; and
• (e) the reduction and deterrence of financial crime in financial institutions.

4. Subsidiaries, holding companies and related bodies

For the purposes of a financial services law, the question whether a body corporate is a subsidiary, a holding company or a related body corporate of another body corporate shall be determined in accordance with the Companies Act as if both bodies corporate were companies for the purposes of that Act.

5. Controlling parties of financial institutions

(1) For the purposes of a financial services law, a person is a controlling party of another person (the other person otherwise referred to as “the relevant person” in this section) if the first-mentioned person is in a position to control or exert significant influence over the business or financial operations of the relevant person, whether or not that control is exercised.

(2) Without limiting subsection (1), each of the following is also a controlling party of a person—

• (a) if the relevant person is a body corporate—
  • (i) a director or member of the governing body of the body corporate;
  • (ii) a person that has the power to appoint a person to be a director or member of the governing body of the body corporate;
  • (iii) a person whose consent is needed for the appointment of a person to a director of the body corporate;
  • (iv) a person that holds at least ten per cent (10%) of the shares of the body corporate;
  • (v) a person that has the power to control at least ten per cent (10%) of the voting rights attached to shares or other securities of the body corporate;
  • (vi) a person that holds rights in relation to the body corporate that, if exercised, would result in the person’s holding at least ten per cent (10%) of the shares of the body corporate or having the power to control at least ten per cent (10%) of the voting rights attached to shares or other securities of the body corporate;
• (b) if the relevant person is a subsidiary of another person, each person that is a controlling party of the other body;
• (c) if the relevant person is a prudentially regulated financial institution, a person declared by the Registrar under subsection (5) to be a controlling party of the institution,

provided that a Minister, the Registrar or the Reserve Bank, in that capacity, shall not be a controlling party of a relevant person in terms of this subsection.

(3) The provisions of subsection (2) are separate and independent, and none of those provisions affects the interpretation of any other provisions of this section.

(4) Registrar’s directives may modify subsection (2) (a) (iv), (v) or (vi) by varying the percentage, either generally or in a class of cases specified in the directives.

(5) The Registrar may declare in writing that a specified person is or is not a controlling party of a prudentially regulated financial institution.

(6) The Registrar shall make a declaration under subsection (5) that a person is a controlling party of a prudentially regulated financial institution unless—

• (a) the person has been given notice of the proposed declaration and a reasonable opportunity to make representations to the Registrar about the matter; and
• (b) having regard to any such representations, the Registrar is satisfied that the person is in a position to control or exert significant influence over the business or financial operations of the institution.

6. References to obligations where financial institution is not a legal person

Where this Act or another financial services law imposes an obligation on or in respect of a financial institution that is not a legal person, such as a trust, the obligation shall be deemed to be imposed on or with respect to the person who operates the financial institution, such as, in the case of a trust, the trustee.

7. Financial services laws bind Government

Except to the extent specified in a financial services law, this Act and the other financial services laws bind the Republic and the Government.

PART II—THE RESERVE BANK AND THE REGISTRAR

Division 1—Registrar to Regulate and Supervise Financial Institutions

8. Registrar of Financial Institutions

(1) There is hereby appointed a Registrar of Financial Institutions for the purposes of this Act and all financial services laws, who shall be the regulatory and supervisory authority for the financial services industry.

(2) The Governor of the Reserve Bank shall be the Registrar.

(3) The Registrar shall be supported by adequate structures and employees with appropriate skills to enable him perform the duties of the Registrar.

(4) Without limiting the Registrar’s powers to create appropriate structures, the Registrar shall establish departments to supervise the operations of banking, insurance, pension benefit fund schemes, securities market entities, and any other area deemed necessary by the Registrar for the better carrying out of the requirements of this Act.

9. Additional function of Reserve Bank of Malawi

(1) In addition to the functions it has under the Reserve Bank of Malawi Act, the Reserve Bank has the function of supporting the Registrar in carrying out his functions under this Act and other financial services laws.

(2) In addition to the functions of the Registrar under this Act and the other financial services laws, the Registrar has the function of advising the Minister on matters related to financial institutions and financial services, whether of his own accord or at the request of the Minister.

10. Registrar’s objectives

The Registrar shall perform his supervisory functions with a view to achieving—

• (a) the safety and soundness of prudentially regulated financial institutions;
• (b) the highest standards of conduct of business by financial institutions;
• (c) the fairness, efficiency and orderliness of the financial sector;
• (d) the stability of the financial system; and
• (e) the reduction and deterrence of financial crime in financial institutions.

11. Registrar to report financially unsound financial institutions

If the Registrar believes that—

• (a) a prudentially regulated financial institution is financially unsound; and
• (b) the situation may impair the stability of the financial system or the safety and soundness of financial institutions generally,

the Registrar shall report the matter to the Minister and shall take such actions as the Registrar is authorized to take under any financial services law.

Division 2—Financial and accountability provisions

12. Funding for supervisory functions

(1) The following funds may be applied to the Registrar’s supervisory expenditure—

• (a) supervisory levies imposed on financial institutions under section 13, and interest in respect of unpaid supervisory levies;
• (b) money raised as fees, charges and fines, and interest from unpaid fees and charges, in respect of services rendered by the Registrar in performing his supervisory functions; and
• (c) money otherwise paid in relation to the Registrar’s supervisory functions.

(2) The funds referred to in subsection (1) (a) and (c) shall not be applied to any other purpose.

13. Supervisory levies to be prescribed

(1) The Minister may, on recommendation of the Registrar, make regulations for, or with respect to, the imposition and collection of supervisory levies.

(2) The regulations shall set out the basis of calculation of supervisory levies for a financial year.

(3) Different bases of calculation, and different rates of supervisory levy, may be prescribed for different classes of financial institutions.

(4) The regulations may include provision for imposing interest on unpaid supervisory levy, and for imposing penalty levy for cases where a miss-statement or other non-compliance by a financial institution leads to an under-collection of supervisory levy.

14. Fees and charges to be prescribed

(1) The Registrar may, through a Registrar’s directive, impose fees and charges for licences and renewals of licences, and for other services provided by the Registrar in performing his supervisory functions.

(2) Different rates of fees and charges may be imposed for different classes of financial services, and different classes of licence or service.

15. Supervisory levies debt due to Registrar

An amount of a supervisory levy, penalty levy, fee or charge is a debt due to the Registrar and may be recovered by action in a court of competent jurisdiction.

16. Levies Account

(1) The Registrar shall establish an account, to be called the Levies Account.

(2) The following shall be paid into the Levies Account—

• (a) money paid to the Registrar as supervisory levies, penalty levies, fees or charges; and
• (b) money paid to the Registrar in relation to the Registrar’s supervisory functions.

17. Investment of Levies Account surplus

Money standing to the credit of the Levies Account but not immediately required may be invested as the Registrar may deem appropriate.

18. Registrar’s annual report

The Registrar shall, within six months of the end of each calendar year submit an annual report to the Minister and a committee of Parliament responsible for financial matters, which shall include—

• (a) details of the sources and application of supervisory funds for the year to which the report relates;
• (b) an account of the performance of the Malawi financial sector over the year to which the report relates and of the way in which the Registrar has performed his supervisory functions in that year;
• (c) an account of the Registrar’s proposed supervisory activities and priorities for the year after the year to which the report relates; and
• (d) details of any matter or circumstance that has arisen since the end of the year to which the report relates that has significantly affected, or may significantly affect, the performance by the Registrar of his supervisory functions in future financial years.

Division 3—Other Provisions

19. Arrangements with other agencies

(1) In carrying out his supervisory functions, the Registrar shall consult, and may enter into arrangements with, other agencies of the Government that have functions related to the financial system, the regulation or supervision of financial services, taxation or social security.

(2) Without limiting what arrangements under subsection (1) may deal with, those arrangements may make provision with respect to—

• (a) the exchange of information between the Registrar and the other agencies, with due regard for the need to protect appropriately personal information about individuals;
• (b) consultation between the Registrar and the other agencies;
• (c) enforcement of financial services laws and assistance with enforcement of other laws; and
• (d) the conduct of examinations and investigations on a joint basis.

(3) The Registrar may enter into similar arrangements with organizations outside Malawi that have responsibilities under law for the regulation and supervision of financial institutions or similar institutions.

20. Delegation

(1) The Registrar may delegate any of his supervisory functions, other than this power of delegation, to—

• (a) a director or employee of the Reserve Bank;
• (b) an examiner;
• (c) an investigator; or
• (d) a self-regulatory organization.

(2) A delegation under this section may be subject to conditions specified in the instrument of delegation.

(3) In performing or exercising a delegated function or power, the delegate shall comply with directions given by the person delegating the function or power.

(4) A delegation may be varied or revoked at will and does not prevent the Registrar from exercising the delegated power or performing the delegated function.

PART III—LICENSING AND REGISTRATION OF FINANCIAL INSTITUTIONS

Division 1—Licensing and Registration Requirements

21. Financial institutions to be licensed

(1) A person shall not operate, as a business, a financial institution unless—

• (a) the financial institution is licensed or registered under this Act; and
• (b) the financial institution is complying with the terms of the licence, including any conditions to which the licence is subject.

(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine of ten million Kwacha (K10,000,000) and to imprisonment for four years.

(3) In the case of a continued contravention by a person convicted under subsection (1), that person shall be guilty of a further offence and shall be liable to a fine of fifty thousand Kwacha (K50,000) for every day on which the contravention continues.

(4) Subsection (1) shall not apply in relation to a financial institution if another financial services law requires the institution to be licensed or registered under that law.

(5) The Registrar may, by directives not inconsistent with this Act or another financial services law, impose requirements with respect to licensing or registration of financial institutions.

Division 2—Licensing and Registration Procedures

22. Application of the Division

This Division shall apply in relation to a financial institution if, by or under this Act or another financial services law, there is a requirement for the financial institution to be licensed or registered.

23. Licensing and registration applications and procedure

(1) The Registrar may, on application—

• (a) grant a financial institution a licence;
• (b) register a financial institution; or
• (c) grant a renewal of such a licence or registration.

(2) An application shall be—

• (a) made by the financial institution concerned;
• (b) made to the Registrar as prescribed;
• (c) accompanied by such documents, statements and other information as are prescribed; and
• (d) accompanied by the prescribed fee, if any.

(3) The Registrar may require an applicant to provide further information in connexion with the application, and the Registrar need not deal further with that application until the requirement is satisfied.

(4) The Registrar shall not grant an application for a licence or registration unless satisfied that—

• (a) the documents submitted by the applicant are valid and the information is not questionable;
• (b) the business to be carried out by the financial institution will be conducted with integrity, prudence and professional skill;
• (c) the nature and scope of the proposed operations shall meet the needs and convenience of the community or sector to be served;
• (d) the financial institution has and will maintain a sound financial position and not cause or promote instability in the financial system; and
• (e) the financial institution otherwise meets and will continue to meet the requirements of the relevant financial services laws.

(5) A financial services law may prescribe additional criteria for granting licences or procedures for registration.

(6) The Registrar may grant an application for a licence or registration subject to conditions specified in the licence or certificate of registration.

(7) Any person who knowingly or recklessly furnishes any document which is false or misleading in a material particular in connexion with an application for a licence or registration commits an offence and shall, on conviction, be liable to a fine of ten million Kwacha (K10,000,000) and to imprisonment for four years.

24. Notification of a breach of licence or registration conditions

A licensed or registered financial institution shall, as soon as practicable after it becomes aware that a condition to which the licence or registration is subject has not been complied with, notify the Registrar of the matter, and give the Registrar such further information about the matter as the Registrar requires.

25. Issue and publication of licence

(1) If the Registrar grants an application for a licence, he shall issue the licence to the applicant.

(2) If the Registrar grants an application for registration, he shall issue a certificate of registration to the applicant.