Act No. 38 OF 2021, THE INSURANCE ACTpdf - 0
Act No. 38 OF 2021, THE INSURANCE ACTpdf - 0
Act No. 38 OF 2021, THE INSURANCE ACTpdf - 0
38 of 2021 415
THE INSURANCE ACT, 2021
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY PROVISIONS
Section
1. Short title and commencement
2. Interpretation
PART II
ADMINISTRATION
3. Administration of Act
4. Seal of Authority
5. Registrar
PART III
REGULATION OF INSURANCE INDUSTRY
6. Prohibition on carrying on insurance business without licence
7. Types of licences
8. Categories of insurance business
9. Restriction on composite insurance
10. Application for insurance licence
11. Consideration and grant or refusal to grant licence
12. Duration of licence
13. Surrender of licence
14. Suspension and cancellation of licence
15. Effect of suspension or cancellation of licence
16. Loss or damage of licence
17. Application for amendment of licence
18. Accepting insurance business from unlicensed person
19. Entering into insurance contract with unlicensed person
20. Repayment of funds
21. Insurance broker to transmit premium
22. Separate client account
Single copies of this Act may be obtained from the Government Printer,
P.O. Box 30136, 10101 Lusaka. Price K188.00 each
416 No. 38 of 2021] Insurance
PART IV
INSURANCE POLICIES
23. Lodging of insurance form
24. Form of policies
25. Premium rates
26. Payment of premium
27. Currency
28. Settlement of claims
29. Policies and payments
30. Action against insurer and insurance broker
31. Life insurance by minor
32. Customer due diligence to life insurance polices
33. Protection of proceeds during life of policyholder
34. Protection of beneficiary on death of policyholder
35. Protection of policy for spouse and children
36. Further protection for spouse
37. Selection for realisation of life policy
38. Partial realisation and conversion of policy
39. Agreement to exchange life policy
40. Incorrect statement in proposal for life policy
41. Life policy intended to defraud creditor
42. Proof of age
43. Incorrect age in life policy
44. Death occasioned by insured person or beneficiary
45. Lost or destroyed life policy
46. Cancellation of life policy
47. Discrimination between life policy
48. Premium rate on life policy
Insurance [No. 38 of 2021 417
PART V
MANAGEMENT AND SHAREHOLDING FOR INSURER,
REINSURER AND INSURANCE BROKER
49. Shareholding
50. Principal office for insurance business
51. Representation by chief executive officer
52. Acting as director or senior officer
53. Appointment of directors and officers
54. Approval or refusal to approve appointment
55. Notice of termination of appointment
56. Absence of chief executive officer
57. Restriction on employment
58. Restriction on holding shares
59. Board of directors of insurer or reinsurer
60. Corporate governance standards
PART VI
FINANCIAL REGULATION OF INSURANCE BUSINESS
61. Reserves for unexpired risk
62. Reserves for outstanding claims
63. Statutory fund
64. Compliance with solvency requirements
65. Solvency statement
66. Furnishing of information on assets and liabilities
67. Publication of authorised capital, subscribed capital and paid up capital
68. Investment of funds
69. Licensee to appoint actuary
70. Notification of ceasing to have actuary
71. Actuarial investigations
72. Distribution of surplus to policyholders
73. Notification where capital requirements unlikely to be met
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PART VII
REINSURANCE
74. Reinsurance programmes
75. Submission of reinsurance treaties and contracts
76. Promotion of local cessions and conduct of reinsurance business
77. National Reinsurance Company
78. Mandatory cessions
PART VIII
MERGERS AND TAKEOVERS OF INSURANCE BUSINESS
79. Prohibition on mergers and takeovers
80. Approval of merger or takeover or transfer
81. Inquiry into effect of merger or takeover
82. Notice to policyholders
83. Determination of application
84. Notification on finalisation of merger or takeover
85. Effect of merger or takeover on insurer
86. Effect of merger or takeover on policyholder
PART IX
AUDITORS, ACCOUNTS AND RETURNS
87. Appointment of external auditor
88. Appointment of firm or body corporate
89. Duties of external auditor
90. External auditor’s duty to report
91. Immunity of external auditor
92. Disqualification of external auditor
93. Auditing of accounts
94. Request for extended scope audit
95. External auditor’s certificate
96. Information by external auditor to Authority
97. Access to information by external auditor
98. External auditor’s report
Insurance [No. 38 of 2021 419
99. Dismissal of external auditor by Authority
100. Resignation of external auditor
101. Termination of appointment of external auditor by insurer, reinsurer or
insurance broker
102. Audit committee
103. Financial statements and other returns
104. Financial year
105. Submission of signed financial statements
106. Insurer and reinsurer quarterly returns
107. Broker’s quarterly returns
108. Separate accounts for classes of insurance business
109. Signing of accounts and statements
110. Publication of returns and statements
111. Unauthorised publication of returns and statements
112. Examination of returns and reports
PART X
INSPECTIONS AND CO-OPERATION
113. Establishment of inspectorate
114. Appointment of inspectors
115. Conduct of inspections
116. Request for information
117. Appointment of expert investigators
118. Consolidated supervision
119. Cooperation with other institutions
PART XI
SUPERVISORY ACTION
120. Supervisory action by Authority
121. Nature of supervisory action
122. Restrictions on classes of transactions
123. Prohibition from dealing with assets
124. Variation or rescission of restriction or prohibition
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125. Notice of taking possession
126. Powers of Authority on taking possession
127. Statement of assets and liabilities
128. Petition to Minister against possession
129. Effect of possession
130. Restructuring and reorganisation
131. Expenses incurred in taking possession
132. Power of authority to appoint agent on taking possession
PART XII
INSOLVENCY, DISSOLUTION AND LIQUIDATION OF
INSURER, REINSURER OR INTERMEDIARY
PART XIII
COMPLAINTS
156. Initiation of investigation
157. Refusal to investigate or discontinue complaint
158. Continuation of investigation where complaint withdrawn
159. Referral of matter
160. Collaboration on investigation
161. Enforcement notice
162. Variation or cancellation of enforcement notice
PART XIV
INSURANCE TRIBUNAL
163. Right to appeal
164. Appointment and convening of appeals tribunal
165. Tribunal Rules
PART XV
GENERAL PROVISIONS
166. Insurance to be placed within Republic
167. Documents to be signed and copies supplied
168. Register of licensees
169. Display of information
170. Publication of change of name
171. Alteration of prescribed forms
172. False documents
173. Offence by principal officers of body corporate or unincorporate body
174. Prohibition of use of certain titles
175. Membership to associations
176. General penalty
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177. Administrative penalty
178. Immunity of officer, agent or employee of Authority
179. Regulations
180. Repeal of Act No. 27 of 1997
SCHEDULE
Insurance [No. 38 of 2021 423
GOVERNMENT OF ZAMBIA
ACT
No. 38 of 2021
Date of Assent:19th May, 2021
PART I
PRELIMINARY PROVISIONS
1. This Act may be cited as the Insurance Act, 2021, and shall Short title and
come into operation on the date appointed by the Minister by commencement
statutory instrument.
2. In this Act, unless the context otherwise requires— Interpretation
“ actuary ” means a person appointed as an actuary under
section 69;
424 No. 38 of 2021] Insurance
“ Agreement ” means the Agreement establishing the ZEP-
RE (Preferential Trade Area Reinsurance Company)
signed by Heads of State and Government of the Common
Market for Eastern and Southern Africa region on 21st
November, 1990, in Mbabane, Swaziland;
“ Africare Agreement ” means the Agreement establishing
the African Reinsurance Corporation, which was signed
on behalf of the African States, members of the
Organisation for African Unity (now African Union) and
the African Development Bank on 24th February, 1976, in
Yaoundé, Cameroon and came into force, in respect of
Zambia, on 31st January, 1977;
“ appropriate authority ” means the Minister responsible for,
or such public body having powers under, any other written
law over an incorporate or unincorporate entity and the
management of insurance information and includes a public
officer or employee of a statutory body or institution under
the following laws—
Act No. 35 (a) the Narcotic Drugs and Psychotropic Substances
of 2021 Act;
Cap. 107 (b) the Zambia Police Act;
Cap. 321 (c) the Zambia Revenue Authority Act;
Act No. 14 of (d) the Prohibition and Prevention of Money
2001
Laundering Act, 2001;
Act No. 11 of (e) the Road Traffic Act, 2002
2002
Act No. 15 of (f) the Information and Communications Technologies
2009 Act, 2009;
PART II
ADMINISTRATION
3. This Act shall be administered by the Authority. Administration
of Act
PART III
REGULATION OF INSURANCE INDUSTRY
6. (1) A person shall not carry on insurance business or hold Prohibition
on carrying
oneself out as an insurer, reinsurer, intermediary, assessor, claims on insurance
agent, loss adjustor or risk surveyor unless the person is licensed business
without
under this Act. licence
(2) A person who contravenes subsection (1) commits an
offence and is liable, on conviction, to a fine not exceeding two
hundred thousand penalty units or to imprisonment for a term not
exceeding two years, or to both.
7. A licence issued by the Authority shall authorise the licensee Types of
to provide any of the following types of insurance services: licences
(a) insurance;
(b) reinsurance;
(c) microinsurance;
(d) insurance brokering;
(e) loss adjustering;
(f) microinsurance agregation;
(g) microinsurance agency;
(h) risk surveyor;
(i) assessor;
(j) claims agency;
(k) insurance agency; and
(l) underwriting agency.
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14. (1) Subject to section 120, the Authority may take Suspension
supervisory action by suspending or cancelling a licence. and
cancellation
(2) The Authority shall, before suspending or cancelling a of licence
licence, in accordance with subsection (1)—
(a) give to the licensee, in the prescribed form and manner,
written notice of its intention to suspend or cancel the
licence;
(b) give the reasons for the intended suspension or
cancellation; and
(c) direct the licensee to show cause, within a period of
thirty days, why the licence should not be suspended or
cancelled.
(3) Where a licensee takes remedial measures to the
satisfaction of the Authority, within the period specified in subsection
(2), the Authority shall not suspend or cancel the licence.
(4) The Authority shall, in making its final determination on
the suspension or cancellation of a licence, consider the submissions
made by the licensee, under subsection (2), and any remedial
measures taken under subsection (3).
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16. (1) A licensee who loses a licence, issued under this Act, Loss or
shall— damage of
licence
(a) within seven days of the loss, inform the Registrar in
writing; and
(b) apply to the Authority, in the prescribed manner and
form, for a duplicate licence.
(2) A licensee whose licence is defaced or damaged shall apply
to the Authority for a duplicate licence.
(3) The Authority shall, where an application made under
subsection (1) or (2) meets the requirements of this Act, issue a
duplicate licence in a prescribed manner and form on payment of a
prescribed fee.
Application
17. (1) Subject to section 6, a licensee may apply to the for
Authority for an amendment to a licence to authorise the licensee amendment
to carry on insurance business, of a class not authorised by the of licence
licence in the prescribed manner and form on payment of a
prescribed fee.
(2) The Authority shall, within sixty days of receipt of an
application to amend a licence under subsection (1)—
(a) amend the licence on the terms and conditions that the
Authority may specify in the licence and endorse the
licence; or
(b) refuse to amend the licence.
(3) Subject to subsection (2), the Authority shall within seven
days of its decision, notify the applicant of the Authority’s decision.
18. (1) Subject to section 166, a licensed insurer or reinsurer Accepting
shall not accept insurance business or pay commission or other insurance
business
form of remuneration to a person who is not licensed in accordance from
with this Act. unlicensed
person
(2) A licensed insurer or reinsurer who contravenes subsection
(1) commits an offence and is liable, on conviction, to a fine not
exceeding two hundred thousand penalty units or to imprisonment
for a term not exceeding two years, or to both.
19. (1) A person shall not cause another person to enter into, Entering into
insurance
or to make an application to enter into, an insurance business with contract with
a person who is not licensed in accordance with this Act. unlicensed
person
438 No. 38 of 2021] Insurance
(2) A person who contravenes subsection (1) commits an
offence and is liable, on conviction, to a fine not exceeding two
hundred thousand penalty units or to imprisonment for a term not
exceeding two years, or to both.
Repayment 20. (1) A person holding funds obtained by conducting insurance
of funds business in contravention of this Act shall repay the funds in
accordance with the directions that the Registrar may give.
(2) A person who fails to comply with the directions given
under subsection (1) commits an offence and is liable, on conviction,
to pay the Authority a fine of twenty thousand penalty units for
each day that the failure to comply continues.
(3) Funds repayable under this section which remain unpaid
at the end of the period directed by the Registrar for repayment is
a debt due to the Authority in trust for a person who appears to the
Authority to be lawfully entitled to the funds.
(4) The Authority may institute an action in a court of
competent jurisdiction to recover funds repayable under this section.
(5) Nothing in this section relieves a person from criminal
liability as provided in this Act, or any other written law, as a result
of the person’s contravention of this section.
Insurance 21. (1) A licensed insurance broker shall, where a premium
broker to
transmit on a policy is paid to the licensed insurance broker by a client,
premium within fourteen days or other period that may be agreed, in writing,
between the licensed insurer and the licensed insurance broker,
transmit the premium to the licensed insurer, less any agreed
commission or other charges payable by that licensed insurer to
the licensed insurance broker.
(2) A licensed insurance broker who contravenes subsection
(1) shall, in addition to the outstanding premium payable to the
licensed insurer, be liable to pay interest to the licensed insurer at
the prevailing Bank of Zambia policy rate plus ten percent of that
rate.
(3) Despite subsection (2), a licensed insurance broker who
contravenes this section commits an offence and is liable, to pay to
the Authority an administrative penalty not exceeding ten thousand
penalty units for each day that the offence continues.
Separate 22. (1) A licensed insurance broker shall deposit, in a separate
client
account client account, moneys received by the licensed insurance broker
from or on behalf of a client and shall keep that money separate
from the money belonging to the licensed insurance broker.
Insurance [No. 38 of 2021 439
29. A licensed insurer who receives a proposal for a policy Policies and
payments
shall issue the policy in the Republic and any premium and payment
arising from the policy is payable in the Republic.
30. (1) A policyholder may, despite a provision to the contrary Action
against
in the policy, enforce that policyholder’s rights under the policy insurer and
against a licensed insurer or licensed broker in the court. insurance
broker
(2) Despite subsection (1), where a policy provides that a
question of law arising in an action between the policyholder and
the licensed insurer shall be determined by arbitration, the court
shall give effect to that provision and order that the action be
determined by arbitration in accordance with the Arbitration Act, Act No. 19
2000. of 2000
Protection of 33. (1) The proceeds on realisation of the policy shall, during
proceeds the lifetime of that person and to the extent specified in subsection
during life of
policyholder (2), be protected against a creditor or a claim in connection with an
attachment or bankruptcy, where a life policy taken by a person on
the person’s own life has subsisted for three years or more from
the date of payment of the first premium and the policy—
(a) is attached in execution of a judgment or order of a
court at the instance of a creditor of the person; or
(b) becomes part of the estate in the bankruptcy of that
person.
(2) The protection afforded by this section shall—
(a) subject to paragraph (b), apply if the policy is pledged
to an amount of the proceeds, on realisation of the policy,
that exceed the amount of the liability secured by the
pledge; and
(b) not extend to prescribed amount of the proceeds realised
under this Act.
(3) Money or an asset shall, to the extent specified under
subsection (4), be protected against that creditor or a claim in
connection with the attachment or bankruptcy during the period of
five years from the date the money first became due or payable
under the policy, where money due or payable to a person by a
licensed insurer under a life policy under subsection (1), or asset
acquired or partly acquired with that money—
(a) is attached in execution of a judgment or order of court
at the instance of a creditor of that person; or
(b) becomes part of the estate in bankruptcy of that person.
(4) The protection provided under subsection (3) in respect of
the money or assets of a person under that subsection shall—
(a) subject to paragraph (b), apply in the case of an asset
which is pledged or mortgaged, to an amount of the
proceeds, on realisation of the asset, that exceed the
amount of the liability secured by the pledge or mortgage;
(b) extend to that money, or the proceeds realised from the
assets, insofar as that money or realised proceeds,
together with—
(i) other money due or paid to the person under
subsection (1);
(ii) the value of other existing assets of the person
acquired with the money paid under a life policy
under subsection (1); and
Insurance [No. 38 of 2021 443
PART V
MANAGEMENT AND SHAREHOLDING FOR INSURER,
REINSURER AND INSURANCE BROKER
Shareholding 49. (1) A licensed insurer or reinsurer shall not have less than
thirty percent of the licensed insurer or reinsurer’s subscribed share
capital owned by citizens or a citizen owned company.
(2) A licensed insurance broker shall not have less than fifty-
one percent of the licensed insurance broker’s subscribed share
capital owned by citizens or a citizen owned company.
Insurance [No. 38 of 2021 451
PART VI
FINANCIAL REGULATION OF INSURANCE BUSINESS
61. A licensed insurer carrying on general insurance business Reserves for
shall, in assessing the licensed insurer’s liabilities for purposes of unexpired
risk
annual financial statements, set aside reserves for the unearned
premium to meet liabilities on the unexpired risk at the end of
each financial year, using a method that the Minister may, by
statutory instrument prescribe.
62. A licensed insurer shall make adequate provision in the Reserves for
licensed insurer’s accounts for liabilities in respect of claims outstanding
incurred but not settled at the end of each financial year, including claims
provision for claims not reported but computed as the Minister
may, by statutory instrument, prescribe.
456 No. 38 of 2021] Insurance
73. (1) The board of directors of a licensee shall inform the Notification
where
Registrar, in writing, where the board of directors has reason to capital
believe that the licensed insurer, reinsurer and insurance broker— requirements
unlikely to
(a) may not be able to conduct business as a going concern; be met
PART VII
REINSURANCE
74. A licensed insurer shall, before the beginning of each Reinsurance
financial year, submit to the Registrar particulars relating to the programmes
licensed insurer’s reinsurance programmes for the following year
in the prescribed manner and form.
75. (1) The Registrar may, by notice in writing, direct a licensed Submission
of
insurer to submit to the Registrar, for examination, reinsurance reinsurance
treaties and other contracts of reinsurance entered into by the treaties and
contracts
licensed insurer and furnish the Registrar with certified copies of
documents under section 74.
(2) The Registrar may refuse to approve a reinsurance treaty
or other contract of reinsurance where, on examination of the
contract, the Registrar considers that the terms or conditions of the
contract are not—
(a) favourable to the licensed insurer;
(b) in the interest of the Republic’s economy or insurance
industry; or
(c) in the public interest.
462 No. 38 of 2021] Insurance
PART VIII
MERGERS AND TAKEOVERS OF INSURANCE BUSINESS
79. (1) Despite any other written law, a licensed insurer, Prohibition on
mergers and
reinsurer or insurance broker shall not, without the written approval takeovers
of the Authority—
(a) agree to a merger with another licensed insurer, reinsurer
or insurance broker; or
(b) agree to a takeover or transfer of the whole or part of
the licensed insurer’s, reinsurer or insurance broker’s
insurance business by another licensed insurer, reinsurer
or insurance broker.
(2) An approval of a merger or takeover by the Authority in
accordance with this Part shall not relieve any parties to the merger
or takeover from complying with any other applicable law.
(3) For the purposes of this Act, an arrangement entered into
by two or more licensed insurers, reinsurers or insurance brokers
shall be a scheme for the takeover of the insurance business, except
where the Authority is satisfied that all the policyholders are made
aware of the nature of substitution and has the Authority’s consent
in writing, where—
(a) the liability of a licensed insurer, reinsurer or insurance
broker towards policyholders is to be substituted for
another licensed insurer, reinsurer or insurance broker’s
liability towards the policyholders, whether the liability
of the licensed insurer, reinsurer or insurance broker is
expressed in or created by, existing or new policies; or
(b) the terms of the new policy under paragraph (a), are
the same as, or different from, those of the original
policies.
80. (1) Where it is proposed that the insurance business of a Approval of
merger or
licensed insurer, reinsurer or insurance broker be merged with, or a takeover or
takeover be undertaken by, another licensed insurer, reinsurer or transfer
insurance broker, the licensed insurer, reinsurer or insurance broker
concerned shall, prior to the merger or takeover, apply to the
Authority for approval of the merger or takeover.
(2) An application made under subsection (1) shall be
accompanied by—
464 No. 38 of 2021] Insurance
PART IX
AUDITORS, ACCOUNTS AND RETURNS
87. (1) A licensed insurer, reinsurer or insurance broker shall Appointment
appoint an individual or firm as an external auditor. of external
auditor
(2) An external auditor appointed under subsection (1) shall
be a member of the Zambia Institute of Chartered Accountants,
and meet other conditions that the Authority may determine.
(3) A person that contravenes this section commits an offence
and is liable, on conviction, to a fine not exceeding two hundred
thousand penalty units or to imprisonment for a term not exceeding
two years, or to both.
(4) The Minister may, by statutory instrument, exempt certain
classes of insurance businesses from the requirements of this
section.
88. Where a licensed insurer, reinsurer or insurance broker Appointment
of firm or
appoints a firm or body corporate as external auditor, the firm or body
body corporate shall designate a dealing partner or person who corporate
shall, for purposes of this Act and without limitation of the obligations
and liabilities of other partners, carry out the responsibilities and
obligations as if the partner or person were appointed by the licensed
insurer, reinsurer or insurance broker.
89. An external auditor shall audit the financial statements of Duties of
a licensed insurer, reinsurer or insurance broker and make a report external
auditor
to the shareholders of the licensed insurer, reinsurer or insurance
broker and express an opinion, in accordance with this Act, any
other relevant written law and standards promulgated by the Zambia
Institute of Chartered Accountants on the—
(a) statement of financial position, statement of
comprehensive income,statement of cash flow and other
financial statements required to be submitted by the
licensed insurer, reinsurer or insurance broker in
accordance with this Act; and
(b) compliance of the licensed insurer, reinsurer or insurance
broker with requirements of this Act or any other relevant
written law, with respect to financial statements.
90. (1) An external auditor shall report to the Authority, in the External
prescribed manner and form within fourteen days, where the auditor, auditor’s
duty to
in the course of carrying out the auditor’s duties, under section 89, report
finds that—
468 No. 38 of 2021] Insurance
98. (1) A report made by an external auditor for the purposes External
auditor’s
of this Act shall— report
(a) express whether, in the external auditor’s opinion, the
licensed insurer, reinsurer or insurance broker made
available all information necessary for the external
auditor to comply with the requirements of this Act or
other relevant written law;
(b) state whether, in the external auditor’s opinion, any of
the statements in the annual financial statement—
(i) exhibits a true and fair statement of the licensed
insurer, reinsurer or insurance broker’s financial
condition; and
(ii) requires an explanation or information from the
board, senior officer or agent of the licensed
insurer, reinsurer or insurance broker or receives
a satisfactory response;
(c) state whether in the external auditor’s opinion the
licensed insurer, reinsurer or insurance broker has
complied with this Act and any other relevant written
law; and
(d) state the transactions or conditions that have come to
the attention of the auditor affecting the well-being of
the licensed insurer, reinsurer or insurance broker that,
in the opinion of the external auditor, are not satisfactory
and require rectification including—
(i) a transaction of the licensed insurer, reinsurer
or insurance broker that has come to the
attention of the external auditor and which in
the opinion of the external auditor, has not been
within the powers of the licensed insurer,
reinsurer or insurance broker or which was
contrary to the Act or any other relevant written
law; and
(ii) a non-performing loan that is outstanding, is
restructured or the terms of repayment are
extended, if the principal amount of the loan is
five percent or more of the regulatory capital of
the licensed insurer, reinsurer or insurance
broker.
472 No. 38 of 2021] Insurance
(2) The board of directors shall submit to the Authority a copy
of the report of the external auditor, together with a copy of the
financial statement.
Dismissal of 99. (1) The Authority may cause the dismissal of an external
external
auditor by auditor of a licensed insurer, reinsurer or insurance broker for failure
Authority to perform the auditor’s responsibilities under this Act, or auditing
standards approved by the Zambia Institute of Chartered
Accountants.
(2) Where an external auditor to a licensed insurer, reinsurer
or insurance broker is dismissed, under subsection (1), the licensed
insurer, reinsurer or insurance broker shall appoint another external
auditor, subject to requirements determined by the Authority.
Resignation 100. Where an external auditor of a licensed insurer, reinsurer
of external
auditor or insurance broker resigns, the external auditor shall prepare and
deliver to the Authority, a written statement specifying the reasons
for the resignation, within ten days after submission to the licensed
insurer, reinsurer or insurance broker of the auditors resignation.
Termination 101. (1) Where a licensed insurer, reinsurer or insurance broker
of
appointment terminates the appointment of the external auditor, the licensed
of external insurer, reinsurer or insurance broker shall submit to the Authority
auditor by
insurer, and the external auditor, within ten days of the decision to terminate
reinsurer or the appointment, a written statement setting out reasons for the
insurance
broker termination.
(2) An external auditor may, within ten days of receiving the
statement under subsection (1), submit to the Authority and the
licensed insurer, reinsurer or insurance broker a written statement
responding to the reasons set out by the licensed insurer, reinsurer
or insurance broker.
Audit 102. A licensed insurer, reinsurer or insurance broker shall
committee establish an audit committee and appoint persons that the licensed
insurer, reinsurer or insurance broker considers necessary as
members of the committee.
Financial 103. (1) A licensed insurer, reinsurer or insurance broker shall,
statements
and other within ninety days after the end of each financial year, cause to be
returns prepared the following documents, in accordance with applicable
financial reporting standards and regulations made in accordance
with this Act:
(a) a statement of financial position;
(b) a statement of comprehensive income;
Insurance [No. 38 of 2021 473
106. (1) A licensed insurer or reinsurer shall prepare and furnish Insurer and
reinsurer
to the Registrar a quarterly return in the prescribed manner and quarterly
form. returns
112. (1) The Registrar may, for the purposes of ascertaining Examination
of returns
the accuracy or completeness of a return or report furnished by a and reports
licensed insurer, reinsurer or insurance broker, by notice in writing,
direct the licensed insurer, reinsurer or insurance broker, or the
auditor of the licensed insurer, reinsurer or insurance broker, to—
(a) furnish the Registrar, within a period specified in the
notice, with further information that the Registrar
considers necessary; or
(b) submit to the Registrar, within the period specified in
the notice, documents that the Registrar considers
necessary.
(2) The Registrar may, where a licensed insurer, reinsurer or
insurance broker fails to provide information or submit a document
to the Registrar, within the period specified under subsection (1),
reject the return or report and shall notify the licensed insurer,
reinsurer or insurance broker in writing.
(3) Where the Registrar rejects a return or report, under
subsection (2), the licensed insurer, reinsurer or insurance broker is
considered to have failed to comply with this Act in relation to
submission of returns or reports to the Registrar.
(4) A person commits an offence if that person for the purposes
of subsection (1)—
(a) provides information or a document which the person
knows to be false in a material particular; or
(b) recklessly provides information or a document which is
false in a material particular.
(5) A person convicted of an offence under subsection (4) is
liable to a fine not exceeding one hundred thousand penalty units or
to imprisonment for a term not exceeding one year, or to both.
PART X
INSPECTIONS AND CO-OPERATION
113. The Authority shall establish an inspectorate to administer, Establishment
of
monitor and enforce measures for the effective supervision of the inspectorate
insurance industry.
114. (1) The Authority shall appoint suitably qualified persons Appointment
as inspectors to ensure compliance with this Act. of
inspectors
(2) The Authority shall provide an inspector with an
identification card which shall be evidence of the inspector’s
appointment as inspector.
478 No. 38 of 2021] Insurance
PART XI
SUPERVISORY ACTION
Supervisory 120. (1) The Authority may take supervisory action against a
action by
Authority licensee that—
(a) contravenes this Act, code of practice or market
conduct rules made under this Act or any other relevant
written law;
(b) is carrying on business in a manner that is unsafe and
unsound;
(c) is likely to become insolvent;
(d) fails to comply with a directive given or a regulatory
statement issued by the Authority;
Insurance [No. 38 of 2021 481
132. The Authority may appoint an agent to carry out the Power of
Authority to
functions of the Authority on taking possession of the licensed appoint
insurer, reinsurer or intermediary. agent on
taking
possession
PART XII
INSOLVENCY, DISSOLUTION AND LIQUIDATION OF
INSURER, REINSURER OR INTERMEDIARY
133. The Corporate Insolvency Act, 2017, shall apply where Application
of Corporate
a licensed insurer, reinsurer or intermediary is insolvent, unless the Insolvency
Authority determines that the winding up or dissolution shall proceed Act, 2017
in accordance with this Part. Act No. 9 of
2017
134. (1) Subject to section 133, a licensed insurer, reinsurer or Prohibition
from
intermediary shall not, while insolvent, except where it is necessary conducting
or incidental to the orderly realisation, conservation or preservation business
while
of the assets of the licensed insurer, reinsurer or intermediary, enter insolvent
into or continue to conduct business which— Act No. 9 of
2017
(a) the insurer, reinsurer or intermediary is licensed to carry
on; or
(b) is ancillary to the business which the licensed insurer,
reinsurer or intermediary is licensed to carry on.
(2) A shareholder, director, senior officer or other employee
of a licensed insurer, reinsurer or intermediary commits an offence
if that shareholder, director, senior officer or other employee knows
or, in the proper performance of duties, could reasonably be
expected to know of the insolvency of the licensed insurer, reinsurer
or intermediary and causes or permits an act in contravention of
this section.
(3) A person convicted of an offence under subsection (2) is
liable to a fine not exceeding five hundred thousand penalty units,
or to imprisonment for a term not exceeding five years, or to both.
135. Where a licensed insurer, reinsurer or intermediary Power of
becomes insolvent, the Authority may— Authority
on
insolvency
(a) take possession of the licensed insurer, reinsurer or of insurer,
intermediary in accordance with this Act; or reinsurer or
intermediary
(b) order compulsory winding up or dissolution of the licensed
insurer, reinsurer or intermediary in accordance with
section 142.
488 No. 38 of 2021] Insurance
Approval of 136. (1) A licensed insurer, reinsurer or intermediary shall not,
voluntary
winding-up except with the written approval of the Authority, pass a resolution
or
dissolution for voluntary winding-up or dissolution in accordance with the
Act No. 10 Companies Act, 2017, the Corporate Insolvency Act, 2017 or any
of 2017 other written law.
Act No. 9 of
2017 (2) A licensed insurer, reinsurer or intermediary seeking
approval for voluntary winding-up or dissolution shall submit to the
Registrar an audited declaration of solvency by the directors of the
licensed insurer, reinsurer or intermediary, accompanied by a
statement of affairs of the licensed insurer, reinsurer or intermediary
showing the—
(a) assets and total amount expected to be realised from
those assets;
(b) liabilities; and
(c) estimated expenses of the winding-up, made up to the
latest practicable date before the intention to wind-up
was arrived at.
(3) The Authority may, by notice in writing, grant a licensed
insurer, reinsurer or intermediary the Authority’s approval to
voluntarily wind up or dissolve the licensed insurer, reinsurer or
intermediary business if the Authority is satisfied that the licensed
insurer, reinsurer or intermediary is solvent and has sufficient liquid
assets to repay in full and without delay, in the case of—
(a) the licensed insurer or reinsurer, its policyholders and
other creditors; and
(b) the licensed intermediary, the creditors of the licensed
intermediary.
(4) Where a licensed insurer, reinsurer or intermediary passes
a resolution for voluntary winding-up or dissolution, the licensed
insurer, reinsurer or intermediary shall record the date, hour and
minute of the passing of the resolution.
(5) A director, senior officer or other employee of a licensed
insurer, reinsurer or intermediary who, in relation to subsection (2),
makes a false declaration, or causes or permits a false declaration
to be made, commits an offence and is liable, on conviction, to a
fine not exceeding two hundred thousand penalty units or to
imprisonment for a term not exceeding two years, or to both.
Insurance [No. 38 of 2021 489
Rights of 139. (1) An approval by the Authority for the voluntary winding
policyholders, up or dissolution of a licensed insurer, reinsurer or intermediary
creditors
and other under this Part shall not prejudice the right of—
persons
(a) a policyholder or creditor of the licensed insurer to the
payment in full of a claim;
(b) a creditor of the licensed intermediary to the payment
in full of a claim; or
(c) an owner of funds or other property held by the licensed
insurer, reinsurer or intermediary to the return of those
funds or property.
(2) A lawful claim against a licensed insurer, reinsurer or
intermediary shall be paid promptly by the licensed insurer, reinsurer
or intermediary and all funds and other property held by the licensed
insurer, reinsurer or intermediary shall be returned to the rightful
owners within a period that the Authority may direct in writing.
(3) Without prejudice to the generality of subsection (2), a long
term licensed insurer or general licensed insurer shall, in the
distribution of assets other than those identified with a statutory
fund for purposes of a voluntary winding up or dissolution, ensure
that the holders of policies issued by the licensed long term insurer
or general licensed insurer have preference to all other unsecured
creditors.
Cancellation 140. (1) The Authority shall, where the Authority is satisfied
of licence on that a licensed insurer, reinsurer or intermediary has discharged its
voluntary
winding up obligations specified in this Act cancel the licensed insurer, reinsurer
or intermediary licence.
(2) A licensed insurer, reinsurer or an intermediary whose
licence is cancelled under subsection (1) shall distribute the
remainder of the licensed insurer, reinsurer or intermediary assets
among the shareholders of the licensed insurer, reinsurer or
Act No. 9 intermediary in accordance with the Corporate Insolvency Act,
of 2017 2017.
(3) A distribution of a licensed insurer’s, reinsurer’s or
intermediary’s assets, under subsection (2), shall not be made
unless—
(a) in the case of—
(i) a licensed insurer, all lawful claims of
policyholders and other creditors of the licensed
insurer are paid; or
Insurance [No. 38 of 2021 491
(4) Where the amount available for payment for any class of
claims under subsection (1) is insufficient to provide full payment,
the amount shall abate in equal proportions.
(5) For the purposes of this section, subsection (1) constitutes
a separate class of claims and the claims under subsection (2)
constitute another separate class of claims.
148. Any undistributed funds remaining after final distribution, Undistributed
under this Act, shall be taken into possession and held by the funds
Authority and subsequently dealt with in accordance with this Act.
149. Any asset remaining after all claims are paid in a Final
distribution
compulsory winding up or dissolution of a licensed insurer, reinsurer in
or intermediary shall be distributed among the shareholders. compulsory
winding up or
dissolution
150. The Authority shall take into its possession any unclaimed Unclaimed
funds
funds remaining after the final distribution of the assets of a licensed
insurer, reinsurer or intermediary in accordance with the Corporate Act No. 9 of
2017
Insolvency Act, 2017, and those funds shall form part of the
Insurance Fidelity Fund and be administered as if they were part of
the Insurance Fidelity Fund.
151. A person, other than the Authority, shall not where the Restriction
on action by
Authority takes possession of a licensed insurer, reinsurer or third party
intermediary, under this Part, commence proceedings for the winding
up or dissolution of the licensed insurer, reinsurer or intermediary,
except where the proceedings are commenced by a licensed insurer,
reinsurer or intermediary.
152. (1) Where an application is made to the court for an order Other
for the winding up of a licensed insurer, reinsurer or intermediary person’s
applications
by a person other than the Authority, the court shall not consider to court for
the application unless the court is satisfied that a copy of the winding up
application is served on the Registrar.
(2) The Authority is entitled to file documents in court in relation
to an application under subsection (1).
153. Any necessary and reasonable expenses incurred by the Recovery of
Authority in the application of this Act is defrayed from the funds expenses
of the licensed insurer, reinsurer or intermediary concerned.
154. Nothing in this Part is taken to impute liability, or place an Immunity of
obligation, on the Authority to meet a claim by a policyholder or Authority
against
creditor of a licensed insurer, reinsurer or intermediary that has claims
been wound up or dissolved.
155. The Authority may appoint an agent to carry out the functions Power of
of the Authority under this Part. Authority to
appoint agent
496 No. 38 of 2021] Insurance
PART XIII
COMPLAINTS
Initiation of 156. (1) The Authority may investigate a complaint—
investigation
(a) on the Authority’s own initiative; or
(b) on receipt of a complaint made by a complainant—
(i) acting in the complainant’s own interest;
(ii) that is an association acting in the interest of its
members;
(iii) who is a person acting on behalf of a
complainant;
(iv) who is a person acting on behalf, and in the
interest, of a group or class of persons; or
(v) who is making a complaint anonymously.
(2) A complaint, made as provided in subsection (1) shall be in
the prescribed manner and form.
(3) Subsection (2) shall not apply to a complaint made by a
person specified in subsection (1)(b)(v).
Refusal to 157. (1) The Authority may refuse to investigate a complaint
investigate
or or, having commenced an investigation, discontinue the investigation
discontinue if the—
complaint
(a) complaint is frivolous, vexatious or not made in good
faith;
(b) complainant does not have sufficient interest in the action
complained of, except that this paragraph shall not apply
to a complaint made by a person specified in section
156(1)(b)(v);
(c) complainant has a right of appeal, review or remedy
that has not been exhausted;
(d) conduct or involvement to which the complaint relates
is or has been the subject of an investigation or other
action by any other appropriate authority under any other
law; or
(e) complaint has been withdrawn.
(2) The Authority shall not investigate a complaint unless the
complaint is made within a period of one year from the date on
which the complainant exhausted the complainant’s rights as
prescribed.
Insurance [No. 38 of 2021 497
PART XIV
INSURANCE TRIBUNAL
Right to 163. (1) A person who is aggrieved by a decision of the
appeal
Authority may, within thirty days of receipt of the decision of the
Authority, notify the Minister, in the prescribed manner and form,
of the intention to appeal against the decision.
(2) Lodgment of an appeal under this Part does not stay the
effect of the Registrar’s decision against which the appeal is made.
Appointment 164. (1) The Minister shall, within thirty days after receipt of
and
convening of a notice made under section 163, appoint and convene an ad hoc
appeals
tribunal appeals tribunal consisting of a chairperson who is an advocate of
the High Court of not less than ten years standing and two other
persons having qualifications and experience in insurance, securities,
commerce, finance, accounting or any other specialised field relating
to the matter which is the subject of the appeal.
(2) The Tribunal shall have jurisdiction to hear and determine—
(a) appeals from decision of the Authority or a person
exercising the functions or powers of the Authority;
Insurance [No. 38 of 2021 499
(b) proceedings relating to conduct in the insurance market;
and
(c) other matters as may be specified in, or prescribed in
terms of this Act or any other written law.
(3) A person aggrieved with a decision of the Tribunal may
appeal to the Court of Appeal.
165. The Chief Justice shall prescribe rules of procedure for Tribunal
an ad hoc tribunal convened under this Act. Rules
PART XV
GENERAL PROVISIONS
166. (1) Subject to subsection (2), assets, liabilities and interests Insurance to
be placed
situated in the Republic shall be insured with an insurer licensed within
under this Act. Republic
Administrative 177. (1) An administrative penalty imposed under this Act shall
penalty be paid to the Authority within the period specified by the Registrar.
(2) The Registrar may, where a person fails to pay an
administrative penalty within the period specified in subsection (1),
by way of civil action in a court, recover the amount of the
administrative penalty from that person as an amount due and owing
to the Authority.
Immunity of 178. An action or other proceeding shall not lie or be instituted
officer, agent
or employee against an officer, agent or employee of the Authority in respect of
of Authority any act done or omitted to be done by that officer, agent or employee
in good faith in the exercise or performance, of any powers,
functions or duties conferred by or under this Act.
Regulations 179. (1) The Minister may, on the recommendation of the
Board, by statutory instrument make Regulations for carrying out
or giving effect to this Act.
(2) Despite the generality of subsection (1), the Regulations
made under subsection (1) provide for—
(a) the forms for applications required for the purposes of
this Act, and the fees to be paid in respect of that
application;
(b) standards and conduct for licensees;
(c) prescribing or prohibiting business practices or methods;
(d) imposition of licence fees to be paid by licensees;
(e) types of licences that the Authority may issue;
(f) prohibiting unsafe and unsound practices by licensees;
(g) the Registrar’s exercise of powers to request information
from—
(i) former and current shareholders, directors, senior
officers or other employees of a licensee; or—
(ii) a former licensee;
(h) guidelines setting out criteria for the assessment of a fit
and proper person to be a shareholder, director or senior
officer;
(i) prescribing a period within which a licensee shall
commence the business to which the licence relates;
(j) the procedure to be followed where a licensee is the
subject of possession under this Act;
Insurance [No. 38 of 2021 503
(k) prescribing requirements for the conduct of the business
of insurance to ensure customers are treated fairly, both
before and after a contract is entered into upto the point
where obligations under a contract are discharged;
(l) formulating capital adequacy requirements for licensees;
(m) formulating licensing, supervision, procedures and
standards for the conduct of medical scheme fund
management businesses;
(n) formulating procedures for hearing persons required to
appear before the Authority;
(o) categories of insurance businesses;
(p) anti-money laundering and countering terrorism and
proliferation, financing or any other associated serious
offence relating to money laundering countering of
terrorism and proliferation financing by licensed insurer,
reinsurer and intermediary;
(q) requirements for supervision, regulation and conduct of
micro- insurance business
(r) any savings or transitional provisions the Authority
considers necessary or convenient to be made after the
commencement of this Act; and
(s) the effective administration and implementation of this
Act.
180. (1) The Insurance Act, 1997, is repealed. Repeal of
Act No. 27
of 1997
(2) Despite subsection (1), a licence issued in accordance with
the repealed Act shall on the commencement of this Act continue
to exist for the unexpired period as if issued in accordance with this
Act.
(3) Despite subsection (1) the—
(a) Committee, established in accordance with section 106 of
the repealed Act is continued in existence as if
established in accordance with this Act; and
(b) Insurance Fidelity Fund established in accordance with
section 109 of the repealed Act, 1997, is continued in
existence as if established in accordance with this Act.
(4) The Schedule applies to the Committee and the Insurance
Fidelity Fund.
504 No. 38 of 2021] Insurance
SCHEDULE
(Section 180(4))
PART II
INSURANCE FIDELITY FUND
Constitution 10. The Insurance Fidelity Fund shall consist of—
of Insurance
Fidelity (a) moneys paid to the Authority by way of annual or other
Fund
periodic licence fees charged in accordance with this
Act;
(b) moneys recovered by, or on behalf of the Authority by
exercise of a right of action conferred by this Act; and
(c) all other moneys accruing to the Fund.
Purpose of 11. (1) The Insurance Fidelity Fund is held and applied on terms
Fund and conditions that the Minister may, on the recommendation of
the Board, by statutory instrument determine, for the purposes of
compensating persons who suffer pecuniary loss occasioned by a
licensed insurer or insurance broker.
(2) The Board may invest amounts constituting the credit of
the Fund, which are not immediately required for purposes of the
Fund, in securities or in any manner authorised by law for investment
of trust funds.
(3) Despite subsection (1), the Fund shall apply to individuals
and the micro small and medium enterprises as prescribed.
Disbursements 12. There is paid out of the Insurance Fidelity Fund as and
from
Insurance when required and in an order that the Board considers
Fidelity appropriate—
Fund
(a) the amount of claims, including costs,allowed by the
Board;
(b) legal and other expenses incurred in—
(i) investigating or defending claims;
(ii) relation to the Fund; or
(iii) the exercise of the rights, powers and authority
vested in the Board by this Act in relation to the
Fund;
Insurance [No. 38 of 2021 507
(c) premiums payable in respect of insurance or indemnity
entered into by the Board;
(d) expenses incurred or involved in the administration of
the Fund; and
(e) any other moneys lawfully payable out of the Fund in
accordance with this Act or regulations made in
accordance with this Act.
13. The Minister may, on the recommendation of the Board, Management
of the
make Regulations prescribing matters and things that are necessary Insurance
or expedient to be prescribed with respect to the administration, Fidelity
Fund
management and application of the Insurance Fidelity Fund.
14. The payment out of the Insurance Fidelity Fund is limited, Limit of the
payments
in respect of a licensed insurer, reinsurer or insurance broker in under the
default, to amounts that the Minister may, by statutory instrument, Insurance
Fidelity
prescribe. Fund