Interim JFJ board has full authority
Barry Wade, Guest Columnist
In an editorial titled 'Tell us more, Dr Wade' on August 1, 2014, The Gleaner asked me, as the newly appointed chairperson of the interim board of directors of Jamaicans for Justice (JFJ), to explain "the process by which [I] and the rest of the board were chosen, including whether those members of the board who were in place up to Wednesday resigned en bloc, paving the way for new elections".
It also stated: "It would be useful, in the circumstance, to explain if, and how, the JFJ's constitution addresses this, especially in the context of his announcement of a planned vote for a new board in three months' time after 'a nomination process and election of the paying members' of the organisation."
The following sets out the process by which the current directors of the board came to their positions and the relevant clauses in JFJ's Articles of Association governing this process.
JFJ was incorporated under the Companies Act on 15 October 1999. The Companies Act and, more specifically, its Articles of Association are the relevant governance instruments. The relevant Articles of Association are Clauses 31, 45, 48 and 49.
Clause 31 provides that the minimum number of directors shall be seven, unless otherwise determined by a general meeting of the company.
Clause 45 provides that the directors may appoint any person to be a director, either to fill a casual vacancy or as an additional director. A director appointed under this provision holds office until the next annual general meeting and he or she shall be eligible for re-election.
The quorum for directors meetings is fixed by the directors but shall, if not fixed by the directors, be three. (Clause 48).
During the course of the weeks and days leading up to the extraordinary general meeting (EGM) held on July 29, which had been called by the board at the request of members, the number of directors fell below the minimum number of three. The resignations did not take place en bloc, but rather at different points in time, all prior to the date of the EGM. Clause 49 of the Articles was invoked.
Clause 49 provides:
"The continuing directors may act notwithstanding any vacancy in their body, but, if and so long as their number is reduced below the number fixed by or pursuant to the articles of the company the necessary quorum of directors, the continuing directors or director may act for the purpose of increasing the number of directors to that number, or of summoning a general meeting of the company but for no other purpose."
In circumstances where the members of the organisation were determined to repair the damage done by recent internal and external developments and adverse publicity, and following lengthy discussions of these developments, the two remaining board members asked the members assembled at the EGM to indicate whom of their number were prepared to serve on an interim board.
The purpose was to ensure a democratic input into the decisions that only the remaining two board members could exercise under Clause 49 of JFJ's Articles of Association. The members present at the EGM indicated their preferences. The EGM was suspended and the board deliberated and made the appointments recommended by the members present at the EGM. The eight additional directors appointed brought the number of directors up to 10, above the minimum seven required for the full functioning of the board.
The board is an interim one because the provisions of Clause 45 limit the tenure of all of the members appointed by the remaining two directors till the next annual general meeting of JFJ.
The board will consider the steps to be taken over the next three months to (a) review the recent developments, (b) steady the organisation, and (c) arrange for the holding of an annual general meeting in view of the provisions of Clause 45 of the Articles of Association.
The current board is properly constituted under JFJ's Articles of Association, with the full authority to conduct the business of the organisation until the next annual general meeting, which in the normal course of events would be held in March or April next year.
However, it was the view of the membership at the EGM and the decision of the current board that it would be prudent to hold an AGM at the earliest possible date to allow for the election of a new board of directors.