I’ve spent years helping clients navigate the murky waters of corporate law across Africa. Burkina Faso is one of those jurisdictions where the legal framework looks pristine on paper but the enforcement reality tells a different story. Today I’m breaking down the rules on misuse of corporate assets—a criminal offense that exists in theory but rarely bites in practice.
Unless you’re careless.
What Exactly Is Misuse of Corporate Assets?
Burkina Faso operates under the OHADA legal framework. That’s the Organization for the Harmonization of Business Law in Africa—a treaty system covering 17 francophone and lusophone countries. Article 891 of the OHADA Uniform Act on Commercial Companies and Economic Interest Groups (AUSCGIE) is the provision you need to understand.
Here’s what it says: If you’re a company manager and you use corporate property or credit in bad faith for personal purposes that go against the company’s interest, you’ve committed a crime. Period.
The key elements are three:
- Use of corporate assets or credit (money, property, guarantees)
- Bad faith (you knew what you were doing was wrong)
- Personal purposes contrary to the company’s interest
Notice what’s missing? It doesn’t matter if you’re the sole shareholder. The company is legally distinct from you.
The Sole Shareholder Trap
Here’s where most people get confused. You own 100% of your Burkinabé company. You think: “It’s my money, right? I can do what I want.”
Wrong.
Under OHADA law, the company has its own legal personality. The “social interest” of the company is independent of your personal interest as a shareholder. This isn’t some theoretical distinction—it’s baked into the criminal code. If you withdraw funds for a yacht when the company needs working capital, you’re technically committing a criminal offense even if you’re the only owner.
Now, does anyone actually get prosecuted for this when the company is solvent and there are no angry creditors or tax authorities sniffing around? Almost never. But “almost never” is not the same as “never.”
When Does This Actually Become a Problem?
Prosecution is rare. I’ll be honest about that. But it happens in specific scenarios:
Scenario 1: Company insolvency. Your company goes bankrupt. Creditors can’t get paid. A liquidator starts digging through the books and finds you’ve been treating the corporate account like your personal piggy bank. Suddenly Article 891 matters a lot. The liquidator or creditors can file a complaint, and prosecutors may actually follow through.
Scenario 2: Tax authority attention. Burkina Faso’s Direction Générale des Impôts isn’t the most sophisticated tax authority in the world, but they’re not asleep either. If they audit your company and discover systematic personal withdrawals disguised as business expenses, they can refer the matter for criminal prosecution. They have every incentive to do so if they believe you’ve been evading corporate or personal income tax.
Scenario 3: Minority shareholder disputes. Less relevant if you’re a sole shareholder, obviously. But if you have any partners—even small ones—and the relationship sours, they have standing to file a complaint under Article 891. I’ve seen business divorces get ugly fast when someone pulls the misuse-of-assets card.
Scenario 4: Political or reputational targeting. Let’s be cynical for a moment. Burkina Faso has experienced political instability. If you become inconvenient to someone with power, a dormant criminal statute is a convenient weapon. Selective enforcement is a real risk in any jurisdiction without rock-solid rule of law.
What Counts as “Misuse”?
The OHADA jurisprudence across member states gives us some guidance. These are acts that courts have found to constitute misuse:
- Paying personal expenses (vacations, family cars, private school tuition) from company funds without proper compensation structure
- Making loans to yourself or family members on non-commercial terms
- Using company credit to guarantee personal debts
- Diverting business opportunities to another company you own without fair compensation
- Making charitable or political donations that serve your reputation but not the company’s commercial interest
The “bad faith” element is crucial. If you can show a legitimate business purpose—even a stretched one—you’re in better shape. Took your spouse on a business trip? Better have meeting notes. Bought a luxury car for “client meetings”? Hope you kept a mileage log.
The Penalties
Article 891 isn’t a slap on the wrist. Criminal liability means potential prison time and fines. The OHADA Uniform Act provides for imprisonment from one month to two years and fines determined by national legislation.
But here’s the real penalty: personal liability for company debts. If a court finds you guilty of misuse of corporate assets, judges can pierce the corporate veil and hold you personally responsible for company obligations. Your limited liability protection evaporates. That’s the nightmare scenario for any entrepreneur.
How to Stay Safe
I’m pragmatic. I don’t expect you to treat your wholly-owned company like a distant third party. But I do expect you to maintain plausible deniability. Here’s how:
1. Formalize everything. Pay yourself a proper salary through payroll. Document it. Pay the social charges. If you need additional funds, declare dividends through proper corporate resolutions. Yes, it’s paperwork. Yes, it protects you.
2. Keep separate bank accounts. Never, ever commingle personal and business funds. This is basic asset protection, but you’d be shocked how many people ignore it. If your corporate account shows charges for groceries and Netflix, you’re creating evidence against yourself.
3. Document business purpose. Every significant withdrawal should have a paper trail showing business justification. Invoices, contracts, meeting notes, expense reports. Boring, yes. Protective, absolutely.
4. Maintain corporate formalities. Hold annual general meetings. Keep minutes. File required reports. The more you treat the company as a separate entity, the harder it is to argue you viewed it as a personal cash box.
5. Keep the company solvent. Most prosecution risk comes from insolvency. If the company can always pay its bills and its taxes, the chances of anyone complaining drop dramatically. Don’t hollow out the company through excessive withdrawals.
The Practical Reality
Let me be clear: the risk of prosecution in a solvent, single-shareholder company in Burkina Faso is low. The courts are backlogged. Resources are limited. Prosecutors have bigger fish to fry.
But low risk is not zero risk.
And the consequences—if you’re the unlucky one—are severe. Criminal record. Personal liability. Potential prison time. Asset seizure.
The smart move is to structure your affairs cleanly from the start. It costs almost nothing in terms of time and compliance burden. Pay yourself properly. Keep records. Treat the corporate form with respect.
Think of it as insurance. You’re probably never going to need it. But if the day comes when a creditor, tax auditor, or disgruntled ex-partner starts digging through your books, you’ll be very glad you maintained clean separation between personal and corporate finances.
Burkina Faso’s legal framework on misuse of corporate assets isn’t unique—it mirrors OHADA standards across West and Central Africa. If you’re operating in multiple OHADA jurisdictions (Senegal, Côte d’Ivoire, Mali, Benin, etc.), the same principles apply. One clean compliance structure protects you everywhere.
The states will always have tools to come after you if they want to. Your job is not to hand them ammunition.