Ghana updates its legal framework for public-private partnerships

One way in which Ghana is looking to accelerate investment projects and private sector initiatives is through an enhancement of the pubic-private partnership (PPP) framework, which enables the state to minimise capital costs and shift development risk and managerial responsibility out of its hand. The country has recently signalled its intention to harness investor capital for development purposes across a wide economic spectrum, which will encompass large-scale infrastructure projects such as hospitals, schools, roads and telecoms systems. In December 2017 Ken Ofori-Atta, minister of finance, revealed that Ghana needed approximately $10m annually to upgrade its infrastructure. Consequently, the government plans to turn to the PPP model as a useful source of funding. The intention is to create an enabling environment to attract investors – a project that is to be pursued with the support of development partners such as the World Bank. According to government feasibility studies, the large-scale projects currently in the pipeline have the potential to attract between $6bn and $15bn of investment to the country.

Long History

PPPs have a long history in Ghana, with the development of the Akosombo Dam being the first notable project in the 1960s, when then-President Kwame Nkrumah looked to the private sector to augment limited state funds for construction of the largest economic project in the country at the time, involving an eventual investment of over £230m. While this approach was a relatively rare occurrence in the first decades following Ghana’s independence in 1957, the nation’s pivot towards a liberalised economy following the rollout of the 1983 Economic Recovery Programme saw an increase in private sector participation in development projects, which have generally been carried out as a joint venture, cooperation model. Examples of this include projects developed under the affordable housing policy, such the Appolonia City Housing Project in Accra, which began development in November 2017 and is expected to add 2000 homes upon completion. Another PPP framework successfully deployed in the country is the concession model, which was used in the development of accommodation under the Social Security and National Insurance Trust on some Ghanaian university campuses. In some cases, PPP activity has taken the form of outsourcing of government processes. For example in 2010 the Ghana Revenue Authority struck a deal with Subah Infosolutions, a telecoms and IT solutions provider based in Accra, to carry out real-time monitoring of telcoms’ billing systems on its behalf.

Legal Guidelines

Despite the long history, it was not until 2011 that a framework clearly establishing guidelines for carrying out private collaborations was put in place when the Ministry of Finance rolled out a national policy on PPP, acknowledging that the nation’s infrastructure needs could not be met by the state’s limited budget resources. The objective of the new policy was to “leverage public assets and funds with private sector resources from local and international markets” in order to accelerate the development of infrastructure and services.

A wide spectrum of PPP models was identified for future deployment, including the outsourcing of routine government operations as well as the full-scale design, building, operation, maintenance and financing of large-scale projects. Given the breadth of its definitions, the ministry felt the need to identify two key characteristics of PPP projects: that they not be simple privatisation processes and that they should include a transfer of risk to the private sector.

While the ministry’s 2011 policy document was not as comprehensive as a full-fledged PPP law, it provided both the government and the private sector with a useful template for the development of such projects. It identified the key institutions involved in future PPP development, which included the Ministry of Finance’s Project and Financial Analysis Unit, the National Development Planning Commission, the Public Procurement Authority and the Ministry of Trade and Industry. It also outlined the roles and responsibilities of the different parties and established guiding principles in developing PPPs, such the ability of the model to give greater value for money than what would be possible for a public sector project, efficient risk allocation, provisions for local content and the transfer of technology, the establishment of clear objectives and output requirements, transparency, and environmental and social safeguards.

New Momentum

The Ministry of Finance’s promotion of the PPP model in late 2017 came at a time of renewed interest in the concept. PPP transactions have been gathering momentum since 2016, and by 2018 a total of nine PPP projects were under preparation in Ghana, according to the World Bank, with a combined value of around $3.4bn. The most advanced of them were the Takoradi Port Dry Bulk Terminal initiative and the new Securities and Exchange Commission (SEC) building project, which were respectively in the pre-procurement and procurement phases as of early 2019.

Takoradi is Ghana’s primary dry bulk port, but its limited facilities are a bottleneck to shipping operations. A new dry bulk terminal – which is planned to facilitate the export of manganese, bauxite and alumina, and the import of clinker and coal – will be run by a single operator under a traditional landlord PPP concession, while a series of separate agreements will determine key items such as volume guarantees from the clients to the operator, tariffs caps and strict performance criteria from the operator to its clients.

The SEC building, meanwhile, will allow the regulator of Ghana’s capital markets to develop new office accommodation for itself in Accra’s Cantonments area. Private investment was turned to after the Ministry of Finance was unable to fund the direct purchase of a new building for the SEC, which consequently is deploying a PPP scheme where construction, operations and maintenance, and revenue risk is completely transferred to the private sector. The private party will receive revenue from the operations of the building and gain profit by charging tenants rent and incidental costs for the use of the facility, which includes a retail floor.

Challenges

A recently completed $30m project, carried out by a partnership between the World Bank and the Ministry of Finance, has identified a range of shortcomings that could hinder the future growth of activity. The project, concluded in June 2018, was aimed at improving the legislative, institutional, financial, fiduciary and technical framework of Ghana’s PPP environment. Evaluation of key performance indicators in terms of meeting these objectives resulted in a rating of “unsatisfactory”, citing multiple challenges to the PPP model, including a tendency to call for expressions of interest in projects before the relevant due diligence is carried out and a failure to resolve key issues until after a private partner is appointed. Another point of concern was the cancellation of a competitive tender for a recent such project and its replacement by a solesourced concession agreement, which was deemed problematic in terms of transparency and public value.

The question of value is an important one: research carried out for the European Parliament in 2014 showed that poorly constructed PPP deals are sometimes the most expensive way for governments to invest in infrastructure, at times costing twice as much than if the investment had been financed with bank loans or bonds. The risk of a disadvantageous PPP being costly for state funds is especially great where the government guarantees payments for the use of a facility or a service, according to the Jubilee Debt Campaign, a UK-based coalition advocating for relief of unfair debt in developing countries.

An answer to these challenges may come in the form of long-awaited legislation aimed at updating and streamlining the process for establishing partnerships. A PPP bill was submitted to the Cabinet in 2014, but was returned for re-drafting due to the Cabinet’s concerns regarding the amount of approval processes and preparation time required for prospective projects. The revised bill was still being reviewed by parliamentary committees in 2016, when the general elections of that year saw it sidelined once again.

More revisions of the bill took place in order to align the legislation with the vision of the newly elected government, and in 2017 it was put before the new Cabinet. More revisions followed, this time with input from the Office of the Attorney General, and by February 2018 the bill was before the Cabinet again. At the close of that year, the final form of the PPP law was still undecided. Remaining concerns, according to the World Bank, include the length of the PPP project cycle, whether PPPs could instead be delivered through existing legislation, and the guarantee of local content. The passage of the new law, should it transpire later in 2019, will be observed with great interest by the investment community, both domestically and abroad. Until then, the less comprehensive provisions of the 2011 national policy on PPPs will continue to guide the government as it works in concert with the private sector to develop the country’s infrastructure.