Legislative changes in Ghana to attract investment

Ghana’s corporate legal environment is primarily regulated by the Companies Act 2019, which established a Registrar of Companies (RoC) separate from the Registrar General’s Department (RGD). The RGD was responsible for business registration under previous iterations of the act, but the legislation shifts its responsibility to improving service delivery and delisting firms from the register, while tasking the RoC with new registrations.

Incorporation

By law, one or more persons may establish a business as a company limited by shares, a company limited by guarantee, an unlimited company or an external company. Specific suffixes are mandated for business names depending on the type of business to be incorporated, such as Ltd or limited company for private firms limited by shares; and Plc or public limited company for public entities limited by shares. The Companies Act 2019 has an ownership tracking provision that identifies beneficial owners’ personal information and position, and the nature of the interest – including details of the arrangements leading to the beneficial ownership. Disclosure on political exposure is required of all members and beneficial owners.

Winding Up & Restructuring

The RGD is responsible for regulating and winding up corporates. The Corporate Insolvency and Restructuring Act 2020 provides a regime for the restructuring of distressed companies that allows for continued operation. Among other things, it places a temporary freeze on the rights of creditors and other claimants against a distressed company. The act also outlines the procedure for winding up companies, complementing the options available under the Companies Act 2019 for companies in distress. The modes of winding up include a special resolution, a petition addressed to the registrar, a petition to the High Court, a conversion from private liquidation and a conversion from administration or restructuring.

Labour & Immigration

Labour relations are governed by the Constitution of 1992 and the Labour Act 2003, the latter of which stipulates a framework to regulate the activities of workers and employers, both in the public and private sectors – except security agencies. The primary terms for a contract of employment and the rights and obligations of parties are provided in the Labour Act 2003.

Moreover, industry-specific legislation such as the Factories, Offices and Shops Act 1970; the Workmen’s Compensation Act 1987; the Common Law; and collective agreements govern conditions of service in employment. Generally it is the responsibility of an employer to ensure that every employee works under satisfactory, safe and healthy conditions.

Transfer-pricing regulations (TPRs) require that transactions conducted between individuals or entities in controlled relationships be done at arm’s length. The TPRs also cover transactions between an employer and an employee. Termination: A contract of employment may generally be terminated by either party at any time. A contract of employment for three or more years may be terminated with a month’s notice or a month’s pay in lieu of notice. Where the contract of employment is fewer than three years, a two weeks’ notice or two weeks’ pay in lieu of notice is required. A weekly contract requires a notice period of seven days.

The legislation provides safeguards against unfair termination. Termination may be deemed unfair where the reason involves joining or ceasing to join a trade union, participating in legal proceedings against the employer or discrimination. Additionally, a worker’s termination would be deemed unfair if it is a result of ill treatment or in a situation where the employer has refused to take action despite several complaints of sexual harassment.

Before termination, the employer must pay the worker all accrued remuneration and benefits. For a foreign employee, in addition to paying all payments owed, the employer must pay all expenses necessary for the repatriation of the worker and their family. Employment of expatriates: The Ghana Immigration Service (GIS) serves as the principal agency for all immigration services, including visa entry, residence permits and the employment of foreigners. Foreigners must register their businesses and apply for a work permit from the Ministry of Interior through the GIS. Economic Community of West African States citizens do not require a visa to enter Ghana; however, they require work and residence permits to work and live in the country. Work permits are granted only for specified periods, positions and employers. Companies with foreign ownership must register with the Ghana Investment Promotion Centre (GIPC) and apply for automatic immigrant quotas based on their equity investment. Pensions: The National Pensions Regulatory Authority, established by the National Pensions Act 2008, oversees registered pension schemes and trustees of registered programmes. The legislation mandates that employers make contributions for their employees, including expatriates. Exemption from contributions is available for expatriates on a shortterm contract who can prove they make similar contributions in their home countries.

There are three tiers for pension plans. The first is a mandatory basic plan managed by the Social Security and National Insurance Trust; the second is mandated and privately managed; and the third is a voluntary, privately managed personal pension. Employers are required to contribute a total of 18.5% of base pay to the social security system, with 13% coming from the employer and 5.5% from the employee for both Tier-1 and Tier-2 schemes. Expatriates are guaranteed recovery of their contributions once they demonstrate that they are emigrating permanently from Ghana. Liability and professional indemnity insurance: A business owner in charge of office space, factories and other places of work is required by law to maintain insurance under any qualifying public liability insurance contract with a licensed insurer covering the company against accidental injury or death, as well as accidental loss or damage to a third party’s property that may occur on the premises. An employer of professionals must obtain and maintain an insurance under any qualifying professional indemnity insurance contract with a licensed insurer covering damages, legal costs and any other expenses related to a claim.

Investment

The Ministry of Trade and Industry is responsible for formulating and implementing policies for promoting, growing and developing domestic and foreign trade ties and industrial development. It performs its functions in partnership with several agencies and state enterprises.

GIPC: GIPC is a government agency established to create an enhanced, transparent and responsive environment for the promotion, coordination and facilitation of investment. The legislation that created the body established minimum capital requirements for investments with foreign participation. Joint ventures (JVs) must have a capitalisation of $200,000, with a Ghanaian national holding a minimum of 10% equity. Wholly foreign-owned companies must have a capitalisation of $500,000 or its equivalent in capital goods. Foreign-owned trading enterprises require $1m in capital, with at least 20 skilled Ghanaian employees on staff.

Foreign investors are not permitted to engage in the following businesses:

• The production of exercise books and other basic stationery;

• The sale of goods or the provision of services in a market, petty trading, or hawking or selling goods in a stall at any place;

• The operation of taxi and car rental services with a fleet of fewer than 25 vehicles;

• The operation of a beauty salon or a barber shop;

• The printing of rechargeable scratch-off cards for use by subscribers of telecommunications services; and

• The retail of finished pharmaceutical products. Foreign investors are permitted to repatriate their capital, profits and dividends from activities in Ghana, and are protected against expropriation. GIPC reviews and registers technology transfer agreements, which are signed by two entities when a foreign firm transfers its technology, expertise or facilities to an entity in Ghana. Free zones: The Ghana Free Zones Authority (GFZA) executes the Ghana Free Zones Programme, which is designed to promote the processing and manufacturing of goods by establishing export processing centres. It also facilitates commercial and service activities at sea- and airports of entry. Investors who operate in free zones enjoy generous incentives. These include a 100% exemption from the payment of direct and indirect duties and levies on all imports; a 100% exemption from payment of income tax on profits for 10 years, with the figure not to exceed 8% thereafter; total exemption from the payment of withholding taxes from dividends from free zone investments; and relief from double taxation for foreign investors and employees. Investors are permitted to operate foreign currency accounts with banks in Ghana.

It is mandated that 70% of all the goods and services produced each year by free zone enterprises must be exported, while the remaining 30% of products are authorised for sale on the local market. Free zone investments are guaranteed against nationalisation and expropriation. Small-scale enterprises: The Ghana Enterprises Agency promotes and supports micro-, small and medium-sized enterprises (MSMEs), and facilitates their access to financial and non-financial resources – including credit facilities. The MSME fund managed by the agency provides funding for smaller businesses at competitive rates.

Taxation

The Ghana Revenue Authority (GRA) is responsible for tax administration. Persons liable to pay tax or conduct official business must apply for a taxpayer identification number (TIN). In April 2021 the Ghana Card PIN replaced the TIN issued by the GRA to individual taxpayers. However, business entities and legal persons are still required to apply for TINs. Tax is imposed either directly or indirectly.

Direct taxes are charged on the income and property of both residents and non-residents. The income of individuals is taxed on a pay-as-you-earn basis. Employers must deduct and withhold tax from an employee’s taxable income for remission to the GRA. Corporate tax rates differ according to industry, location and type of business. Companies are generally taxed at a rate of 25%; however, companies that are engaged in mining or upstream petroleum operations are taxed at a rate of 35%.

Ghana has double-tax treaties with France, Germany, the UK, South Africa, Italy, Belgium, the Netherlands, Switzerland, Denmark, Singapore, Mauritius, the Czech Republic, Ireland, Morocco and Malta. This relieves citizens from the aforementioned countries from paying double taxation on income from Ghana.

Indirect taxes such as value-added tax (VAT), the National Health Insurance Levy (NHIL), the Ghana Education Trust Fund Levy (GETFL) and the Covid-19 Health Recovery Levy (CHRL) are charged on goods and services in a taxable supply when purchases are made by a taxable person. Except for supplies considered to be zero-rated or subject to a flat rate of 3% – for wholesalers and retailers of goods, for example – the standard rates are 12.5% for VAT, 2.5% for the NHIL and the GETFL, and 1% for the CHRL.

Excise duties generally range from 0% to 175% of the ex-factory price, and apply to products including alcoholic and non-alcoholic beverages. Excise tax stamps are to be affixed to specific excisable goods manufactured in or imported into the country.

Tax Exemptions

Retirement contributions received by a retirement fund, the income of young entrepreneurs, private universities, registered manufacturers and assemblers of certain automotives enjoy specific tax exemptions, subject to terms and conditions. Moreover, there are special import duty exemptions for specified privileged persons, organisations and institutions – for example, diplomatic missions – and persons engaged in specific industries such as mining, oil and gas.

The Parliament is expected to consider tax exemption-related legislation by the end of 2021. If passed, the bill will rationalise the current exemption regime by varying – where necessary – and consolidating existing statutory provisions. It will also provide general and special tax incentives for businesses.

Cybersecurity

Ghana ratified the African Union Convention on Cybersecurity and Personal Data Protection – also known as the Malabo Convention – and the Convention on Cybercrime – commonly referred to as the Budapest Convention – in 2018 and 2019, respectively. It also enacted the Cybersecurity Act 2020, putting it in the position to prevent, manage and respond to cybersecurity threats and incidents. The act established national and sectoral computer emergency response teams to promptly report cybersecurity incidents, as well as an early warning system to detect risks.

The government has implemented several initiatives to improve cybersecurity through the Ministry of Communications. These include the revision of Ghana’s National Cybersecurity Policy and Strategy, the launch of the National Cybersecurity Centre, the Safer Digital Ghana campaign, and the Cybercrime and Cybersecurity Incident Reporting Points of Contact, which will facilitate the reporting of cybercrime and cybersecurity incidents.

Transparency

To support compliance with global money laundering standards, Ghana implemented the Anti-Money Laundering Act 2020. The legislation consolidates laws related to the prohibition of money laundering and established the Financial Intelligence Centre. The centre is mandated to identify the proceeds of any unlawful activity and assist in combatting money laundering; the financing of terrorism and the proliferation of weapons of mass destruction; tax evasion; and other illicit activity.

In July 2021 Ghana was removed from the “grey list” published by international watchdog Financial Action Task Force’s International Cooperation Review Group (ICRG) after successfully completing a 2019-21 action plan developed in partnership with the ICRG to bolster Ghana’s anti-money laundering and counter-terrorism financing (AML/CFT) framework. The country will continue to work with the ICRG to further improve its AML/CFT strategy.

The Judiciary

Justice is accessible to all under Ghana’s Constitution. The court system is the traditional avenue for justice and comprises superior courts such as the High Court, the Court of Appeals and the Supreme Court; and the lower courts, namely the circuit, district and juvenile courts. Court Regulations 2020 enhanced access to justice by increasing the monetary value jurisdiction of personal claims filed at the lower courts to GHS500,000 ($85,500) at the district level and GHS2m ($342,000) in the circuit courts.

An amendment of Order 58 of the High Court (Civil Procedure) Rules 2004 – which regulates claims at the High Court Commercial Division, a specialised court for the settlement of commercial disputes – expanded the scope of commercial claims that can be filed and encourages the amicable settlement of disputes by mandating court-appointed alternative dispute resolution activities. Towards that end, the Alternative Dispute Resolution Act 2010 provides for non-traditional dispute resolutions such as mediation and arbitration. Additionally, Ghana’s justice systems allows contracting parties the freedom of choice of law and thus promotes party autonomy.

Mining

All minerals present within Ghanaian territory are vested in the president on behalf of the state, with the minister of lands and natural resources acting as an agent to negotiate, grant, revoke, suspend and renew mineral rights in accordance with the law. The Minerals Commission is the government agency responsible for administering, regulating and managing mineral resources, and developing and coordinating policies. Mineral rights: Three types of leases are granted to those looking to extract minerals under the Minerals and Mining Act 2006: reconnaissance, prospecting and mining leases. These can only be held by licensed individuals. In addition to small-scale mining licences given to individual Ghanaians, only a body incorporated under the Companies Act 2019 or the Private Partnerships Act 2020 can hold mineral rights.

Reconnaissance licences are issued for preliminary examination of the area. Prospecting licences are issued to applicants who intend to search for minerals and include the use of excavation and drilling to determine the extent and economic value of a mineral deposit. A mining lease is then granted when a person seeks to mine natural resources. Qualified individuals must apply to the Minerals Commission to be granted a licence. A person with mining rights has the right to assign the right with the prior approval of the Ministry of Lands and Natural Resources.

Electricity Supply

There is equity participation in the electricity supply industry. Under the Energy Commission (Local Content and Local Participation, and Electricity Supply) Regulations 2017 there is a target of at least 51% local equity participation over a period of 10 years. Currently domestic equity participation is pegged at 15% and cannot be transferred to a non-Ghanaian.

Renewables

The Renewable Energy Act 2011 and the Energy Commission (Local Content and Local Participation, and Electricity Supply) Regulations 2017 aim to promote local capacity in the manufacture of energy equipment and increase competitiveness among local producers of renewable energy equipment. Domestic minimum equity participation by Ghanaian companies manufacturing renewable energy equipment is pegged at 40%. A Ghanaian citizen is also restricted from transferring more than 60% of shares in an entity established to produce renewable energy equipment to a non-citizen.

A tax incentive is available to companies that wish to establish a facility in Ghana to manufacture or assemble specified renewable energy equipment – including solar cells, inverters and windmills – subject to the incentives proscribed under the Ghana Investment Promotion Centre Act.

Petroleum

The Petroleum (Local Content and Participation) Regulations 2013 prioritises Ghanaian employment in the petroleum industry and gives local companies preference in granting an agreement or a licence concerning petroleum activities, subject to the fulfilment of conditions specified in the regulations. Entities carrying out petroleum activities are also required to comply with local content rules. A Ghanaian company – not including the Ghana National Petroleum Corporation (GNPC) – must meet a threshold of at least 5% equity participation to qualify to enter into a petroleum agreement or obtain a petroleum licence. However, in the event that a Ghanaian company is not able to meet the threshold, the Ministry of Energy may alter the minimum equity participation.

The interest of a local company under a petroleum agreement or licence is not transferable to a non-Ghanaian company. A foreign company seeking to provide goods or services to a contractor, a subcontractor, licensee, the GNPC or other parties must enter into a JV with an Ghanaian company that is holding a minimum of 10% equity in the venture. Downstream regulations: The National Petroleum Authority regulates the downstream industry and grants licences and permits to service providers. A licence may only be granted to a citizen of Ghana or a body incorporated in the country. A foreign entity must enter into a JV with a citizen or a Ghanaian company in order to qualify for a licence.

Banking & Insurance

The Banks and Specialised Deposit-Taking Institutions Act 2016 regulates Ghana’s banking sector and mandates the Bank of Ghana (BoG), the country’s central bank, to supervise and regulate all deposit-taking businesses. The BoG issues licences to banks and specialised deposit-taking institutions (SDIs), approves requests to open representative branches of foreign banks and registers financial holding companies.

An individual or corporate institution seeking to engage in deposit-taking in Ghana must be incorporated in the country or receive prior written approval from the BoG, and applications must be made in writing to the central bank. The minimum capital required for financial institutions is GHS400m ($68.4m). Any individual or corporation may acquire an interest in a bank, whether national or foreign. However, in order to acquire as little as a 5% equity stake in a bank or appoint key management personnel, consent of the central bank is required.

The BoG may require a bank, SDI or financial holding company to maintain additional capital requirements determined by the central bank to address the concentration of risks in the institution or the financial system. The central bank prescribes sound corporate governance standards critical to the proper functioning of the banking sector and the economy as a whole through the BoG Corporate Governance Directive 2018. Non-Bank Financial Institutions Act 2008: legislation regulates the operations of non-bank financial institutions (NBFIs) such as money lenders, money transfer services, mortgage finance providers, non-deposit-taking microfinance services and credit union operations. The BoG issues licences to NBFIs incorporated in Ghana who meet the minimum capital requirement of GHS15m ($2.6m). There is an additional requirement for foreign ownership, that at least 60% of the entity’s capital be transferred to Ghana in convertible currency. All licensing conditions should be confirmed at the time of application. Payment Systems and Services Act 2019: The Payment Systems and Services Act 2019 consolidates the laws relating to payment systems, regulates institutions that offer payment and electronic money services, and provides for related matters. It applies to banks, SDIs, dedicated electronic money users, payment service providers (PSPs), and a bank’s affiliates and agents. The legislation gives the BoG oversight and supervisory powers over electronic money issuers and PSPs. A corporation seeking to operate as a PSP must apply for a payment system licence. An institution regulated under the Banks and Specialised Deposit-Taking Institution Act 2008 must seek authorisation from the BoG before engaging in payment service business. A PSP must have a minimum of 30% equity participation held by a Ghanaian and must satisfy minimum capital requirements of between GHS800,000 ($137,000) and GHS20m ($3.4m), dependent on the type of PSP. Borrowers and Lenders Act 2020: The Borrowers and Lenders Act 2020 re-establishes the Collateral Registry, provides a regulatory framework for registering and enforcing security interests related to collateral, establishes an order of priority of security interests and provides for credit agreements that regulate transactions. Under the terms of the legislation, a security interest is created by a transaction that secures payment or performance of an obligation without regard to the form of transaction, in which a borrower or a third party that has a title to the collateral willingly creates a security interest that is in favour of the lender.

The Collateral Registry operates under the BoG and serves to register and maintain security interests with a searchable platform, including electronic registration. A lender who has a security interested created in their favour must register the security interest with the Collateral Registry within 28 days after creating the security interest. Registration of a security interest affords the lender priority over other security interests, subject to the order of registration. A security interest cannot be enforced until it is stamped per the Stamp Duty Act 2005. A security interest registered with the Collateral Registry can be realised without a court order. Insurance Act 2021: The Insurance Act 2021 lishes the National Insurance Commission (NIC) to regulate and supervise the insurance market, and introduces innovation insurance to support persons interested in technological innovation within the sector. There is an obligation that a licensed insurer or reinsurer must carry out business activity with integrity, optimum skill, due diligence and care. The NIC’s minimum capital requirement for insurance firms effective January 2022 is GHS50m ($8550), while that for insurers is GHS125m ($21.4m), GHS40m ($6.8m) for insurance intermediaries and GHS500,000 ($85,500) for insurance brokers. Development Finance Institutions Act 2020: The Development Finance Institutions Act 2020 provides for the legal framework for development finance institutions (DFIs). Development finance is defined by the legislation as the provision of short-, medium- and long-term funding; guarantees; and other credit enhancement structures to key sectors of the economy in a financially sustainable manner.

The BoG is responsible for regulating and supervising DFIs, issuing licences and approving representative offices of foreign DFIs. A DFI must be registered in Ghana and satisfy minimum capital requirements in order to be granted a licence E-CEDI: In addition to legislation, there are several initiatives under way to support the development of the banking and insurance sectors. One of these is the creation of the digital cedi, or e-Cedi. In line with the Digital Ghana Agenda aimed at facilitating widespread digitalisation, the digital currency aims to complement and serve as a digital alternative to physical bank notes. This will help Ghana meet its goal of going “cash-lite”.

The e-Cedi aims to promote diverse digital payments; create an enhanced payment infrastructure; and facilitate payments for those without a bank account, contract or smartphone.

Immovable Property

The Land Act 2020 and the Real Estate Agency Act 2020 are key laws governing land administration. There are six types of permits issued for landholding: an allodial title, customary law freehold, common law freehold, an usufructuary interest, leasehold interest and customary tenancy. A foreigner or foreign company can only acquire a leasehold interest in land. This cannot be granted for a term exceeding 50 years at any one time. As such, non-Ghanaians cannot be granted a freehold interest, and any agreement that purports to grant a freehold interest to a non-Ghanaian is void.

The restrictions on non-citizens cannot be altered by marrying or entering into a partnership with a citizen of Ghana. A corporate body is not regarded as local if non-citizens hold more than 40% of the equity shareholding or ownership.

The Land Act 2020 allows for the automatic renewal of a leasehold interest in certain circumstances. Under the act an indigene of a particular locality or a citizen of Ghana who acquires a lease of bare land from a person who holds allodial or usufructuary interest in land is entitled to automatic renewal for the same period as the term in the original lease. However, this automatic renewal right does not extend to a non-Ghanaian unless stated in the leasehold agreement.

Any instrument or agreement affecting land – including a conveyancing agreement, vesting assent and power of attorney – can be registered as public notice and conclusive evidence of the owner’s title, in addition to priority over other conflicting claims. It is prudent for a person acquiring an interest or right in land to conduct a search at the Lands Commission to ascertain the rightful titleholders of the property.

The Lands Commission was established to support and facilitate electronic methods of transferring, creating and registering land titles. As a way of managing land disputes, any dispute affecting the right or interest in land shall not be taken to court unless the procedures under the Alternative Dispute Resolution Act 2010 have been exhausted.

Real State

The Real Estate Agency Act 2020 provides the regulatory framework for the sector, and created the Real Estate Council to oversee agency practices and provide related services. Agents and brokers who engage in commercial transactions such as the sale, purchase, rental and leasing of real estate must be licensed by the Real Estate Council.

Lawyers licensed by the General Legal Council to practise in Ghana; valuers or surveyors registered with the Ghana Institute of Surveyors; and non-residents of Ghana licensed in their country of residence as real estate agents or brokers can acquire a licence from the Real Estate Council without an examination. All other persons must pass a qualifying exam conducted by the council or an independent testing service designated by the council.

The licence is not transferable. A company may designate one of its licensed officers or partners as an agent or broker as a representative.

In line with the Anti-Money Laundering Act, enacted in 2020, payments for real estate transactions must be made by bank deposit, cheque, or bank or electronic money transfer.

Outlook

Ghana maintains a strong legislative framework that regulates key sectors, while at the same time creating an investor-friendly climate in which an investor is assured of clarity, guidance and security of investment. These factors reinforce Ghana’s reputation as a sound choice for investment and the gateway for trade with the continent.