By the book: Rules and regulations for companies

The Republic of Ghana has a constitutional government under a multi-party democracy. Ghana operates a unitary republic based on a constitution which was approved by referendum in 1992. The president of Ghana is elected by universal suffrage and serves a maximum of two four-year terms. Members of Ghana’s parliament, on the other hand, are at liberty to run for office without any term limits.

Ghana has a robust democratic political system that has consistently conducted peaceful elections over the past two decades. In 2008 Ghana held its fifth consecutive democratic election under the Fourth Republic. The next democratic election is expected to take place in December 2012.

The benign political environment is expected to continue in the medium to long term as support from the international community and civil society ensures that the risks of political unrest are reduced.

THE LEGAL SYSTEM: Although Ghana adheres to the English common law tradition, the 1992 constitution sets out the fundamental legal framework. The constitution establishes an independent judiciary, an autonomous legislature and an executive branch of government.

The judiciary provides a structure of courts in two broad divisions: the superior courts (the Supreme, Appeal and High Courts) and the lower courts (the Circuit and District Courts).

The legislature, on the other hand, is made up of a single chamber of elected members who enact legislation for the governance of the entire country. There are also significant numbers of subsidiary legislation enacted in the form of regulations, notices and orders by relevant entities.

JUDICIAL ENVIRONMENT: The Ghanaian court structure comprises, in descending order, the following:

• Supreme Court;

• Appeal Court;

• High Court (fast track, commercial, land, human rights, labour and the financial crimes divisions);

• Circuit Court; and

• District Court. There are also a number of administrative and quasi-judicial institutions including the National Labour Commission (NLC), the National Media Commission (NMC), and the Commission on Human Rights and Administrative Justice (CHRAJ).

The NLC functions as a facilitator and adjudicatory authority on labour issues and disputes, whereas CHRAJ deals with the investigation of violations of fundamental human rights and freedoms, injustice and corruption, abuse of power and unfair treatment of persons by public officers, as well as other related matters. The NMC is an independent institution created under the 1992 constitution and entrusted with the responsibility of regulating the media industry without governmental interference.

A judgment award obtained from a foreign country can be enforced in Ghana against a Ghanaian resident only where there is an agreement for the reciprocal enforcement of judgment awards between Ghana and the country from which the judgment was obtained. Ghana has reciprocity arrangements with the following countries:

• Brazil

• France

• Israel

• Italy

• Japan

• Lebanon

• Senegal

• Spain

• UAE

• UK In every other case, foreign judgments awards are enforced by way of a retrial or re-hearing and the judgment award may only serve as evidence of the liability of the other party.

Arbitral awards are enforceable under the Alternative Dispute Resolution Act 2010 (Act 798, ADR) if:

• The award is made by a competent court under the laws of the country in which the award was made;

• The award was made under the New York Convention;

• A reciprocal arrangement exists between Ghana and the country where the award was made;

• The party that seeks to enforce the award has produced an original of the award or a copy of the award authenticated in the manner prescribed by the law of the country where it was made; and

• There is no appeal pending against the award in any court under the law applicable to the arbitration.

FORMS OF BUSINESS: The Ghanaian legal regime provides for the following business forms and vehicles:

• Unincorporated businesses/sole proprietorships;

• Incorporated partnerships;

• State-owned limited liability companies;

• Company limited by shares;

• Unlimited companies (There is no limit on the liability of the members. The few unlimited companies that exist are mostly law firms and other professional organisations that may be prevented from operating as limited liability companies by professional rules.); and

• External companies (incorporated bodies formed outside Ghana that seek to operate in Ghana register as external companies if they establish a place of business in Ghana). Ghanaian law also provides for the formation of companies limited by guarantee (the liability of shareholders for the debts of the company is limited to amounts that they respectively undertake or guarantee to contribute to the assets of the company in case of liquidation). A company limited by guarantee can be incorporated exclusively for non-profit activities.

Under the Companies Act, companies may be either public or private companies. Private companies are those whose regulations: (a) Restrict the right to transfer its shares; (b) Limit the total number of its members and debenture holders to 50, not including current and former employees who continue to be members or debenture holders of the company; (b) Prohibit the company from making an invitation to the public to acquire shares or debentures of the company; and (d) Prohibit the company from making an invitation to the public to deposit money for fixed periods or payable at call, whether bearing or not bearing interest. All other companies are public companies.

INVESTMENT CLIMATE: Successive governments in Ghana have implemented a policy of liberalising the economy and the regime for investments to encourage foreign direct investment. The consistent government policy of promoting foreign direct investment influenced the enactment of the Ghana Investment Promotion Centre Act, 1994 (Act 478), the Free Zone Act, 1995 (Act 504), and the Foreign Exchange Act, 2006 (Act 723), among others.

The Ghana Investment Promotion Centre: The Ghana Investment Promotion Centre is a corporate body set up under the Ghana Investment Promotion Centre Act, 1994 (Act 478, the GIPC Act) to encourage and promote investment into the Ghanaian economy. Under the GIPC Act, non-Ghanaians may invest and participate in the operation of enterprises in Ghana.

In the case of a joint venture with a Ghanaian, the non-Ghanaian must invest, by way of equity participation, foreign capital of at least $10,000 or its equivalent in capital goods. The GIPC Act does not prescribe a minimum percentage of Ghanaian ownership in a joint venture enterprise but the GIPC in practice requires a minimum of a 5-10% Ghanaian shareholding.

Where the enterprise is to be wholly owned by a foreigner, there must be an investment, by way of equity capital, of foreign capital of at least $50,000 or its equivalent in capital goods.

In the case of a trading enterprise involved in purchasing and selling goods owned either wholly or partly by a non-Ghanaian, there must be investment, by way of equity capital, of foreign capital of at least $300,000 and the enterprise must additionally employ at least 10 Ghanaians.

The above minimum capital requirements do not apply to portfolio investments or enterprises established exclusively for export trading. Incentives granted under the GIPC Act include:

• An immigration quota limited to the amount of the paid-up capital of the company;

• Personal remittances of wages through authorised dealer banks;

• Free transferability of dividends and profits;

• Guarantees against expropriation. Similar to the provisions in the Article 20 of the 1992 constitution, expropriation is allowed only in the national interest and must be accompanied by fair and adequate compensation; and

• Other special incentives that may be negotiated with the GIPC to promote certain identified industries. The GIPC Act, however, does not apply to petroleum and mining entities. These sectors of the economy are respectively regulated by the Petroleum (Exploration and Production) Act, 1984 (PNDCL 84) and the Minerals and Mining Act, 2006 (Act 703).

The Ghana Free Zone Authority: The Free Zone Authority was established under the Free Zone Act, 1995 (Act 504, the FZA) among other things, to license entities seeking to operate as free zone enterprises and to assist such applicants in obtaining other relevant permits and licences to operate in Ghana. Under the FZA, the following benefits accrue to investors:

• Investment guarantees;

• Unconditional transfer of profits;

• Guarantees against expropriation;

• Amicable dispute settlement procedures;

• The non-application of import and export laws to the importation and exportation of goods and services other than consumer goods for commercial purposes;

• The exemption from direct and indirect taxes and duties on imports into a free zone or single-factory zone. This is, however, subject to parliamentary approval; and

• Subject to parliamentary approval, free exemption from the payment of income tax on profits for the first 10 years from the date of commencement of operation.

Petroleum exploration & production: Since the discovery of oil in commercial quantities, the country has attracted a lot of attention in the international sphere. It is worth noting that Ghana has had laws in respect to petroleum and related matters since the 1980s. There is the Petroleum Exploration and Production Act (Petroleum Act), which has been in force since 1984 and the Petroleum Income Tax Act (Act 188, Petroleum Tax Act) of 1987.

The current discoveries have, however, engendered the need for more progressive legislation to deal with the ever-present dangers of conflict arising from the discovery of such a resource in Africa. The Ghanaian legislature has responded with the following statutes:

• The Ghana National Petroleum Authority Act, 2005 (Act 691): the authority is to regulate, oversee and monitor activities in the petroleum downstream industry; to establish a Unified Petroleum Price Fund; and to provide for related matters;

• The Petroleum Exploration and Production Bill: this bill, when passed into law, seeks to replace the 1984 Petroleum Act. This bill has been withdrawn from parliament for further consultation with industry stakeholders;

• The Petroleum Commission Act, 2011 (Act 821): this act establishes the Petroleum Commission as a corporate body with perpetual succession to regulate and manage the utilisation of petroleum resources in Ghana and to coordinate the policies in relation to them; and

• The Petroleum Revenue Management Act, 2011 (Act 815): this act regulates the collection, allocation and management by government of petroleum revenue in a transparent, accountable and a sustainable manner. Under the Petroleum Act, contracts can be entered into between the government of Ghana, the Ghana National Petroleum Corporation (GNPC) and a contracting entity for the exploration, development and production of petroleum products. A person, other than the GNPC, shall not engage in the exploration, development or production of petroleum except in accordance with the terms of a petroleum agreement entered into between that person, the republic, and the GNPC or any other authority designated under the Petroleum Act.

The Petroleum Act gives the GNPC the option to acquire an interest in a petroleum operation upon the declaration of a commercial discovery upon terms set out in the petroleum agreement. Under the Ghanaian petroleum regime, rights under a petroleum agreement cannot be assigned without the consent of the minister. Under the Petroleum Act, the following benefits accrue:

• The Petroleum Agreement may specify taxes applicable to the petroleum enterprise; otherwise the general taxes apply;

• A contractor shall be permitted to export from the republic petroleum to which the contractor is entitled to export under the terms of a petroleum agreement; and

• The Petroleum Agreement is valid for a total of 30 years. Given the broad scope of petroleum operations and their impact on the economy, key institutions involved in the regulation of the petroleum industry include:

• The GNPC;

• The Ghana Navy;

• The Environmental Protection Agency;

• The Ministry of Finance and Economic Planning;

• The Ghana Revenue Authority;

• The Fisheries Commission; and

• The Ghana Maritime Authority. The Petroleum Revenue Management Act, 2011 (Act 815, Petroleum Revenue Management Act) establishes the Petroleum Holding Fund. This fund serves as a collection account for all direct and indirect revenues accruing or deriving from the petroleum industry in Ghana. The sources include taxes, levies, royalties and dividends from petroleum operations, both upstream and downstream.

Article 12 of the GNPC Model Petroleum Agreement requires a petroleum contractor to actively engage the GNPC in efforts to improve the skill set of Ghanaians in the industry and ensure the transfer of management and technical skills.

The Ministry of Energy has developed the Local Content and Local Participation in Petroleum Activities Policy (Local Content Policy) for use within the petroleum industry. Under the policy, all regulatory authorities, contractors and other entities involved in projects or transactions in Ghana’s oil and gas industry are required to set up and execute an annual local content plan with a view to increasing Ghanaian participation in petroleum operations.

Non-Ghanaian enterprises are required to make provision for at least 5% participation by Ghanaian citizens. Furthermore, operators in the petroleum industry must, as far as practicable, use goods and services produced or provided in Ghana in their operations. This includes granting winning bids to companies with greater Ghanaian participation in situations where the bids are equal. The Local Content Policy also requires that, to the degree possible, Ghanaians are employed in the petroleum sector. To this end, petroleum operators are to submit, for approval by the relevant regulators, an annual recruitment and training programme of citizens of Ghana. The policy also encourages the participation of women in the oil and petroleum industry.

Minerals & mining: All transactions relating to the exploitation of mineral resources are regulated by the Minerals and Mining Act, 2006 (Act 703, Minerals and Mining Act). Under the Minerals and Mining Act, the minister is responsible for granting mineral rights on behalf of the president and on the recommendation of the Minerals Commission. Any transaction, contract or undertaking involving the grant of a right or concession must, however, be ratified by parliament. Mineral rights once granted cannot be transferred, assigned, mortgaged or otherwise encumbered or dealt in, either in whole or in part, without the prior approval in writing of the minister.

The Minerals and Mining Act provides for a 10% carried interest for the government in mineral rights ( reconnaissance, prospecting or mining). The government of Ghana is not precluded from further participation in mining operations, provided this is agreeable between the parties.

The holder of a mineral right may be granted the following incentives:

• Exemption from payment of Customs import duty in respect to plant, machinery, equipment and accessories imported specifically and exclusively for the mineral operations;

• Exemption of staff from the payment of income tax on furnished accommodation at the mine site;

• Immigration quota in respect of the approved number of expatriate personnel; and

• Personal remittance quota for expatriate personnel free from tax imposed by an enactment regulating the transfer of money out of the country. The holder of a mineral right in the conduct of mineral operations, and in the purchase, construction and installation of facilities, is required to give preference to materials, products and services made and offered in Ghana by Ghanaian citizens, companies, partnerships and public corporations.

The Minerals Commission Act, 1994 (Act 450) establishes the Minerals Commission as a corporate body to regulate and manage the utilisation of minerals and coordination of policies related to them.

Among its mandates are advising the minister on matters related to minerals, formulating the recommendations regarding national policy for exploration and exploitation of mineral resources, and monitoring the operations of the bodies or establishments with responsibility for minerals.

Under the Minerals and Mining (General) Regulations, 2012 (LI 2173, Minerals and Mining Instrument), further regulation of the mining sector has been put in place to promote the procurement of local products and the employment and training of Ghanaians. This instrument covers the export, sale and disposal of minerals, provisions concerning mineral rights, reconnaissance operations, prospecting operations, mining operations, small-scale mining operations, and miscellaneous provisions such as power of attorney, delivery of notices and orders, and interpretation of regulations.

The Minerals and Mining Licensing Regulations, 2012 (LI 2176) provides regulations for the process of applying for and obtaining licences for various mining activities, extensions or renewals of licences, amendments or termination of leases, and granting mining leases.

Tourism: Under the Ghana Investment Promotion Centre (Promotion of Tourism) Instrument, 2005 (LI 1817, Promotion of Tourism Instrument), enterprises engaged in licensed tourism establishments, e.g. hotels, motels, resorts, guesthouses, holiday apartments, catering establishments, travel and tours, conference and conventions, recreation and entertainment, have been declared special priority areas and qualify for the following benefits and incentives in addition to existing incentives under the GIPC Act:

• Exemption from Customs, import duties and value - added tax on appliances, furniture and fittings in preapproved quantities to be used in establishing the project;

• Tax exemption in respect of pre-approved quantities of knocked-down parts, components and spare parts in respect of such equipment, machinery, appliances, furniture and fittings; and

• Payment of corporate tax has been exempted for specified periods e.g. 10-year tax holiday for two-, three-, four-, and five-star hotels or resorts located outside Accra or regional capitals. The Tourism Act of 2011 established the Ghana Tourism Authority as a corporate body with the mandate to promote the sustainable development of the tourism industry internationally and within the country. The authority functions to essentially implement and ensure compliance with the regulations the act.

Further, the authority performs, among other duties, the following: grants licences for the tourism industry, regulates and supervises tourism enterprises; regulates and monitors the activities of licensees; initiates, conducts, promotes and encourages studies for the growth and development of the tourism industry; oversees the administration of the Tourism Development Fund; ensures collaboration with other public, private and international agencies; ensures the management and development of appropriate designs for tourist sites; investigates and takes measures to eliminate illegal, dishonourable, unsound and improper activities in relation to any activity regulated under this act; advises the minister on policy issues on matters related to the tourism industry;

The Tourism Development Fund was set up to provide funding for tourism and tourism-related projects and programmes, specifically marketing and promotion of tourism, capacity building, market research, development and promotion of entrepreneurial activities, tourism education and training.

The banking & financial system: The banking sector is the largest contributor to Ghana’s overall financial sector. Commercial banking in the country dates back over a century to 1894, when the Bank of British West Africa (now known as Standard Chartered Bank Ghana) was established.

It was followed by Barclays Bank in 1917 and in 1952 by the Bank of Gold Coast, now Ghana Commercial Bank. After independence in 1957, the government established various commercial and development banks to meet the country’s financing needs.

With the assistance of the World Bank, the government in the late 1980s launched the Financial Sector Adjustment Programme (FINSAP) to reform legislation and the banking supervisory system, allow the entry of new banks and financial institutions into the Ghanaian market, and develop the money and capital markets. These efforts led to the establishment of new private banks and the entry of other international banks into the Ghanaian banking industry.

The Bank of Ghana (BoG) is the key regulator of the banking and financial system in Ghana and performs its supervisory and regulatory functions under the following statutes:

• The BoG Act 2002 (Act 612);

• The Companies Code 1963 (Act 179), which governs the operations of all companies in Ghana;

• The Banking Act as amended by the Banking (Amendment) Act 2007, Act (Act 738, Banking Act;

• The Borrowers and Lenders Act, 2008 (Act 773, Borrowers and Lenders Act);

• The Foreign Exchange Act, 2006 (Act 723, Foreign Exchange Act) which regulates foreign exchange business and provides for related matters; and

• The Credit Reporting Act 2006 (Act 723), revised as the Credit Reporting Act 2007 (Act 726, Credit Reporting Act) under which credit reference bureaux are to operate. The BoG regulates and licenses institutions undertaking banking operations and as part of its regular activities, examines the operations of banks at least once a year to ensure compliance with statutory requirements such as capital adequacy, solvency, asset quality and sound management practices. The central bank, from time to time, issues directives to regulate the industry. These typically cover: minimum capital requirements; minimum capital adequacy ratios to ensure compliance with international best practices; and primary reserve ratios.

The central bank’s additional roles include the following:

• Issuance of legal tender currency;

• Management of the country’s external reserves;

• Monetary policy; and

• Banker and financial adviser to the government. The international banking community adopted the Basel II Accord in 2006. Although it was expected to immediately cover only internationally active banks, the convergence of global financial standards required regulators to conform with Basel II which:

• Provides banks and supervisors multiple options to calculate minimum capital requirements;

• Systematically, accounts for credit risk for various assets; and

• Introduces a capital requirement for operational risks. Consequently, the BoG spearheaded the passing of the Banking Act to replace the Banking Law, 1989 ( PNDCL 225) in 2004 to strengthen the independence of the BoG , introduce greater transparency in the regulatory framework and strengthen banking supervision. The Banking Act therefore:

• Spells out the criteria for granting or withdrawing banking licences;

• Empowers the BoG to suspend the operations of a bank for persistent failure to comply with standards, subject, to an appeal to the minister of finance;

• Increases the capital adequacy requirement for banks from 6% to 10%;

• Empowers the BoG to vary or review the capital adequacy requirement for banks;

• Empowers the BoG to facilitate mergers of distressed banks with healthy banks;

• Strengthens the BoG's power to enforce its decisions;

• Empowers the BoG to intervene in the appointment of directors of banks to ensure that only persons of honesty, integrity and competence are appointed; and

• Authorises the BoG to review or reject any proposals to transfer significant ownership or controlling interest in existing banks to other parties. In 2008 the central bank by Notice No.BG/Gov/SEC/2008/3 issued new minimum capital requirements for obtaining a Class 1 banking licence (universal banking). Under the new requirements, the minimum capital for universal banks has been set at GHS60m ($35.57m). This new requirement came into effect on December 31, 2009.

For new banks entering the market, this would be a condition for the issuance of an operating licence. Existing banks were required to raise their capital to GHS25m ($14.82m) by 2010 and achieve the minimum capital of GHS60m ($35.57m) by 2012.

The key highlights in the development of the financial sectors have been the enactment of the Borrowers and Lenders Act, the Credit Reporting Act and the Foreign Exchange Act.

The following measures were decided on by the bank to restore stability and transparency in the foreign exchange market, and are designed to take effect from May 1, 2012:

• The reintroduction of BoG Bills;

• Revision in the application of the statutory reserve requirement of banks; and

• Provision of cedi cover for vostro balances. The Borrowers & Lenders Act: The Borrowers and Lenders Act establishes a legal framework for credit transactions and related matters. The key regulatory objectives are to improve the standards of disclosure of information in the credit relationship, to prohibit certain credit practices and to promote a consistent enforcement framework related to credit issues.

The act establishes a collateral registry which functions as register of charges and collaterals created by borrowers to secure credit facilities provided by lenders. The collateral registry now includes the registration of charges against the assets of individuals and other type of security that are outside the scope of registrable charges as spelled out under the Companies Act, 1963 (Act 179). The Credit Reporting Act: The Credit Reporting Act provides a framework for the registration of credit bureaux, the establishment of conditions for credit reporting and other related matters. The credit bureaux serve as a data centre for the collation and provision of data on credit histories of individuals and corporate entities. The Foreign Exchange Act: The Foreign Exchange Act establishes a legal framework for the exchange of foreign currency, international payment transactions and foreign exchange transfers.

The act also regulates foreign exchange business (that is, the business of buying, selling, borrowing, lending, receiving and paying of foreign exchange) and other related matters. The BoG is the regulatory authority charged with the implementation of the Foreign Exchange Act.

The Foreign Exchange Act lifted the 10% limit placed on non-resident foreign investor holdings in securities listed on the Ghana Stock Exchange (GSE) and the 74% limit on the holdings of all non-residents in any listed company. The Foreign Exchange Act now permits non-resident foreign investors to invest in money market instruments with a tenor of three years and above.

The Foreign Exchange Act also permits full and free foreign exchange remittance with respect to the following:

• The original capital or principal amounts;

• Any capital gains;

• Dividends or interest payments; and

• Related earnings and refunds. The Foreign Exchange Act, on the whole, liberalises capital account transactions in Ghana and its exchange control regime.

REGULATION OF THE SECURITIES INDUSTRY: The Securities and Exchange Commission (SEC) is the statutory regulator charged with oversight of the securities industry in Ghana. The SEC was set up under the Securities Industry Act, 1993 (Act 333, SIA). Under the SIA, the SEC is mandated to:

• Advise the government on all matters relating to the securities industry;

• Maintain surveillance over activities in securities to ensure orderly, fair and equitable dealings in securities;

• Register, license, authorise or regulate, in accordance with this act or any regulations made under it, stock exchanges, investment advisers, unit trust schemes, mutual funds, securities dealers, central securities depositories, and their agents, and to control and supervise their activities with a view to maintaining proper standards of conduct and acceptable practices in the securities business;

• Formulate principles for the guidance of the industry;

• Monitor the solvency of licence-holders and take measures to protect the interest of customers where the solvency of any such licence-holder is in doubt;

• Protect the integrity of the securities market against any abuses arising from insider trading;

• Adopt measures to minimise and supervise any conflict of interest that may arise for dealers;

• Review, approve and regulate takeovers, mergers, acquisitions and all forms of business combinations in accordance with any law or code of practice requiring it to do so;

• Create the necessary atmosphere for the orderly growth and development of the capital market;

• Perform the functions referred to in section 279 of the Companies Code 1963;

• Review and approve all invitations to the public to acquire or dispose of securities; and

• Perform other functions specified under the SIA. As part of its regulatory mandate, the SEC licenses and regulates all brokers, investment advisors, custodians, trustees, stock exchanges and other players in the securities industry. The SEC’s regulations also set out disclosure requirements for listed companies and unlisted public companies that undertake invitations to the public covering, among others, the publication of annual and quarterly financial statements.

A key recent regulatory development is the introduction of a new Takeovers and Mergers Code in January 2008. Under the new code, all takeovers and mergers involving public companies, or where a public company is the target, require approval of the SEC. The SEC is also undertaking a review of the SIA.

A key player in the capital markets is the GSE. The GSE was incorporated as a company limited by guarantee in July 1989. Trading commenced a year later on November 12, 1990. A nine-member council governs the GSE. Criteria for listing include capital adequacy, profitability, spread of shares, years of existence and management efficiency.

The GSE started operating with 11 listed companies, which included Fan Milk, Standard Chartered Bank Ghana, Unilever Ghana and Enterprise Group ( formally Enterprise Insurance Company). As of 2002, 26 stocks, four corporate bonds and two government bonds were listed on the First Official List. This increased to 36 listed equities and a number of government bonds by year-end 2009 as companies such as Golden Star Resources (GSR), SIC Insurance Company and UT Financial Services (now UT Bank) listed on the First Official List. Tullow Oil was admitted to the GSE in July 2011 as a secondary listing. The listing of Tullow Oil made the GSE the third-largest bourse in Africa by market capitalisation, after the Johannesburg and Lagos exchanges. Kosmos Energy has also announced its intention to seek a secondary listing on the GSE.

The Central Securities Depository Act, 2007 (Act 733) now permits public companies to issue uncertificated or dematerialised shares where this is allowed in their regulations. The passing of the law paved the way for the exchange to achieve several milestones in its development. These milestones include the incorporation and operation of the GSE Securities Depository Company Limited from its own resources together with a clearing and settlement system.

Additionally, the GSE has completed the automation of its trading system with the support of the government of Ghana’s Economic Management and Capacity Building Project. Currently, it is understood that the GSE has introduced a new exchange-traded funds (ETFs) section. In November 2011 the GSE announced the introduction of rules for ETFs. The first ETF ( NewGold ETF) was listed on the GSE in 2012.

Ghana’s current exchange control regime allows non-residents to freely invest in the local capital markets without restriction. Non-residents are also guaranteed free transferability of their capital and income. However, in relation to government of Ghana notes, nonresidents are only allowed to invest in notes with a tenor of three years and above.

CUSTOMS & RELATED MATTERS: Customs duties and excise duties are levied on goods imported into Ghana. Special concessionary rates apply to Economic Community of West African States (ECOWAS) members. Under the present dispensation, the following types of duties/taxes/fees are payable on imports:

• Import duty;

• Import value added tax (VAT);

• National health insurance levy (NHIL);

• Import excise duty;

• Export Development & Investment Fund (EDIF) Levy;

• ECOWAS Levy;

• Examination (of vehicles) fee;

• Interest charges (on overstayed goods);

• Processing fee where the goods: a) Are zero (0) rated, b) Are statutorily exempt from payment of import duty, c) Are being exported ex-warehouse;

• State warehouse rent;

• Overage penalty (on vehicles);

• Administrative charges (for transit goods and vehicles); and

• Ghana Road Fund Levy (on vehicles imported for temporary use and vehicles in transit).

INTELLECTUAL PROPERTY: Ghana is a party to the Berne Convention for the Protection of Literary and Artistic Works, the Paris Convention for the Protection of Industrial Property, the Convention Establishing the World Intellectual Property Organisation (WIPO), the Patent Cooperation Treaty, the Agreement on Trade Related Aspects of International Property Rights (TRIPS Agreement), the Locarno Agreement of October 8, 1968 Establishing the International Classification for Industrial Designs, and the Harare Protocol. Ghana has signed, but has not ratified, the WIPO Performances and Phonograms Treaty and the WIPO Copyright Treaty.

Ghana has within the past three years, passed six intellectual property statutes, namely the Trademarks Act, 2004 (Act 664), the Patents Act, 2003 (Act 657), the Industrial Designs Act, 2003 (Act 660), the Layouts-Designs (Topographies) of Integrated Circuits Act, 2004 (Act 667), the Geographical Indications Act, 2003 (Act 659) and the Copyright Act, 2005 (Act 690).

Trademarks: The Trademarks Act is a comprehensive modification of the repealed Trademarks Act 1965 (Act 270) to keep pace with developments in trading and commercial practices and to modernise the legislation of trademarks to comply with international obligations under the TRIPS Agreement. To do this, the Trademarks Act has incorporated the following changes:

• Registration of service marks;

• Single register instead of the previously existing marks in either Part A or Part B;

• The period of renewal of trademark registration from seven to 10 years; and

• Action in respect of trans-shipped goods. The registration of a trademark is valid for 10 years from the date of filing the application and is renewable for a further term.

Patents: A patent has a term of 20 years from the application filing date. Annual fees are paid in advance. Where an annual fee is not paid, the application will be deemed withdrawn or the patent will lapse.

Copyrights: The new Copyright Act expressly provides for protection of copyright without the requirement of registration. The term of protection of copyright under the new act has been increased to 70 years from 50 years. The rights of the author, if s/he is an individual, are protected during his/her lifetime and 70 years after death. Public corporations and other corporate entities also have their registered works protected for a period of 70 years. Copyright protection also extends to computer programs.

Industrial designs: Ghana follows the International Classification for the registration of Industrial Designs according to the Locarno Agreement of October 8, 1968 Establishing an International Classification for Industrial Designs.

The registration of an industrial design is valid for a period of five years from the filing date of the application and may be renewed for two further consecutive periods of five years. There is no protection for industrial designs after the lapse of 10 years.

Layout designs: Protection for layout designs is granted if the layout design is original, it is the creator’s own intellectual effort and it is not commonplace among creators of layout designs and manufacturers of integrated circuits at the time of its creation. A layout design consisting of a combination of elements and interconnections that are commonplace is protected only if the combination taken as a whole is original. Protection of a layout design is valid for a period of 10 years from the date of commencement of protection.

Geographical indications: Geographical indications are governed in Ghana by the Geographical Indications Act, 2003 (Act 659) which affords protection for homonymous geographic indications for wines or other products. It also allows a person or group of persons carrying on an activity as a producer in a geographical area and a competent authority to file an application, with respect to the goods specified in said application. Protection for a geographical indication is available regardless of whether it is registered or not.

Any interested person may institute proceedings in the High Court to prevent the use of a geographical indication or to prevent it from any use that constitutes unfair competition as spelled out under the Protection Against Unfair Competition Act, 2000 (Act 589). The High Court has the power, in addition to granting injunctions and awarding damages, to grant any other remedy that it deems fit.

WORK & RESIDENCE PERMITS: Under section 24 of the Immigration Act, 2000 (Act 573, Immigration Act), no person is permitted to employ a foreign national in Ghana unless a work permit has been obtained for that foreign national. The Ghana Immigration Service (GIS) is the regulatory organisation responsible for the issuance of work permits.

For persons entering Ghana to take up short periods of employment, it is possible to obtain temporary work permits from GIS. GIS may grant temporary work permits for up to six months. In such a case, an employer must inform GIS of this situation.

Depending on the circumstances, GIS may issue temporary work permits or may simply request that it be informed periodically of the presence and activities of such employees.

The procedure for obtaining a work permit is in two parts. The first part consists of an application to GIS for permission to employ the expatriate employee. The second part consists of an application for a residence permit to enable the expatriate employee to reside in Ghana. The two applications are made separately.

A person who has been lawfully admitted entry into Ghana may, on an application to the director of immigration, be issued with a residence permit. A residence permit may be granted for up to eight years, four years in the first instance.

Residence permits may be extended on application for a further four-year period if the director of immigration is satisfied that the person has (a) fulfilled all the conditions subject to which the previous permit was granted; and (b) not abused any privilege granted that person under the previous permit.

Residence permits are also subject to the condition that the person to whom it is granted may not undertake any employment or engage in any business, trade or profession except as specified in the permit.

OBG would like to thank Bentsi-Enchill, Letsa & Ankomah for their contribution to THE REPORT Ghana 2012