An in-depth look at Ghana's legislative investment framework

Ghana’s legal system is based on the English Common Law. The respect for the rule of law and the protection of fundamental human rights are ideals woven intrinsically into the fabric of Ghanaian society. The country’s prevailing 1992 constitution further embeds these ideals and has served as a bedrock for ensuing decades of sustained democratic governance and sociopolitical stability. Largely, steady economic growth in the previous 10 years has contributed to creating what international and local investors recognise as a friendly and fertile business environment.

Access to Justice

All persons are guaranteed access to justice under Ghana’s constitution. The judicial system consists of the Superior Courts of Judicature, comprising the High Court, the Court of Appeal and the Supreme Court; and the Lower Courts, which are made up of the Circuit, District and the Juvenile courts.

The High Court Commercial Division is a specialised court that comprises an inbuilt process of pretrial settlement as a mandatory attempt at court-linked alternate dispute resolution (ADR) from the beginning of litigation proceedings.

Corporate Legal Environment

The Companies Act 2019 governs the process of setting up a business in Ghana. The 2019 act replaces the Companies Act 1963 and seeks to achieve an improved and better enhanced corporate governance regime for companies in Ghana, thereby promoting an efficient environment for businesses to thrive.

Regulatory Requirements

There are basic regulatory requirements for the formation of a business in Ghana. Key registration requirements to incorporate a company include:

• Registration with the Registrar General’s Department or the Office of the Registrar of Companies (expected to be operational within two years of enactment of the New Companies Act);

• Registration with the Ghana Revenue Authority to obtain a tax identification number (TIN) and a value-added tax registration certificate;

• Registration with the Ghana Investment Promotion Centre (GIPC) – a mandatory requirement for investments with foreign participation;

• Registration with the Social Security and National Insurance Trust (SSNIT) for pension contributions with respect to all companies with employees (local and expatriate employees alike); and

• Registration with other regulatory agency(ies) necessary for sector-specific investments.

Corporate Structures

The types of business entities that can be incorporated in Ghana are as follows:

• Companies limited by shares;

• Companies limited by guarantee;

• Unlimited Companies; and

• External Companies. These company types can be either privately or publicly held. The law also permits the registration of external companies in Ghana. An external company is a foreign incorporated company with a registered local presence in the form of a branch, management, transfer, factory, mine or any other fixed place of business.

With the exception of certain industries that have additional regulatory requirements, a company setting up in Ghana has the flexibility to engage in any form of business activity on condition that it does not state specific objects or the nature of business at the incorporation stage.

Mergers & Acquisitions

The Companies Act 2019 and the common law principles of corporate and contract law provide the basis for the sale and purchase of companies and other corporate entities in Ghana. The Companies Act 2019 provides an elaborate mechanism for arrangements, mergers and acquisitions. Additionally, other sector-specific laws provide a regulatory framework for sectoral business combinations in Ghana, such as:

• The National Communications Authority Act 2008 and its related regulations;

• The Securities Industry Law 1993 and its related regulations;

• The Banks and Specialised Deposit-Taking Institutions Act 2016; and

• The Takeovers and Mergers Code.

Foreign Investment Regulation

Most sectors in Ghana are open to foreign equity participation. The GIPC Act 2013 and the Ghana Free Zone Act 1995 form the primary legislative framework that regulates foreign investment. In a bid to attract and promote investments in Ghana, the GIPC Act 2013 requires every enterprise with foreign participation (wholly or in part) to register with the GIPC in return for guarantees and attractive incentives.

The Ghana Free Zones Board (GFZB) was established pursuant to the Ghana Free Zones Act 1995. The GFZB promotes and contributes to economic development and foreign investment through the promotion of businesses that export at least 70% of their goods or services. Like the GIPC, the GFZB also provides the investor with a variety of incentives and guarantees.

Capital Requirements

The GIPC Act 2013 sets out the minimum capital requirements for foreign equity investment in Ghana as follows:

• For a joint enterprise with a Ghanaian: $200,000 or its equivalent in capital goods (Ghanaians should have at least a 10% equity stake in the joint enterprise);

• For a wholly foreign-owned enterprise: $500,000, or its equivalent in capital goods; and

• For a trading enterprise, irrespective of whether it is wholly or partly owned by a foreigner: $1m or its equivalent in capital goods, with an additional requirement to employ at least 20 skilled Ghanaians. The above minimum capital requirements regime applies to external companies but does not apply to enterprises engaged in portfolio investments, exports and manufacturing, or to the foreign spouse of a citizen of Ghana in certain prescribed circumstances.

Investment Restrictions

A foreign investor is excluded from participating in the following sectors:

• 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 less than 25 vehicles;

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

• The printing of recharge scratch-off cards for the use by subscribers of telecommunications services;

• The retail of finished pharmaceutical products;

• The production, supply and retail of sachet water; and

• Pool betting business and lotteries (excluding football pool). The above list was correct as of September 2019 but may be subject to variation thereafter. There are also certain sectors with restrictive participation conditions, specifically in relation to minimum local content/equity participation requirements.

Incentives & Guarantees

There are a number of incentives and guarantees aimed at attracting foreign direct investment. Transfer of funds: The GIPC Act guarantees enterprises the right to repatriate funds to their investors unconditionally and in freely convertible currency, subject to the Foreign Exchange Act 2006, with its accompanying regulations and directives issued by the Bank of Ghana (BoG), the country’s central bank.

Through an authorised dealer bank, the types of funds that can be transferred, as envisaged by the act, include dividends and profits, interest payments, technology transfer fees and the remittance of the proceeds of a sale of an enterprise. Treaties protecting investments: International investment treaties are an integral part of Ghana’s investment protection legal framework. Ghana has signed and ratified bilateral investment treaties (BIT) with several countries, with many more awaiting ratification.

The Ghana Model BIT 2008 comprises provisions which closely reflect good international practices, providing investor protection, strong contractual enforcement and adequate dispute resolution mechanisms.

Ghana has also entered into double taxation treaties with a number of countries – with the most recent being Mauritius and the Czech Republic – in order to offer incentives and reduce the tax burden on international businesses operating locally. Protection of intellectual property rights: Intellectual property in Ghana is recognised and regulated by the Copyright Act 2005, the Patent Act 2005, the Trademarks Act 2004 (as amended), and the Industrial Design Act 2003. These laws protect intellectual property, such as industrial design, copyrights, patents, layout designs, trademarks and geographical indications.

Due to its membership of the African Regional Intellectual Property Organisation, the World Intellectual Property Organisation and the World Trade Organisation, Ghana is legally enjoined to respect and protect the intellectual property rights of foreign investors. Protection against expropriation: The GIPC Act 2013 and the Ghana Free Zones Act 1995 both provide a guarantee against expropriation to all investors in Ghana. Under the GIPC Act 2013, no enterprise will be expropriated or nationalised by the government, nor will a person who owns any part of the capital in any enterprise be compelled by the authorities to cede that capital to another person, save for circumstances of national security or in the interest of the public.

In the event of an expropriation, the affected entity has the right to fair and adequate compensation and a hearing before a court to determine fair and reasonable compensation. Foreign participation in procurement: The Public Procurement Act 2003 (as amended) regulates all tendering processes for government contracts. There are two exceptions to the general rule of competitive tendering. These involve single-source procurement and restricted tendering only.

Certain procurement proceedings may be restricted by the procurement entity to domestic suppliers or contractors. A domestic supplier is defined as a Ghanaian citizen or corporate entity with a majority Ghanaian shareholding.

Public-Private Partnerships

It is envisaged that the Public-Private Partnership (PPP) Bill 2016, when enacted into law, will reflect the guiding principles of the national PPP Policy 2011, which includes value for money, the incorporation of the maximum use of local content and technology transfer, and the provision that PPP projects safeguard public interest and consumer rights, as well as promote the general public good.

Technology Transfer Agreements

The GIPC Act 2013 and the Technology Transfer Regulations 1992 govern technology transfer agreements (TTAs) in Ghana. The definition of a technology transfer agreement within the act broadly includes licensing, technical and management agreements.

All TTAs must be between two or more persons and must be registered at the GIPC in order to be valid. The GIPC has the mandate to regulate and enforce TTAs in Ghana. Among other requirements, a TTA must importantly provide requisite training for a transferee to effectively utilise the licensed technology.

Labour Rights & Immigration

Labour rights are protected under Ghana’s constitution. As a member of the International Labour Organisation and a signatory to a number of international labour conventions, Ghana’s labour laws are consistent with international best practices.

The Labour Act 2003 and the Labour Regulations 2007 are the main legislative bodies guiding labour law in Ghana and are applicable to all persons, with the exception of those in the armed forces, the police service, the prison service and specified security and intelligence agencies.

Employees & Contracts

Under Ghana’s labour law, a casual worker is employed on a seasonal or intermittent basis and not for a continuous period of more than six months. A temporary worker is employed for a period of more than one month but less than six months. All employment contracts (excluding casual and temporary workers) must be presented in writing and must clearly outline the rights and obligations of both the employer and employee, as well as the terms and conditions of employment. All workers are entitled to be treated in the same way as permanent workers.

Employers are required to provide safe and healthy working conditions for all employees, as well as ensure that employees receive equal remuneration for equal work without distinction of any kind.

The inclusion of restrictive covenants, such as non-compete clauses, is permitted in employment contracts, provided that the purposes of such restriction is to protect a legitimate interest of the employer, and that the covenant is no more restrictive than necessary to protect this interest.

This is typical with contracts involving employees in senior management, as well as those who have direct access to the employer’s confidential information, trade secrets and customers. Such clauses are only allowed for a finite period of time – typically one year after termination. The Labour Act 2003 prescribes an eight-hour working day or 40-hour working week. An employee may be required to work overtime on a remunerated basis or by agreement, due to the nature of the employment, and/or in the case of a threat to life or property.

Pensions

All employers and employees are legally mandated to contribute to the national pensions scheme, managed by the SSNIT and regulated by the National Pensions Regulatory Authority.

The National Pensions Act 2008 and the National Pensions (Amendment) Act 2014 set out the regulatory legal framework for the administration and management of pension schemes and trusts.

The 2008 Act provides for a three-tiered pension scheme that includes the mandatory basic national social security scheme (tier-1), a mandatory fully funded and privately managed occupational pension scheme (tier-2), and a voluntary fully funded and privately managed provident fund and personal pension scheme (tier-3).

Expatriates with contracts of 36 months or more are required to make monthly contributions to the scheme unless they are already on a pension scheme in their home country. Pension contributions made by expatriates are transferred abroad on a lump sum basis upon their permanent departure from Ghana.

Trade Unions

With the exception of those in managerial or policy-making roles, or those who occupy highly confidential positions, an employee may join a trade union of their choice for the promotion and protection of his or her economic interests. Labour laws prohibit discrimination of a worker by an employer based on his or her association with a trade union. Where an employer terminates an employee’s contract of employment as a result of his or her association, the termination would amount to an unfair labour practice.

Trade union membership provides an effective mechanism by which employees can negotiate in good faith with employers on a variety of matters pertaining to employment. These negotiations are often secured in a form of collective bargaining agreements.

Collective bargaining agreements are often incorporated into the pre-existing contracts of employment and will be relevant to the termination of employment if they contain terms in relation to procedures for the termination of employment, including redundancy selection, and sums payable on the termination of employment.

Employment Termination

Both employers and employees are entitled to a prescribed minimum period of notice for termination of employment. The most commonly applied notice period is one month. Notice periods may, however, be longer, particularly for senior managers and directors. The law permits payment in lieu of the notice period requirement.

A contract of employment can be terminated on specified legal grounds pursuant to the Labour Act 2003. To avoid liability for unfair dismissal, the employer must ensure that any dismissal is fair in all circumstances. Following a fair dismissal process is important, as is acting consistently.

Employment Disputes

The National Labour Commission (NLC) is a quasi-judicial body responsible for investigating labour complaints, as well as facilitating and settling labour disputes. Directives or orders given by the NLC are enforceable through the High Court.

Immigration

The entry, residence, employment and exit of all expatriates is regulated and monitored by the Ghana Immigration Service (GIS). Non-citizens must also obtain work and residence permits through the GIS in order to engage in employment.

Companies registered with the GIPC can apply for a maximum of four automatic expatriate quotas from the GIPC depending on the level of equity investment made in the country.

The individual identified in the expatriate quota letter is not permitted to commence work until he or she is issued with a residence and work permit. Work permits are granted only for a specified period, employment position and employer. It is compulsory for Ghanaian and foreign national employees to obtain a unique TIN in order to access a number of services and benefits.

Property

Property and land ownership are governed by the 1992 constitution, a variety of statutes, common law, case law and customary law and usage. Land ownership: Ownership of land in Ghana takes different forms but the most common are:

• Allodial titles;

• Freehold titles; and

• Leasehold titles. Allodial titles have the highest form of interest in land and is recognised as being held or vested in traditional stools or skins (community chiefs, elders or family leaders) or families on behalf of, and in trust for, the subjects of the stool, skin or family members.

Freehold titles are held for an indefinite period, while a leasehold interest exists for a specified period of time. Although a foreigner is not legally permitted to obtain a freehold interest in land, he or she may acquire a leasehold interest for a period not exceeding 50 years, subject to renewal by agreement upon or near expiry.

All land in Ghana is considered “owned” by another and, thus, must be acquired from the authorised person. There are private lands, as acquired from the skins, stools, families or individuals and public lands held by the president on behalf of, and in trust for, the people of Ghana.

The Lands Commission regulates the transfer and registration of interests in land and processing of land documentation. An element of stamp duty, calculated as a percentage of the value of land, must be paid on all instruments relating to land within two months of the execution of transfer.

Lease agreements must be put forward in writing to be enforceable and may be registered at the Lands Commission if for a duration of three years or more.

The Land Use and Spatial Planning Act 2016 regulates urban sustainable development of land and ensures that land usage follows spatial plans, zoning regulations and planning standards within a particular region.

Compulsory Acquisition

By virtue of the 1992 Constitution, the government may, in the public interest, acquire property from the holder of a title, on the condition that either adequate compensation is paid or a suitable alternative land is provided, in light of the existing economic, social and cultural circumstances.

Sale, Purchase & Rent Obligations

Gains made from the sale of property are subject to a capital gains tax. Property tax is paid annually on residential and commercial properties. The amount of tax payable is dependent on where the property is located. Additionally, a levy is to be paid to the local district municipal assembly. Ground rent is due annually where property is acquired from a stool or skin, or the state. Withholding tax is payable on commercial and residential rent payments, unless a certificate of exemption has been issued by the Ghana Revenue Authority.

A landlord may demand no more than six months’ rent payment in advance. The proposed amendment to the Rent Act of 1963 stipulates a rent advance payment between one month and one year.

A land bill is under parliamentary consideration to consolidate all existing land laws in the country for better management and administration of land in Ghana. The Lands Commission is also undergoing a digitisation process to aid in the effective management and acquisition of land in Ghana.

Local Content & Participation

Ghana’s local content regime is, by and large, aimed at the natural resources extractive sector. Apart from the GIPC Act 2013, which addresses local content requirements applicable to foreign investment in general, the following laws and regulations apply to specific sectors as outlined below.

Petroleum Industry

In the upstream segment, the Petroleum (Local Content and Participation) Regulation 2013 provides that foreign companies that wish to enter into a petroleum agreement or qualify for a petroleum licence must do so with an indigenous Ghanaian company with at least 5% equity participation (subject to ministerial discretion for a lesser percentage). For the supply of petroleum goods and services, the minimum equity participation of the indigenous Ghanaian is 10%.

The regulation also establishes the minimum threshold for procurement and employee quotas for management, technical core and other staff. Services procured with respect to insurance and reinsurance brokers, and legal, financial and banking services, are to be the preserve of indigenous Ghanaian companies.

With regard to downstream activities, the National Petroleum Authority Act 2005 regulates the downstream industry, promoting both solely owned Ghanaian enterprises and registered joint ventures between a foreigner and a Ghanaian, depending on the type of licence being sought.

The Local Content Policy 2019 for the downstream sector lays down an aggressive timetable for the development of local content and local participation in all aspects of downstream petroleum activities. Activities include trading, shipping and the bulk distribution of petroleum products. The primary aim is to promote the indigenous participation of the Ghanaian labour force.

Energy

The Energy Commission (Local Content and Local Participation) (Electricity Supply Industry) Regulations 2017 apply to persons engaged in electricity supply activities. This includes wholesale power supply, renewable energy, electricity distribution, electricity sales, manufacturing electricity equipment, brokerage services and electricity transmission infrastructure.

Equity participation requirements within the electricity supply industry are applicable starting from a percentage of 15% Ghanaian equity holding, which is not to be transferred unless to another Ghanaian. Provisions are also made for local content thresholds for the procurement of materials and services, and employee quotas.

Mining

Large scale mining and mineral rights are open to participation from foreign companies without any restriction. Small-scale mining is reserved for Ghanaians. The regulations require that holders of mineral licences give preference to locally made materials, goods and products, indigenous service providers, mining support services and certain types of skilled and unskilled labour explicitly spelled out in the regulations.

Construction & Shipping

Local content policies for both the construction and shipping industries actively promote the participation of native Ghanaians in businesses and employment, particularly for unskilled and mid-level skilled personnel.

Banking

The banking industry is governed by the Banks and Specialised Deposit-Taking Institutions Act 2016, among other laws, regulations and directives. The BoG is vested with the responsibility of licensing banks and specialised deposit-taking institutions, as well as overseeing the registration of financial holdings and the approval of foreign banks to establish representative offices. As a result, no person shall engage in a deposit-taking business within the country without a licence issued by the central bank. The minimum capital requirement for financial institutions is GHS400m ($86.4m).

An individual or a corporate body may acquire sufficient interest in a bank irrespective of whether such person is a national or a foreigner. However, in order to acquire as little as 5% equity stake in a bank, or to appoint key management personnel, consent of the BoG is required.

Non-Bank Financial Institutions

The NonBank Financial Institution Act 2008 addresses the requirements for leasing operations, mortgage finance operations, moneylending operations, money transfer services, non-deposit taking microfinance services and credit union operations.

A licence to provide a non-bank financial service is issued to a company incorporated in Ghana having satisfied the minimum capital requirement as currently specified by the BoG as GHS15m ($3.2m).

There is an additional requirement with regard to foreign ownership in which at least 60% of the capital must be transferred to Ghana in convertible currency. All licence conditions are subject to confirmation at the time of making the relevant application.

Telecommunications

The Electronic Communications Act 2008 governs the telecommunications sector. Electronic communications services are classified into categories such as: communication services, broadcasting services, cable services, satellite services, value-added services, aeronautical services, maritime services, amateur services and any other services as determined by the International Telecommunication Union. The National Communications Authority (NCA), the relevant regulatory authority, grants a class licence or authorisation for the operation of services.

A person who has a significant interest in a network operator or service provider shall not sell, transfer, charge or otherwise dispose of that interest or any part of that interest in the network operator or service provider, without notification to the NCA before the proposed transaction.

Petroleum

The principal legislation for petroleum exploration and production is the Petroleum (Exploration and Production) Act 2016.

Pursuant to the act, a person may be granted a reconnaissance licence for the duration of three years (renewable for an additional two years), in respect of a defined area with the non-exclusive right to undertake data collection, including seismic surveying, processing and interpretation or the evaluation of petroleum data in the area specified in the licence.

A prerequisite to a reconnaissance activity is compliance with the requirements of the Environmental Protection Agency Act 1994. An exploration licence is granted for a seven-year duration, renewable depending on the activities of the seventh year.

A petroleum agreement shall be granted for a period of 25 years. An application for extension is permissible, subject to the ratification of Parliament.

The Ghana National Petroleum Corporation shall hold an initial participating carried interest of at least 15% for exploration and development within every petroleum agreement and shall have the option to acquire an additional participating interest, which must be exercised within the specified period.

Minerals & Mining

The Minerals and Mining Act 2006 (as amended), with accompanying regulations, governs the minerals and mining sector in Ghana.

The three kinds of mining rights that may be acquired in Ghana are as follows:

• A reconnaissance licence;

• A prospecting licence; and

• A mining lease. Holders of a reconnaissance licence with a validity of 12 months can engage in an exploratory search for minerals and conduct reconnaissance exercises within a specified reconnaissance area.

A prospecting licence with a validity of three years entitles the holder to carry out activities to determine the extent and economic value of any deposit in the prospecting area, whereas the mining lease is granted for a period not exceeding 30 years to mine for specified mineral.

A mineral right cannot, in whole or in part, be transferred, assigned, mortgaged or otherwise encumbered without the prior approval of the Minister of Lands and Natural Resources.

Mining companies are required to obtain necessary approval and permit from the Forestry Commission of Ghana and the Environmental Protection Agency before undertaking any operation.

There are no restrictions on the processing of minerals. However, a person must obtain a licence in order to export, sell or dispose of any minerals.

Stability agreements are permissible under the law between the government and an investor as an investor protection measure.

Energy

The Energy Commission, established by the Energy Commission Act 1997, provides for the regulation, management, development and utilisation of energy resources in Ghana. This includes the granting of licences for the transmission, wholesale supply, distribution and sale of electricity and natural gas, as well as the refining, storage, bulk distribution, marketing and sale of petroleum products and related matters.

The act lays emphasis on the non-transferability of a licence without the prior written approval of the Energy Commission.

The Renewable Energy Act 2011 specifically sets out a framework for the promotion, development and utilisation of renewable energy sources, and for attracting investment in the renewable energy industry. The objective of the National Energy Policy is to achieve a renewable energy proportion of 10% in the total national energy mix by 2030.

Insurance Sector

The National Insurance Commission (NIC) regulates the insurance industry pursuant to the NIC Act of 2006.

The NIC is authorised to issue one of two classes of business licences for either life or non-life policy providers. Licences are issued for a duration of 12 months and are renewable upon application. The act prohibits a composite insurance business. A contract of insurance with an offshore insurer is permitted subject to the consent of the NIC.

A person cannot acquire, sell, transfer, charge or dispose a significant interest in an insurance business without the prior written approval of the NIC. The new minimum capital threshold for insurance companies has been set at GHS50m ($10.8m), with a deadline of June 30, 2021 for compliance. The NIC has published guidelines for sectors such as reinsurance and bancassurance.

Alternative Dispute Settlement

The ADR Act 2010 aims to harmonise local arbitration laws with international conventions, rules and practices in arbitration. The act also provides the legal and institutional framework to facilitate the settlement of disputes through ADR procedures.

The GIPC Act provides non-Ghanaian investors with alternative methods of dispute settlement with the government, including direct access to international arbitration. It presents the foreign investor with the following three options for international arbitration:

• The UN Commission on International Trade Law;

• The rules of arbitration applicable in any bilateral or multilateral agreement to which Ghana and the country of the investor are parties; and

• The Ghana ADR Act 2010, where there is a disagreement between the parties as to the other available methods, subject to an arbitration agreement to the contrary. Other pieces of legislation which specifically provide a framework for parties to resort to arbitration include the Ghana Free Zones Act 1995, the Banks and Specialised Deposit-Taking Institutions Act 2016 and the Renewable Energy Act 2011.

There are additional legal mechanisms in place for both local and foreign arbitration awards to be enforced in the High Court of Ghana, subject to specifically laid down criteria and procedures.