NUTS & BOLTS

Ghana 2016 | EXECUTIVE GUIDE | REVIEW: LEGAL

AB&David outlines Ghana's legislative framework and highlights the nuances of doing business in the country.

Introduction

Ghana has experienced a tough time over the last two and half years primarily due to the fall in the prices of oil and gold, coupled with the power crisis that threatened to cripple businesses. It is expected that the turn around of the power challenges and the attempt to secure fiscal consolidation will see Ghana's economy rebound. The consolidation agenda hinges on the government's commitment to promote fiscal discipline based on enhanced domestic revenue mobilization, prudent public expenditure management, improved debt mangment, and the implementation of reforms in key areas of the economy.

Business vehicles

In Ghana, a local business may be established by: the incorporation of a private or public company limited or unlimited by shares (for profit) or by guarantee (not for profit) or registration of an external company i.e. a branch of a company incorporated outside Ghana.
The minimum capitalization of a local entity is determined by the nationality of the shareholders and nature of business. The minimum foreign capital required are as follows:
• A joint venture company made up of Ghanaian and foreign shareholders requires a minimum foreign capital of $200,000 with the Ghanaian partner having not less than 10% equity participation.
• Where the company is wholly foreign owned, the minimum foreign capital required to be invested is $500,000.
For companies looking to trade, a minimum foreign capital of $1 million should be invested. Additionally, the company is required to employ at least 20 skilled Ghanaians.

Banking & Financial Services Sector

The Bank of Ghana (BoG) must approve any agreement or arrangement that: (i) would result in a change in the control of a bank, non banking financial institution or their holding companies. Consequently the sale, disposal, or transfer of 10% or more of the capital or voting rights of a company, an amalgamation or merger requires the approval of BoG.

Capital Markets

Ghana's capital markets are regulated by the Securities & Exchange Commission, which has the mandate to protect investors and maintain the integrity of the securities market and the Ghana Stock Exchange. There is also the Ghana Alternative Market (GAX), which is a parallel market to the Ghana Stock Exchange that focuses on small- and medium-sized businesses with potential, including start-up companies.

Insurance Industry

In the insurance sector, the acquisition or sale of a significant interest in an insurance company also requires the prior written approval of the National Insurance Commission.
A Significant Interest is any interest in the company that entitles a person to control 10% or more of the voting rights, dividends, or shares in any distribution of the surplus assets of the company.

Mining, Oil & Gas

In the mining sector, the acquisition of a stake in a mining company, which vests in a person either alone or with an associate or associates and that affords control of more than 20% of the voting power at any general meeting of a mining company or of its holding company, requires the approval of the Minister responsible for Mines.
The Mining Act is currently being reviewed to tighten regulations in the areas of revenue, licensing, and protection of the environment.

Petroleum

In the upstream sector, there is a local content requirement for a non-transferable minimum of 5% shareholding by Ghanaian companies operating in the upstream sector. The downstream sector in Ghana covers the import, export, re-export, shipment, processing, refining, storage, distribution, marketing, and sale of petroleum products. A maximum 50% stake may be acquired by a non Ghanaians in the downstream sector in Ghana.

Telecoms

In the communications sector, the National Communications Authority (NCA) must approve the transfer of shares in a licensee company if the transfer would result in a change of control of that company and cause that company to breach its licence terms relating to its ownership structure.

TAXATION OF BUSINESS

Corporate Taxes
The income of a resident company is subject to a corporate tax of 25% on its annual profits. In addition to the applicable tax of 25%, where a branch repatriates its branch profit after tax, it will be required to pay an additional 10% tax on the amount repatriated.
For resident businesses, income from business and investment derived from, accrued in, brought into, and received in Ghana are taxable. For non-resident persons, income derived from or accrued in Ghana is taxable.

VAT/NHIL

Value Added Tax (VAT) and National Health Insurance Levy (NHIL) are charged at a rate of 15% with a zero rate applied to all exports. NHIL is a levy on goods and services supplied in or imported into Ghana. The levy is charged at a rate of 2 .5% on the VAT- exclusive selling price of the goods supplied or services rendered. All goods and services are subject to the NHIL unless exempted.

DOUBLE TAXATION TREATIES

Ghana has entered into double taxation treaties with nine countries namely: the UK, France, Belgium, South Africa, Italy, Germany, Switzerland, the Netherlands, and Denmark. Residents of any of these countries, with the exception of the UK, are exempt from Ghanaian tax to the extent that they are not resident in Ghana and the profits or gains concerned are subject to tax in their country of residence.

CAPITAL AND PROFIT TARGET

Investments registered with the Ghana Investment Promotion Centre (GIPC) and the Free Zones Board (FZB) are guaranteed unconditional transfer of dividends or net profits attributable to the investment made in the enterprise, payments in servicing foreign loans, fees and charges arising from technology transfer agreements registered under the GIPC Act and remittance of proceeds, net of all taxes, and other obligations from the sale or liquidation of the enterprise or any interest attributable to the investment in the enterprise

EXCHANGE CONTROL

Ghana's exchange control regime regulates the transferability of foreign exchange outside the country. Under the BoG's Operational Guidelines developed pursuant to the Foreign Exchange Act 2006, (Act 723), residents are permitted to maintain foreign exchange accounts with the banks. Under the law, exchange controls are operated by authorized dealer banks, which are required to report their foreign exchange dealings to the BoG.
Anti-Money Laundering

Pursuant to the Anti-Money Laundering Act, 2008 (Act 749) the Financial Intelligence Centre (FIC) was established within the BoG to provide assistance in the identification of proceeds of unlawful activities and to combat money laundering in Ghana. Banks are required under the law to apply comprehensive Know Your Customer due diligence on existing and potential clients in respect of financial transactions.

INVESTMENT PROTECTION

GUARANTEES
The Ghana Investment Promotion Centre (GIPC) Act, 2013 (Act 865) and the Free Zones Act 1995(Act 504), respectively, promote economic development and regulate the activities of investors in Ghana. The GIPC law regulates companies in all sectors of the economy. The Ghana Free Zones Board (GFZB) has the mandate to regulate businesses (excluding banking and insurance) classified as free zone companies that export at least 70% of their products and services. There is also sector-specific legislation that regulates specific industries.
Investment guarantees include:
• Non-discriminatory application of rights and obligations under investment laws;
• safeguards against expropriation;
• guaranteed transferability of capital, profits, proceeds of sale/liquidation, interest and dividends, and personal remittances attributable to the investments (net of all taxes and other obligations) subject to directives that that the BoG may issue on forex transactions;
• payments in respect of foreign loan servicing;
• fees and charges in respect of technology transfer agreements registered with the GIPC;
• amicable settlement of disputes in respect of an enterprise between a foreign investor and the government and submission to arbitration;
• those provided under the United Nations Commission of International Trade law;
• application of the framework of the bilateral or multilateral agreements on investment protection to which the government and the country of which the foreign investor is a national are parties;
• application of any other national or international mechanisms for the settlement of investment disputes agreed to by the parties;
The Petroleum (Local Content and Local Participation) Regulations, 2013, LI 2204 focus on the local content in the percentage of locally produced materials, personnel, financing, goods, and services rendered in the petroleum industry value chain that can be measured in monetary terms. It provides the minimum local content levels for petroleum activities. Significantly, where the total value of the bid of a qualified indigenous Ghanaian company does not exceed the lowest bid by more than 10%, the law mandates that the contract be awarded to the indigenous Ghanaian company.

PROTECTION OF INTELLECTUAL PROPERTY (IP) RIGHTS

Ghana has in place IP legislation governing geographical indications, trademarks, unfair competition, copyright, industrial designs, patents, and the layout-designs (topographies) of integrated circuits. There are civil and criminal sanctions for the infringement of IP legislation in Ghana.
Ghana's Protection against Unfair Competition Act, 2000 (Act 589) codifies the common law tort of passing off. The Act sets out the various practices deemed as unfair competition, defines these practices, and outlines the extent of protection provided under Ghanaian law and other related matters. Major practices considered as unfair under the law include causing confusion with respect to another's enterprise or its activities, damaging another person's goodwill or reputation, misleading the public, discrediting another person's enterprise or its activities, unfair competition in respect of secret information, and unfair competition in respect of national and international obligations.
The Plant Breeders' Bill is currently before parliament and is yet to be passed as there is an ongoing debate on the impact it will have on the agriculture sector.

LABOUR

The Labour Act, 2004 (Act 654) governs the rights and obligations of employers and employees with the exception of employees of the Security Agencies and Intelligence Agencies. The National Labour Commission (“Labour Commission") is the administrative body responsible for the administration of the Labour Act and the settlement of disputes. The Labour Commission employs negotiation, mediation, and voluntary/compulsory arbitration, in the exercise of its mandate. The order of the Labour Commission is enforceable only on the order of the High Court.

Employment Of Expatriates

An application for a work permit for expatriate staff may be made directly to the Ghana Immigration Service (GIS) or through selected sector regulators to the GIS. These are generally short term, may be renewed, and are not transferable.

The number of automatic immigrant quotas allowed by the GIPC law are dependent on the capital investment made by the company. Immigrant quotas are issued by the GIPC in consultation with GIS. These quotas have an indefinite duration and can be transferred by a company to expatriate employees.