Ghana is well endowed with gold deposits and is one of the most attractive business markets in West Africa. Ghana's wealth of resources, democratic political system and dynamic economy, makes it undoubtedly one of Africa's leading and stable economy, more conducive to do business than expected. Ghana's gold deposit is evident in the gold reserves which according to the US Geological Survey is estimated to be 50 million ounces (1,600 tons).
Ghana requires a particular method of setting up mineral purchasing and export company with a licence from the minerals commission to deal in gold trading and export.
The Minerals and Mining Act, 2006, as amended by the Minerals and Mining (Amendment) Act, 2015 (Act 900) provides succinctly, that a person shall not export or sell or otherwise dispose of a mineral unless that person holds a license granted by the Minister responsible for Mines and Natural Resources. A person here refers to a corporate entity established under the laws of the Republic of Ghana.
Therefore, any person be it a citizen or a foreigner who intends to engage in the purchase and export of minerals including gold must be granted a special licence by the Minerals Commission. To apply for the licence, a person must comply with the regulatory regime of these institutions in Ghana. These are
- Registrar General's Department
- Ghana Investment Promotion Center
- Minerals Commission of Ghana
Aside from the above principal institutions, an incorporated entity must also be registered with the following;
- Ghana Revenue Authority (GRA)
For the purposes of tax compliance in Ghana (That is payment of corporate tax, income tax and Pay As You Earn (PAYE).
- Social Security and National Insurance Trust (SSNIT)
For the purposes of payment of contribution for workers employed under the entity. (It is a mandatory requirement for any entity operating in Ghana to meet social security contribution of workers)
REGISTRAR GENERAL'S DEPARTMENT
In order to be licensed to buy and deal in minerals including gold, one of the conditions of the Minerals and Mining Act is, that the entity must be incorporated per the dictates of the Companies Act, 1963 (Act 177). This Act governs the organisation of Companies in Ghana.
Companies in Ghana may, either be public or private (not more than 50 members or debenture holders) and unlimited, limited by shares or limited by guarantees.
With regard to the Companies limited by shares, the Act sets down the following minimum requirements:
- At least one shareholder is required
- At least two Directors
- An Auditor
- Company Secretary
- Completion and submission of Company registration documents including that of Regulations.
It must be emphasized, that license to engage in gold purchase and exportation is granted only to corporate bodies incorporated in Ghana under the laws of the Republic of Ghana.
GHANA INVESTMENT PROMOTION CENTER ACT AND THE MINIMUM CAPITAL THRESHOLD
The Ghana Investment Promotion Center Act, 2013 (Act 865) prescribes the minimum capital threshold for non-Ghanaians for the setting up of companies with the ultimate object of being licensed by the Minerals Commission to undertake gold trading and export business. The nature of business, that is the purchase and export of gold is classified as services under the Act.
The law provides, that where the foreign investor intends to engage in the business of services and the said foreign investor has a Ghanaian partner, the foreign investor is required to invest a foreign capital of less than TWO HUNDRED THOUSAND UNITED STATES DOLLARS (USD200,000.00) in cash or capital good relevant to the investment or a combination of both by way of equity participation and the person who is a citizen must hold not less than 10% of the equity.
However, where all the equity of the company is wholly held by the foreign investor, the law as stated provides that the investor must invest a minimum of not less than FIVE HUNDRED THOUSAND UNITED STATES DOLLARS (USD500,000.00) to have the company licensed by the Minerals Commission.
A foreign investor must take note, that under the mining laws of Ghana, he or she is not mandated to have a local Ghanaian partner before a licence to engage in gold purchase and exportation shall be granted by the Minerals Commission.
The Minerals Commission is responsible for the regulation and management of the development of mineral resources of Ghana. It is also responsible to coordinate and implement policies related to mining in Ghana. It is also responsible for the grant of licences to corporate entities to undertake the business of purchase and export of gold in Ghana. All applications for licenses including the license to trade in gold shall be made to the Minerals Commission for approval.
Before applying for a licence to engage in gold trading and export, the entity must satisfy the following if it is wholly owned (all equity is held by foreigners) by the foreigner;
- Must be an incorporated company with a minimum capital of USD500,000.00.
- Must have been registered with Ghana Investment Promotion Center.
- Registered with the Ghana Revenue Authority
- Register with Social Security and National Insurance Trust (SSNIT)
- Must have a registered office.
APPLICATION FOR LICENSE TO EXPORT INDUSTRIAL MINERALS BY AN ESTABLISHED ENTITY
The Minerals and Mining (General) Regulations, 2012 (L.I 2173) provides, that a corporate body seeking to apply for a license to engage in export of gold must be prepared to provide the following;
- Particulars of financial and technical resources available to the applicant;
- An estimate of the amount of money proposed to be spent;
- A business plan or particulars of the program of the proposed operations; and
- A localization programme in accordance with these Regulations.
The Minister of Mines upon receipt of these particulars and forms may grant a license to an applicant where the Minister is satisfied that, the business plan or particulars of the programme of the proposed operations include:
- The refining or polishing of the minerals in Ghana before export;
- The purchase of only refined or polished minerals for export; or
- The supply of a percentage of the minerals determined by the Minister to lead refineries to ensure regular supply to local users; and
- The applicant can demonstrate that it has access to adequate financial resources, technical competence and experience to carry out the operations effectively.
Once the license is granted, the holder is required to submit monthly and annual returns to the Minerals Commission on all exports of minerals made. The holder is also expected to comply with the conditions specified in the license and any other conditions that the Minister may determine.
APPLICATION FOR EXPORT LICENSE BY HOLDER OF MINING LEASE
Different sets of rules apply to holders of mining lease that intends to apply for a license to engage in the export, sale and disposal of minerals in Ghana.
An application by a holder of a mining lease for a license to export, sell or dispose of gold or other precious minerals produced by the holder shall be submitted to the Minister responsible for Mines and Natural Resources. The application shall be accompanied by the following:
- A refining contract and
- Sales and marketing agreement.
Once the Minister is satisfied, the licence shall be granted to the applicant. The license holder is however required to notify the Minerals Commission of particulars of shipment of minerals, particulars of the quantity and grade of the minerals to be shipped and access for samples to be taken by a government-designated laboratory for assaying purposes;
DURATION OF LICENSE
A license granted shall be for an initial period of 3 years and subject to renewal for further 3 years.
LOCAL LEGAL REPRESENTATIVES (LLR)
It is advisable for a foreign entity, be it individual or corporate body seeking to set up a wholly owned or subsidiary mineral purchasing and export company in Ghana to have access to legal representation for timely advice and completion of documentation. The legal representative must a lawyer with in-depth knowledge and workings of mineral and mining law.
Legalstone Solicitors LLP fully understands the intricate underpinning of the mineral and mining laws of Ghana. We provide timely advice tailored to the needs of our clients.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.