BY MRS. R. N. K. NYAKOTEY
ACTING CHIEF EXECUTIVE , GIPC)
Ghana’s 1992 Constitution, which is the basic framework for the governance of the country, offers guarantees for protection to investors and their investments. Chapter 5 of the Constitution embodies the relevant protection mechanisms.
a. Protection of Investors under the Constitution
The 1992 Constitution, like all old and modern constitutions worldwide, enshrines the fundamental human rights and freedoms of “every person”, which by implication includes “a foreign person” living in Ghana. The Constitution enjoins the Executive, the Legislature and the Judiciary; including all organs and agencies of government, to uphold the basic rights of all persons within the territory of Ghana.
- Basically, these guarantees relate to:
- Protection of the right to life
- Protection of personal liberty
- Respect for human dignity
- Protection from slavery and forced labour
- Equality and freedom from discrimination
- Protection of privacy of home and other property Freedom of speech and expression
- Freedom of thought, conscience, belief and religion, and Freedom of movement.
These guarantees should be of interest to investors since they migrate along with their families and with the requisite expatriate workers to reside and work in Ghana as the host country to the investment. It must be noted that the foreign investor has a corresponding obligation to respect all laws and regulations of the country. This requirement is not peculiar to Ghana or Africa. It is a legitimate requirement for residing in every country in the world.
b. Protection of Investment under the Constitution
With respect to protection of investments, Article 20 of the Constitution guarantees protection from deprivation of property. Specifically, the Constitution states that the there shall be no compulsory acquisition of property, which by implication, includes “investment”, except where such compulsory acquisition is necessary for the defense, public order, morality, health and benefit of the country. The Constitution further states that compulsory acquisition must be made under law and in a transparent manner. More importantly, compulsory acquisition of property must be accompanied by prompt, fair and adequate compensation, which is a basic obligation under international law adopted by most constitutions worldwide. The implication of these Constitutional provisions are that any foreigner in Ghana can, on the basis of the Constitution, claim protection for his property (investment) and his person in the and can defend his investment and his person in the law courts on the basis of these onstitutional provisions. These guarantees do not apply to Ghanaian nationals only. Indeed, they apply to all persons who reside in Ghana and all persons who own and implement investment projects within theterritory of Ghana.
GUARANTEES OF INVESTMENT PROTECTION
Under the Ghana Investment Promotion Centre Act 1994 (GIPC Act 478), investors are given concrete guarantees and assurances in respect of their investments in Ghana. These include:
- unconditional trnasferability of dividends and net profits to their home countries
- transferability of payments for loan servicing in the case of foreign loans and royalties and other fees in respect of technology transfer transactions e.g. licenses, technical assistance and management contracts and
- remittances of proceeds in the event of sale and liquidation of investment assets in the currency in which the investment was originally made to their home countries.
It must be noted, however, that all these transfers are subject to the payment of all local taxes as is generally the standard requirement in nearly all countries. The GIPC Act also offers guarantees against expropriation. Similar to the provisions in the Constitution, expropriation is allowed only in the national interest and must be accompanied by fair and adequate compensation. The aggrieved party or the investor is given the right of access to the High Court for the determination of the fair value of the investment and the amount of compensation payable.
Dispute Settlement Guarantee
Beyond the protection guarantees offered under the law, Government also gives guarantees related to the settlement of investment disputes in selected specified fora. In essence, Government is giving advance commitment to settle all investment related disputes in an amicable manner, through mutual discussions, and failing which the aggrieved party (the investor) is given the right to request for dispute settlement within the context of various frameworks for dispute settlement provided at the bilateral and multilateral levels. By this, Government enhances the framework for dispute settlement and, accordingly, allays the fears of investment security in the minds of the foreign investor.
Among some of the fora specified are:
- The Rules of procedure for arbitration of the United Nations Commission on International Trade law or the UNCITRAL Rules
- Under the Convention of the International Centre for the Settlement of Investment Disputes (ICSID)
- International Chamber of Commerce (ICC)
Within the framework of the dispute settlement provisions in any bilateral or multilateral agreements between Ghana and the country of the aggrieved investor.
