Oil, Gas and the Transition to Renewables 2024 Comparisons

Article 257 of the 1992 Constitution of the Republic of Ghana stipulates that the country’s mineral resources, including petroleum resources, are vested in the President on behalf of the people of the Republic of Ghana. There are no local, district or municipal agencies that exercise control or ownership over oil and gas resources in the country, and all petroleum resources are managed by agencies of the central government such as the Ministry of Energy.

The primary state agencies responsible for the regulation of hydrocarbon resources and activities are the Ministry of Energy (MoE), Petroleum Commission (PC), the Energy Commission (EC) and the National Petroleum Authority (NPA). The MoE is headed by the Minister of Energy and is the ultimate decision-making body.

The PC was established by the Petroleum Commission Act, 2011 (Act 821), and is charged with the promotion, planning and execution of policies for the optimal realisation of benefits from the exploitation of petroleum resources in the country. The PC is tasked with the day-to-day regulation of upstream oil and gas activities. Its foremost task is to ensure that the state obtains the best value from its petroleum resources. The PC is the authority that processes and grants applications for the exploration and production of petroleum. All petroleum agreements (PAs), which grant rights for the exploration and production of petroleum resources, are entered into by the Minister on behalf of the state, upon the advice of the PC.

The NPA was established by the National Petroleum Authority Act, 2005, Act 691 (the “NPA Act”), to regulate, oversee and monitor activities in the downstream industry and to establish a Unified Petroleum Price Fund (UPPF), among others. The NPA regulates refining, storage, transportation, distribution, marketing and sales, importation, exportation and processing of petroleum products in the country. The NPA has achieved price liberalisation, which has allowed players in the industry to set ex-refinery and ex-pump prices based on a prescribed petroleum pricing formula with no intervention from government.

The Energy Commission Act, 1997 (Act 541), establishes the EC as the regulator of midstream oil and gas operations. The EC grants licences for natural gas processing, liquefied natural gas (LNG) facilities, natural gas wholesale supply, natural gas transmission, natural gas distribution and natural gas sale.

The Ghana National Petroleum Corporation (GNPC) was established by the Ghana National Petroleum Corporation Act 1983 (PNDCL 64) to lead the nation’s efforts towards the efficient exploration and exploitation of its potential oil and gas resources. The GNPC currently has no regulatory functions. It is a party to all PAs, holding the state’s participation interests in oil blocks. The GNPC is the national gas sector aggregator, by way of government policy, and is tasked with the management of all gas resources for the efficient use and development of the nation’s gas resources.

Ghana National Petroleum Corporation Act 1983 (PNDCL 64)

This Act established the GNPC and gave it the mandate to explore and exploit the nation’s petroleum resources in its capacity as the national oil and gas company.

Petroleum (Exploration and Production) Act, 2016 (Act 919)

The object of this legislation is to ensure the safe, secure and efficient execution of upstream petroleum activities, and for the state to derive the optimal benefit from the exploitation of petroleum resources. The parameters and conditions of licensing for various petroleum activities are set out in this legislation. The powers and obligations of the Minister of Energy and the other state agencies in the sector are also provided for in the Act.

Petroleum Commission Act, 2011 (Act 821)

This Act established the PC as the regulator of upstream oil and gas activities, with the object of regulating and managing the utilisation of petroleum resources in Ghana and co-ordinating policies in relation to these resources. This Act also empowers the PC to plan for the development of petroleum transportation, processing and treatment facilities, and to regulate decommissioning plans for petroleum fields and infrastructure.

National Petroleum Authority Act, 2005 (Act 691)

This Act established the NPA to regulate, oversee and monitor activities in the petroleum downstream industry, to establish a Unified Petroleum Price Fund and other related matters. The NPA, therefore, regulates activities from the importation and refining of crude oil as well as the processing, storage, sale, marketing and transportation of petroleum products.

Petroleum (Local Content and Local Participation) Regulations, 2013 (LI 2204)

The state promulgated these regulations in its bid to facilitate and ensure the growth of local expertise and knowledge in the upstream petroleum sector. The objective is to promote the use of local goods and services in the exploitation of the country’s upstream petroleum resources, to the fullest extent possible, with a view to equipping Ghanaians with the knowledge, skills and expertise to compete in the upstream oil and gas sector in Ghana. This law has recently been amended to enable the PC, at its discretion, to direct non-indigenous Ghanaian companies (NGCs) and indigenous Ghanaian companies (IGCs) to enter channel partnerships and strategic alliance arrangements to supply goods and products to a contractor instead of incorporating a joint venture company (JVC). The amendment also redefines an IGC by raising the share qualification from 51% to 100% Ghanaian citizen ownership and provides a list of goods and products whose supply is reserved for IGCs.

Petroleum Revenue Management Act, 2011 (Act 815)

This Act provides for the receipt, distribution and utilisation of petroleum revenue due to the Republic of Ghana from the commercial exploitation of the country’s upstream petroleum resources. The Act establishes the various petroleum funds, including the Petroleum Holding Fund (into which all petroleum revenue due to the state should first be paid), the Stabilisation Fund and the Heritage Fund.

Other Legislation

This includes the Petroleum (Exploration and Production) (Measurement) Regulations, 2016 (LI 2246); the Petroleum Exploration and Production – Data Management Regulations, 2017 (LI 2257); the Petroleum (Exploration and Production) (General) Regulations, 2018 (LI 2359); the Petroleum Commission (Fees and Charges) Regulations, 2015 (LI 2221); the Petroleum Hub Development Corporation Act, 2020 (Act 1053); and the Petroleum (Exploration and Production – Health Safety Environment) Regulations, 2017 (LI 2258).

The Petroleum (Exploration and Production) Act, 2016 (Act 919) states that only a body corporate may undertake the exploration, development and production of petroleum, subject to the execution of a PA with the Republic of Ghana and the GNPC. The PA sets out the terms between the parties regarding the rights, obligations, timelines, etc, for conducting a petroleum activity. The Local Content Regulations stipulate that, in addition to the carried participating interest held by the GNPC, an IGC must hold at least 5% participating interest in any PA. The PA is a hybrid of a concession agreement and a product sharing agreement over a defined acreage and under current applicable legislation, for a term of 25 years.

Act 919 further states that petroleum activities may only be undertaken by a private entity when it has successfully executed a PA with the MoE. The PA may be obtained in two ways.

The first is through a successful tender or direct negotiations in response to an invitation to tender, or by entering direct negotiations as published by the MoE. Where an invitation to tender or to enter direct negotiations is published, the MoE is required to do so in at least two state-owned daily newspapers and any other media of its choice.

The second is through successful direct negotiations should the minister exercise his option to approach a qualified body corporate directly and enter direct negotiations with it, and subsequently execute a PA in respect of the contract area. However, this may only be done by the MoE in a situation where a PA has not already been entered into in respect of that area.

Requirements

The entity that seeks to enter a PA must have the requisite technical expertise and financial capacity to fulfil its obligations and undertake the contemplated petroleum activities. The MoE has the power to require the formation of a consortium as a condition for the PA where it believes this to be the best way of ensuring satisfaction of technical and financial obligations.

The PA is required to confer on the GNPC an initial carried participating interest of at least 15% for exploration and development. The PA may also provide an option for the GNPC to acquire additional paid participating interest, although this option is time-bound and must be exercised after commercial discovery. The paying interest covers costs incurred in petroleum activities other than exploration costs. The MoE is required to obtain parliamentary approval and ratification for every PA before the PA can have legal effect.

The MoE reserves the right to require a pre-qualification process to be undertaken by all entities interested in responding to a published invitation to tender. The pre-qualification notice should state the nature of the petroleum activities contemplated to be undertaken, the contract area, the schedule for the tender process, and instructions on how to prepare and submit applications for the pre-qualification process. Each application must disclose the applicant’s name, address, nationality and ownership particulars (including that of beneficial owners), among other details. The essence of the pre-qualification process is to provide the MoE with as much information as possible to assist the MoE in determining the legal status of the applicant, its financial capacity, and its technical and managerial expertise. A pre-qualification application may be submitted jointly by two or more applicants. A joint application must clearly state which of the applicants is designated as the operator in the group.

Applying for Registration

Licences for operating in upstream activities are granted by the PC. Registration must be completed with the PC, and a permit must be obtained for the activity sought to be engaged in – exploration or production. To register, the contractor must be fully incorporated in Ghana as a limited liability company. The application for registration must include a completed application form, together with a cover letter; copies of the contractor’s certificates of incorporation, constitution (articles of association), company profile and audited accounts; a valid Social Security and National Insurance Trust (SSNIT) clearance certificate; a business plan; and copies of receipts for payments made for the purchase of the application pack.

The application may also be made by a JVC, which will be required to file the shareholders’ agreement, as well as the company documents stated above. The shareholders’ agreement must clearly state the identity of the parties, the equity split, the obligations of the parties, the dividend policy, the transfer of shares, deadlock provisions, the process for the appointment of executive and non-executive directors, and the considerations for the transfer of technology and knowledge to the local partner of the joint venture.

Participating interest

Under the Petroleum (Local Content and Local Participation) Regulations, 2013 (LI 2204), an IGC is required to hold a minimum of 5% of the participation interest in the PA in respect of which an application for a licence is made.

Security

The MoE requires a contractor to provide security to guarantee the performance of that contractor’s obligations under the PA. This security is typically satisfied by the presentation of a parent company guarantee.

Minimum thresholds

The contractor’s financial capacity and expertise will be evaluated by the PC to determine whether the contractor meets the minimum thresholds required to undertake the works for which the licence is sought.

Fees

The PC considers all applications for registration and may undertake site visits. It may approve the application, request clarification or explanation, or reject the application outright. If the application for registration is successful, the applicant will be required to pay the appropriate fees based on its annual turnover or projected revenue (for newly formed companies), in accordance with the Petroleum Commission (Fees and Charges) Regulations, 2015 (LI 2221). Upon satisfaction of the conditions and payment of the fees, the permit should be ready for collection by the authorised representative of the contractor within five days. The permit is subject to annual renewal.

The key fiscal terms that apply to an applicant are subject to negotiation during the conclusion of the PA. Therefore, profit-sharing, excess profit payment, royalties and bonuses are all subject to contract.

Royalties

The PA must state the rate of royalty payments due to the country from petroleum activities. Although the Model PA provides for 12.5% of the gross production of crude oil to be paid to the state as royalty, royalties may be negotiated, with some PAs setting the royalty payment obligation as low as 4% of gross petroleum volume produced and saved. The MoE may stipulate that the cash equivalent of the stipulated royalty under the PA should be paid instead of delivery of the crude oil equivalent. Where the MoE accepts royalty payments in kind, it may instruct the contractor to transport, process and store the royalty petroleum on terms not less favourable than those used for the contractor’s own entitlement to the petroleum produced.

Annual Acreage Fee

Another key fiscal term of a PA is the stipulation of an annual acreage fee for the contract area in question. Although the PA is required to state the applicable acreage fee, the MoE reserves the right to amend the fee payable in respect of any applicable renewal.

Taxes

Contractors are liable for the payment of taxes on the gains accruing from their operations under the PA. Such taxes include petroleum income tax and capital gains tax.

Bonus Payments

The state is entitled to bonus payments from the contractor, as prescribed. Where the type and quantum of the bonus payable are not prescribed, the bonus must be paid in accordance with the terms of the PA. The state is also entitled to a portion of a contractor’s share of petroleum produced from each field based on the after-tax, inflation-adjusted rate of return that the contractor achieved with respect to each field.

The general applicable income tax stipulated by the Income Tax Act, 2015 (Act 896) and as stated in the Model PA is 35%. Unless specifically stated otherwise in the PA, the income tax rate is 35%.

Contractors are generally allowed to capitalise their cost of exploration until production and are granted capital allowance on capital expenditure over a five-year period on a straight-line basis. They are therefore allowed to carry over losses incurred over a five-year period under the Act 896. Hydrocarbons, natural petroleum gas, etc, are exempt from value-added tax (VAT).

The GNPC has a free carried interest in all PAs. Costs expended in carrying the GNPC in relation to its carried interest are set off against production and paid to the contractor as reimbursement. The GNPC has a right to acquire additional participating interest, which is subject to the GNPC making payment towards both exploratory and production expenses in relation to the additional interest only. The GNPC usually acquires additional interest in a PA through a subsidiary known as the GNPC Exploration and Production Company (the “GNPC Explorco”).

The GNPC also has pre-emption rights in the direct or indirect disposal of a contractor’s interest in a PA, and has the right to match, in monetary terms, any consideration agreed between a contractor and any purchaser.

Ownership of physical assets purchased, installed or constructed for petroleum activities may be transferred to the GNPC at the election of the GNPC, either when the full cost of the assets is being recovered, in accordance with the terms of the relevant PA, or upon termination of that PA.

Local content requirements to be observed in relation to upstream operations are found in the Petroleum (Local Content and Local Participation) Regulations, 2013 (LI 2204) as amended. The law now defines an IGC as one that is fully owned by a Ghanaian citizen and where at least 80% of its executive and senior management positions and 100% of the non-managerial and other positions are held by citizen(s) of Ghana.

IGCs are to be given preferred consideration in the award of petroleum rights for the execution of upstream petroleum operations. However, where no IGC is qualified for the petroleum right, an interested NGC may apply only if it affords an IGC at least 5% of the participating interest in the PA it intends to execute.

Where an NGC seeks to provide goods and services in the upstream sector, it is required to enter into a joint venture agreement with an IGC to incorporate a JVC in which the IGC must hold at least 10% equity. In a recent amendment of the local content law, the PC has now been empowered to direct NGCs and IGCs to enter channel partnerships and strategic alliance arrangements instead of a JVC where, in the opinion of the PC, such an arrangement will deepen local content and local participation and maximise technology transfer to the IGC. Also, the local content law now reserves some goods, services and products exclusively for IGCs.

A contractor or subcontractor is required to submit a local content plan stating the roles and responsibilities of the IGC, the extent of equity held by the IGC and the strategy for the transfer of know-how and tech to the IGC.

Other local content requirements include the opening and running of operations in a local bank account. Regarding insurance policies, satisfaction of the obligations under the National Insurance Act, 2021 (Act 1061) must be done through an indigenous brokerage firm or, where applicable, an indigenous reinsurance broker.

Discovery

The licence holder is required to notify the MoE and PC in writing within 48 hours of a discovery. The written notice should give sufficient details to enable the MoE and PC to identify the area of discovery. Within 100 days of the date of notification of the discovery, a comprehensive report on the particulars of the discovery must be submitted to the MoE and PC. The licence holder is then required to notify the MoE and PC of its decision as to whether the discovery merits appraisal. Where the decision is negative, the area of discovery will be deemed to have been relinquished. Where the decision is for an appraisal to be done, a schedule detailing the programme for the appraisal must be submitted to the MoE and PC.

Appraisal

Approval of the appraisal programme may be given by the MoE simpliciter or may be given subject to certain conditions. A licence holder may not enter any binding obligations regarding the appraisal of the discovery before receiving approval of the appraisal schedule from the MoE. The licence holder is required to revert to the MoE within 90 days of the date of approval of the appraisal schedule, providing a report on the commerciality of the discovery. Where the report indicates that the discovery is not commercial, the contract area encompassing the geological structure where the discovery is situated will be deemed relinquished within five days of receipt of the report.

Exploitation and Production

Where the appraisal finds the discovery to be commercial, an exploitation and production programme must be submitted for approval by the MoE, providing for the efficient, timely and beneficial exploitation of the discovered petroleum resource. Sufficient safeguards covering environmental and safety concerns are highly considered in the approval of a development programme. Other key considerations are plans for the employment and training of Ghanaians, and the financial capacity of the licence holder to execute the programme. The MoE will consider the recommendations of the PC and other state agencies, such as the Environmental Protection Agency, in arriving at a decision to approve or reject a production programme.

A licence holder is required to obtain a production licence from the PC before commencing the production or injection of petroleum. The production licence is subject to annual renewal.

Exploration Period

A PA stipulates the parameters under which a contractor may undertake exploration and production of a contract area. Every PA is required to stipulate a period of less than seven years as the exploration period. The exploration period must contain clear working periods under which specified works and expenditure are stated as the minimum obligations that must be satisfied before the expiry of the period. Upon satisfaction of the minimum obligations, a contractor is required to notify the PC in writing before commencing the next working period.

Extensions

If the contractor fails to satisfy the works and expenditure obligations under a particular working period, a request for an extension of that working period must be submitted to the PC before the expiry of that particular working period. The PC may not grant more than three extensions under an exploration period and must consider whether the obligations under a working period have been satisfied before approving a request for extension.

The exploration period may be extended only in the event of a discovery being made in the last year of the period, or in exceptional circumstances. Where an extension is sought because of a discovery in the last year, the extension must be restricted to the geological structure of the contract area where the discovery is made and may be extended only for an appraisal to be undertaken to determine the commerciality of the discovery. Either way, the MoE will grant the extension only following consultation with the PC. If the exploration period expires with no extension being granted, the PA will be deemed terminated.

Domestic Supply Obligation

Every PA is required to state a percentage of the petroleum entitlements that will be supplied domestically at the prevailing market price. The licence holder may export petroleum produced in so far as it does not breach its domestic supply obligation. The domestic supply is calculated as the total volume of entitlement of the state and of the GNPC, and the total volume of local demand for petroleum products. A licence holder is required to supply a volume of petroleum based on the pro rata share of the petroleum entitlements.

In a time of war or other emergency that threatens the energy supplies of the country, the MoE may direct that all or part of the petroleum produced under a PA be supplied at the prevailing market price to the state or other agency of the state.

Liabilities

The liabilities arising out of petroleum activities undertaken in satisfaction of obligations under a PA are generally borne jointly and severally by the contractor or contracting parties, as the case may be, and the parties undertake to indemnify the state and the GNPC against all such liabilities. As regards claims by subcontractors that are brought in by a contractor to undertake a task, the liability is to be borne jointly and severally by the contractor or contractor parties.

However, all the contracting parties, including the GNPC, may be liable for a subcontractor’s default in satisfaction of an obligation of that party. In such an event, that party is jointly and severally liable with that subcontractor or, where applicable, with the employer of that third party.

A party to a PA may only transfer its interest to another entity with the consent and approval of the Minister of Energy. In granting consent to an assignment, the Minister may consider the status of satisfaction of obligations of the transferring party and the suitability and qualifications of the assignee and approve the request for consent, reject it, or impose any conditions to be satisfied by the parties before the request will be granted. A request to the Minister for consent to assign may take between three and six months.

The GNPC has pre-emption rights in the direct or indirect assignment of a contractor’s interest in a PA and has the right to match in monetary terms any consideration agreed between a contractor and any purchaser.

There is currently no specific procedure to be followed or restrictions to be adhered to in respect of a request by a contractor for consent to assign.

Ghana does not currently have restrictions on production rates. The state is not party to any international petroleum pacts that require it to ensure restrictions on the rates of production of oil products.

The business or commercial activities of the downstream industry in respect of crude oil, gasoline, diesel, liquefied petroleum gas, kerosene and other designated petroleum products are importation, exportation, re-exportation, shipment, transportation, processing, refining, storage, distribution, marketing and sale.

The NPA and the Downstream Sector

The NPA may grant a licence or permit to Petroleum Service Providers (PSPs). A PSP may be a citizen of Ghana, a body corporate registered under the Companies Act, 2019 (Act 992), a partnership registered under the Incorporated Private Partnership Act, 1962 (Act 152), or a foreign company or foreign individual in a registered joint venture with a citizen of Ghana or a Ghanaian company (ie, a company incorporated in Ghana in which a citizen of Ghana has at least 51% of the issued shares). The NPA Board grants these licences and permits on terms and conditions that it considers fit. The requirements to obtain a licence may differ slightly, depending on the business or commercial activity that a person intends to engage in, but the following requirements are commonly applied:

• a detailed business plan for a minimum of five years;
• a corporate environmental policy culminating in the grant and issue of an environmental permit by the EPA;
• evidence of local participation – at least 50% (or 51%, as the case may be) shares are to be held by Ghanaian citizens;
• business registration documents, such as a certificate of incorporation, certificate to commence business, company regulations, Forms 3 and 4 from the Companies Registry, tax clearance certificates and annual returns, as filed at the Registrar General’s Department, where applicable;
• minimum capital requirement (where applicable);
• evidence of relevant infrastructure availability; and
• evidence of an agreement or memorandum of understanding (MOU) to off-take products to be manufactured or sold, where applicable.

In most cases, a provisional licence will initially be granted and issued to the applicant, to enable it to obtain further documents/permits and to complete set-up. A person may not commence business with a provisional licence unless otherwise authorised.

The NPA Act prohibits unfair competition and the formation of cartels and monopolies in the petroleum industry, and enjoins the board of the NPA to ensure compliance with the Protection Against Unfair Competition Act, 2000 (Act 589).

The Midstream Oil and Gas Sector

Ghana’s midstream oil and gas sector is not as developed and established as the upstream and downstream sectors. It appears that there are discussions to hand over the regulation of the midstream sector to the NPA, especially the end-user part of that market or industry. Even though legislation is yet to be passed in this regard, the NPA appears to be readying itself for that role and has created a Midstream Department. According to information on its website, the newly established department will regulate all activities in natural gas operations which stem from processing and storage, through to transmission and distribution. It will also perform all pricing (economic) functions relating to natural gas, as well as offering technical support and grant licences and permits to all service providers that wish to undertake natural gas activity.

By Act 541, EC grants licences for natural gas processing, LNG facilities, natural gas wholesale supply, natural gas transmission, natural gas distribution and natural gas sale. In 2015, the MoE designated the GNPC as the gas sector aggregator on behalf of the government of Ghana. In this role, the GNPC is required to act as the sole buyer and seller of bulk natural gas. There are, however, reports that the Presidency, as of 11 May 2020, has arrogated the role of gas sector aggregator to the Ghana National Gas Company Ltd (GNGC).

The NGTU may not discriminate between shippers, bulk customers and distribution companies. Persons who require access to the NGITS are given access subject to the terms and conditions stipulated in the agreements they have with the NGTU and approved by the EC, with the tariffs approved by the Public Utilities Regulatory Commission (PURC).

Draft Natural Gas Transmission Access Code

In August 2014, the EC published a Draft Natural Gas Transmission Access Code, pursuant to its powers under Act 541, to establish the requirements, procedures, practices and standards that govern how a shipper interconnects to the NGITS and the general terms and conditions for the provision of transmission services by the NGTU.

Agreements to Access the NGITS

Agreements for access to the NGITS may be entered with the NGTU, including a Framework Agreement, a Network Connection Agreement and a Gas Transmission Services Agreement.

The Framework Agreement is typically entered into between a shipper and the NGTU, and sets out the procedure for obtaining and terminating transmission and interconnection services for natural gas, the method of response to a request for the utility’s services, and maps and diagrams of the utility’s transmission facilities in the country. The Network Connection Agreement defines the terms and conditions between the NGTU and the shipper for the physical connection of the shipper’s facility to the NGITS for the sale and delivery of gas, and the Gas Transmission Services Agreement defines the terms and conditions between the NGTU and the shipper for the transportation of gas through the NGITS.

Tariffs

Tariffs are derived by calculation from the Approved Tariff Methodology of the PURC.

The two regulators of the downstream/midstream industry are the NPA and the EC. Downstream licences are typically granted pursuant to an application by persons interested in engaging in a business or commercial activity in the industry.

A licence or permit may be granted to a citizen of Ghana, a body corporate registered under Act 992, a partnership registered under Act 152 or a foreign company or foreign individual in a registered joint venture with a citizen of Ghana or a Ghanaian company (ie, a company incorporated in Ghana in which a citizen of Ghana has at least 51% of issued shares).

The NPA Board grants these licences and permits on terms and conditions that it considers fit. The requirements to obtain a licence may differ slightly depending on the business or commercial activity that a person intends to engage in, but the following are typically required:

• a detailed business plan for a minimum of five years;
• a corporate environmental policy culminating in the grant and issue of an environmental permit by the EPA;
• evidence of local participation – at least 50% (sometimes 51%) shares are to be held by Ghanaian citizens;
• business registration documents – eg, certificate of incorporation, company regulations, minimum capital requirement (where applicable);
• evidence of infrastructure requirement; and
• evidence of an agreement or MOU to off-take products to be manufactured or sold (where applicable).

NPA Permits/Licences

The major permits/licences include but are not limited to the following:

• Oil Marketing Company (OMC);
• LPG Marketing Company (LPGMC); and
• bunkering services companies.

Natural Gas Licences Issued by the EC

• Natural Gas Processing Licence;
• Natural Gas Transmission Licence;
• Natural Gas Distribution Licence;
• Natural Gas Wholesale Supply Licence;
• Natural Gas Sales Licence; and
• Natural Gas Bulk Customer Permit.

Typical fiscal terms in the downstream industry come in the form of licence/permit application fees and renewals of licences/permits, operating fees, taxes on specific products and income tax. There may be penalties/sanctions for various offences.

The ex-pump price build-up for OMCs and LPGMCs, eg, as of 16 June 2024, takes the following into consideration.

Indicative maximum price (ex-pump price) is as follows.

• Ex-refinery price – core:
1. marine mix;
2. cost of blue dye; and
3. recovery margin.
• Ex-refinery price:
1. energy debt recovery levy;
2. energy fund levy; and
3. fuel-marking margin.

All the above together are ex-depot.

• Ex-depot:
1. UPPF;
2. marketers’ margin;
3. dealers’ (retailers’/operators’) margin; and
4. premix admin costs.

Taxes/levies and margins applicable to marine gasoil (foreign), gasoil to the mines and rigs (excluding UPPF):

• energy debt recovery levy;
• road fund levy;
• energy fund levy;
• price stabilisation and recovery levy;
• primary distribution margin;
• BOST margin;
• fuel-marking margin;
• special petroleum tax;
• marketers’ margin;
• dealers’ (retailers’/operators’) margin;
• sanitation and pollution levy;
• energy sector recovery levy; and
• distribution compensation/promotion margin.

A company is liable to pay income tax from its profits. Certain products have levies and taxes imposed on them by law; eg, petrol has many levies and taxes built into its price, including the energy debt recovery levy, the road fund levy, the energy fund levy and the price stabilisation levy, among others.

Supply of the following crude oil and hydrocarbon products is exempt from VAT:

• petrol;
• diesel;
• liquefied petroleum gas;
• natural petroleum gas; and
• kerosene.

An application for any of the downstream licences must meet the conditions for the licence before it can be granted. There is no national oil company in the downstream sector. Ghana Oil Company (GOIL) is a public company licensed to market petroleum products, while the Tema Oil Refinery is a state-owned oil refinery. There is one public utility, the GNGC, which must obtain a licence from the EC to operate. It is responsible for the NGITS. There are no special rights.

The NPA Act requires a foreign individual or foreign company to be in an incorporated joint-venture relationship with a citizen of Ghana or a Ghanaian company to qualify for a licence. The minimum equity that a Ghanaian must have in a registered joint venture is not stated in the Act. The NPA in its public notices on licensing has stated that a Ghanaian must have a minimum of 50% (in some cases 51%) equity in the registered joint venture.

The conditions of the licences differ depending on the products they cover and the activity for which they are issued. There are a few common trends in the conditions of the granting of a licence, including non-discrimination, obtaining approval for fees and charges, and displaying fees in the local currency. Persons granted licences are to sell, supply, store or transport petroleum products to all persons without discrimination. Licences must be displayed in a prominent place on the business premises of the licence holder. A licence may be revoked, suspended or not renewed in cases where the laws are not being satisfactorily complied with; where the activity of the licence holder poses a threat to public health, safety and security; where service standards are unsatisfactory; or where there has been a failure to comply with the conditions of the licence.

Private investors do not have condemnation rights. They would have to negotiate with landowners, pay them to acquire the requisite leasehold interest in the land to be used for the project and register the parcel to acquire a land title certificate.

The government by virtue of the Land Act, 2020 (Act 1036) may compulsorily acquire land for use by statutory corporations, subject to the prompt payment of adequate compensation.

The NPA Act requires that the NPA grant licences for the transportation of petroleum products. The licensee shall transport petroleum products through a means which the NPA may determine on condition that the licensee enters into an agreement to provide services without discrimination to its customers, and charge for bulk transportation of petroleum products through pipeline systems, barges, rail tanker wagons and bulk road vehicles.

The NPA Act requires that a licensee shall not discriminate in the provision of its services to third parties. Third-party access is usually acquired by way of a direct agreement between the service provider and the third party. The holder of a licence either to sell, store, supply or transport petroleum products shall not discriminate as to whom it provides such services, as a condition of the grant. The EC has a draft access code to regulate access to the NGITS under the control of the NGTU.

To the extent that a licensee is not creating a cartel or monopoly which is prohibited by law, there are no prohibitions on an entity providing services in multiple segments of the market.

Beyond procuring the requisite licence, there are no restrictions on product sales into the local market. An OMC licence entitles the holder to procure and sell petroleum products to bulk consumers and to the general public at retail stations and outlets. There are also no express restrictions on ownership, nor limitations on concurrent ownership. However, based purely on a policy standpoint, the regulator may decline a licence application for a particular activity. Three companies have been licensed to operate refineries in Ghana. The Tema Oil Refinery is owned by the state, while the other two are privately owned.

The laws and regulations that govern the export of crude oil, natural gas and petroleum products are as follows:

• the NPA Act;
• the Energy Commission Act, 1997 (Act 541);
• the Natural Gas Distribution and Sale (Technical and Operational) Rules, 2007 (LI 1911);
• the Natural Gas Distribution and Sales (Standard of Performance) Regulations, 2007 (LI 1912);
• the Natural Gas Transmission Utility (Technical and Operational) Rules, 2007 (LI 1913);
• the Natural Gas Transmission Utility (Standards of Performance) Regulations, 2008 (LI 1936); and
• the Natural Gas Pipeline Safety (Construction, Operation and Maintenance) Regulations, 2012 (LI 2189).

Under both the NPA Act and Act 541, a licence is granted by the NPA, and the EC shall not be transferred to another person without the prior approval of the board of the NPA or the EC. The transferee must meet the requirement for the granting of a licence. Where a transfer is sought, the transferor needs to obtain the prior approval of either the NPA or the EC, which will assess the technical and financial capacity of the transferee and decide as to whether the transferee is a fit and proper licensee.

Any enterprise in Ghana involving a foreigner must be registered with the Ghana Investment Promotion Centre (GIPC) under the provisions of the Ghana Investment Promotion Centre Act, 2013 (Act 865). The foreign partner must invest foreign capital of not less than USD200,000 in cash or capital goods relevant to the investment, or a combination of both, by way of equity participation. The NPA has stipulated a minimum of 50% (51% in some cases) Ghanaian equity participation in the joint venture.

The GIPC grants a foreign investor some investment guarantees, including prohibition against discrimination; guarantees against expropriation; transfer of capital, profits and dividends and personal remittances; speedy dispute resolution procedures; and automatic expatriate quotas for work permits. Where it becomes necessary for an enterprise to be acquired by the state, under the national interest or for a public purpose, fair and adequate compensation must be paid without undue delay, in convertible currency. Disputes between a foreign investor and the government which are not resolved amicably will be submitted to arbitration within six months under the rules of procedure for arbitration of the United Nations Commission of International Trade or within the framework of a bilateral investment treaty to which Ghana and the country of the investor are parties.

There are not any current sanctions in place regarding the investment of oil and gas assets in foreign jurisdictions.

The principal environmental laws relating to the exploration, development and production of oil and gas are as follows:

• the Environmental Protection Agency Act, 1994 (Act 490);
• the Environmental Impact Assessment Regulations, 1999 (LI 1652);
• the Petroleum Commission Act, 2011 (Act 821);
• the Petroleum (Local Content and Local Participation) Regulations, 2013 (Act 2204);
• the Petroleum (Exploration and Production) (Health, Safety and Environment) Regulations, 2017 (LI 2258);
• the Petroleum (Exploration and Production Act), 2016 (Act 919);
• the Petroleum (Exploration and Production) (General Regulations), 2018 (LI 2359);
• the Ghana National Petroleum Corporation Act, 1983 (Act 64);
• the Ghana Maritime Authority Act, 2002 (Act 630); and
• the NPA Act.

Environmental Protection Agency (EPA)

The EPA is the lead statutory agency established under the Environmental Protection Act, 1994 (Act 490) as an independent entity to advise the minister responsible for the environment on the formulation of policies regarding the environment, and in particular to make recommendations for the protection of the environment and ensure compliance with environmental impact assessment procedures in the planning and execution of development projects, including existing projects. LI 1652 gives comprehensive legal coverage to the Ghana Environmental Impact Assessment procedures and requires that all developmental activities likely to have an adverse impact on the environment must be subject to an environmental assessment. In particular, LI 1652 states at Regulation (1) that no person shall commence any of the undertakings specified in Schedule (1) (including crude oil and natural gas production and facilities) without having been issued with an environmental permit.

Petroleum Commission

The PC was established to promote planned, well-executed, sustainable and cost-efficient petroleum activities to achieve optimal levels of resource exploitation for the overall benefit and welfare of citizens. Significantly, it requires compliance with health, safety and environmental standards in petroleum activities, in accordance with applicable laws, regulations and agreements.

Act 919 also contains provisions relating to health, safety and the environment, with the object of providing for and ensuring safe, secure, sustainable and efficient petroleum activities in order to achieve optimal long-term petroleum resource exploitation and utilisation for the benefit and welfare of the people of Ghana. Act 919 further requires that petroleum activities should be carried out in such a manner as to ensure that they satisfy safety requirements, standards and precautions, and it imposes an obligation on contractors, subcontractors, licensees and the GNPC to suspend petroleum operations in cases where an accident or emergency may lead to or has resulted in loss of life or personal injury, pollution or major damage to property.

The Petroleum (Exploration and Production) (General Regulations) 2018 (LI 2359) impose obligations on contractors, subcontractors and licensees to carry out petroleum activities in an environmentally sustainable manner. The regulations require the minister for petroleum to carry out a strategic assessment of any programme for opening areas for petroleum activities, including assessing the impact of the petroleum activities on the environment, trade, fisheries, shipping, maritime and other industries, and risk pollution.

The Petroleum (Exploration and Production) (Health, Safety and Environment) Regulations, 2017 (LI 2258) specifically regulate the impact of the exploration, development and production of oil and gas on the environment. The regulations aim to prevent the adverse effects of petroleum activities on health, safety and the environment; to provide the minimum health, safety and environmental requirements for contractors, subcontractors, licensees, the corporation and any other person engaged in a petroleum activity; to promote high standards for health, safety and the environment in carrying out a petroleum activity; to ensure the systematic implementation of measures to comply with requirements and achieve goals in an applicable working environment; and to contribute to the development and improvement of health, safety and environmental standards.

Ghana National Petroleum Corporation

The GNPC was established as the national oil company in the upstream sector pursuant to PNDCL 64. One of the key objects of the GNPC is to ensure that the exploration, development, production and disposal of petroleum resources in Ghana are conducted in such a manner as to prevent adverse effects on the environment, resources and people of Ghana.

Ghana Maritime Authority

The responsibilities of the Ghana Maritime Authority include monitoring, regulating and co-ordinating activities in the maritime industry, issuing safety permits, ensuring the protection of the marine environment and responding to marine environment incidents. Accordingly, a contractor, subcontractor or licensee that intends to carry out offshore exploration, development and production of oil and gas must secure the appropriate permit from the Ghana Maritime Authority.

National Petroleum Authority

The NPA was established to regulate, oversee and monitor the downstream petroleum industry in Ghana. The NPA is empowered by Act 691 to grant or revoke licences for the transportation of crude oil, crude oil products and designated products. Pursuant to Act 691, the NPA grants licences for the design, procurement, construction, operation and maintenance of all infrastructure and facilities, including refineries, process plants, petrochemical plants and petroleum transportation. Section 14 of Act 691 requires that, as a condition precedent to granting a licence, the NPA must ensure that the EPA has issued the applicant with the appropriate permit. As part of efforts to strengthen environmental protection, the NPA issues periodic health, safety and environmental standards for players in the downstream sector. Typically, the NPA issues national specifications for maximum sulphur content levels for imported petroleum products in Ghana.

Section 81 of Act 919 requires a contractor, subcontractor or licensee who intends to undertake petroleum activities to consider and give effect to the environmental principles prescribed in Act 490, the subsidiary legislation made under that Act and any other applicable enactments.

Requirements

A private investor, contractor, subcontractor or licensee that intends to carry out a petroleum activity, whether in the upstream, midstream or downstream sector, is required to satisfy several environmental obligations. Act 490 and LI 1652 provide that a person who is required to register an undertaking and obtain an environmental permit from the EPA must submit an environmental assessment registration application form to the agency.

A prescribed fee determined by the EPA must be paid by the private investor. In addition to any information that an applicant/private investor is required to provide on the application form, LI 1652 empowers the agency to require an applicant to submit any other information on the undertaking that it considers necessary for the initial assessment of the environmental impact of the undertaking.

An evaluation is conducted by the EPA to ascertain whether an environmental impact assessment (EIA) is required for the major petroleum project. In situations where an EIA is required, the private investor is required to conduct a scoping report (there will be terms of reference, which may include a public hearing) and an environmental impact assessment study.

The draft Environmental Impact Statement is reviewed by the EPA with other regulators (the PC, the EC, the NPA) and the public. Upon reviewing the draft Environmental Impact Statement, the EPA together with the appropriate regulator will decline, approve, issue recommendations, or direct the private investor to revise the draft Environmental Impact Statement before it can be finalised and approved. After the Environmental Impact Statement is finalised, the EPA issues an environmental permit.

A committee duly constituted for the review of the EIA will typically take 90 days to complete its work.

Regulation 35 of LI 2258 provides that the corporation or any other person engaged in a petroleum activity must do the following:

• before coming onshore, engage the communities in which the licensed area is situated, in consultation with the appropriate authorities, to ensure that landowners are adequately informed of the type of operation to be undertaken, the approximate duration of the operation and the potential damage that could be caused to property;
• obtain the required approvals and permits before the commencement of upstream petroleum activity onshore; and
• notify the PC in writing of their intentions at least three months before coming onshore.

Section 82 of Act 919 provides that a person shall not conduct petroleum activities in an area unless the required EIA has been conducted or any other relevant environmental statutory requirement as prescribed in Act 490 and other applicable enactments has been complied with, including reconnaissance activities under Section 9; exploration drilling under Section 27; construction of transportation, treatment and storage facilities under Section 38; decommissioning under Section 43; and plugging and abandonment of a well under Section 46. Section 7 of Act 919 requires a strategic impact assessment to be conducted before the opening of a new area.

Act 919, LI 2258 and the EPA’s Guidelines for Offshore Development provide the requirements applicable to offshore development.

Act 919 provides that a person may not conduct petroleum activities in an area unless the required EIA has been conducted or any other relevant statutory requirements as prescribed in the Environmental Protection Agency Act, 1994 (Act 490) and other applicable enactment have been complied with, including reconnaissance activities; exploration drilling, development and operation; the construction of transportation, treatment and storage facilities; decommissioning; and plugging and abandonment of a well, among other offshore developments.

LI 2258 gives the basic requirements for an offshore development. These include setting up a Health, Safety and Environment (HSE) management system and submitting an HSE plan for every stage of the activity three months prior to actual implementation by a contractor, subcontractor, licensee, the corporation or any other person.

Operationally, LI 2258 provides for risk and emergency-preparedness analysis, the identification of hazard and accident situations, and the assessment of risk of deliberate attacks or security threats. The possible causes of incidents or hazards, accident sequences, potential consequences and risk-reduction analyses must be undertaken and implemented.

The EPA’s Guidelines for Offshore Development provide the specific actions required of the EPA, persons undertaking offshore development, the public and other key stakeholders in petroleum activities.

The Plan

Section 43 (1) of Act 919 provides that a licensee or contractor that operates a petroleum facility must submit a decommissioning plan to the Minister of Energy, covering all petroleum facilities described in the plan of development and operation that are operated by the licensee or contractor. The decommissioning plan must include the following:

• an overview of all the facilities and wells, including locations, depths and types of material;
• the anticipated date for permanent cessation of the use of each facility or the date of expiry of the relevant licence or PA; and
• an overview of the field history, including:
1. a description of all wells, including those already plugged and abandoned;
2. plans for the plugging and abandonment of all other existing wells in the contract area;
3. information on the deposit of drill cuttings and other materials; and
4. production and the possibilities for continued production.

Timing and Conditions

Except where the Minister of Energy determines otherwise, the decommissioning plan must be submitted not earlier than five years and not later than two years before the date on which the petroleum facility to which the decommissioning plan relates is expected to cease operation permanently, or on which the licence or the PA to which the decommissioning plan relates will expire. The decommissioning plan must contain the necessary information and evaluations for the minister to make a decision relating to disposal of the petroleum facilities. The minister may approve the decommissioning plan and is required, upon approval, to set out a schedule for the implementation of the plan. Where the minister does not approve the decommissioning plan, the minister is required to notify the contractor or licensee in writing, stating the reasons and indicating the conditions that must be satisfied by the contractor or licensee, or a new or amended decommissioning plan submitted to the minister.

Contribution

Furthermore, the contractor is required to contribute to the decommissioning fund to be used to execute the approved decommissioning plan at the time indicated for decommissioning. The amount to be contributed to the fund will generally take into consideration the cost of decommissioning, restoration of the site and abandonment operations.

Requirements

LI 2258 provides general requirements for decommissioning, including the permanent plugging and abandonment of wells, decommissioning planning, and decommissioning, abandonment and removal of a petroleum facility. The MoE and the PC have developed guidelines for decommissioning plans, but these have yet to be published.

Liability

On the question of liability, LI 2359 also provides that, where implementation of an approved decommissioning plan involves the abandonment of the whole or parts of a facility, the contractor or licensee concerned is liable for any loss or damage caused in connection with the abandonment or part abandonment of a facility after the termination or expiry of the PA or the licence. However, where the minister decides otherwise, or the contractor or licensee has paid the agreed compensation, or the facility has been transferred to the GNPC in accordance with Act 919, the contractor or licensee will not be liable.

Under LI 2359, where more than one person is liable for any default in relation to decommissioning obligations, those persons are deemed under the regulation as being jointly and severally liable for financial obligations, unless otherwise decided by the minister. Under Section 93 of Act 919, a company that fails to submit a decommissioning plan as specified under Section 43 of Act 919 is liable to the PC for an administrative penalty for each day that the decommissioning plan is not submitted, or a summary conviction.

Ghana does not have any specific laws relating to climate change. However, there is a Nationally Determined Contribution (NDC) under the Paris Agreement (2020–2030) that provides the national development strategy to build a resilient society to adequately withstand the impacts of climate change and contribute to mitigating global emissions. Ghana has developed 19 policy actions in ten priority areas. The 19 policy actions translate into 13 adaptations and 34 mitigation programmes of action (measures). One of the expected outcomes is an accelerated sustainable energy transition.

Regulation 38 of LI 2258 provides that a contractor, subcontractor, licensee, corporation or any other person engaged in a petroleum activity may not drill a well in a prohibited area unless they are authorised to do so by the PC. The prohibition indicated under Regulation 38 is intended to safeguard the environment and answer any other concerns that may arise in the exploration, development and production of oil and gas in Ghana. The legal regime for regulating the exploration, development and production of oil and gas does not specifically set out any rules regarding permitted local government restrictions and prohibitions by local government actions. It must be noted, however, that local governments (municipal and district assemblies) make representations during the EIA stage, and this may impose some restriction on the proposed activity.

The Local Government Act, 2016 (Act 936) and the Land Use and Spatial Planning Act, 2016 (Act 925) provide that a building permit and a development permit are required under the relevant district planning authority to engage in oil and gas development onshore. Concerning the downstream sector, the Hydrological Services Department (a government agency) assesses, approves or declines hydrological reports submitted by prospective developers of petrol filling stations.

The National Energy Transition Framework (NEFT) was launched in 2020, as a long-term plan to achieve net-zero emissions in the energy sector by 2070. This aligns with Ghana’s commitments to her NDCs under the Paris Agreement and Conference of Parties (CoP 26). The NEFT has objectives to identify practical ways to transition the energy sector, ensure a fair and just transition for all Ghanaians, understand the economic impact of the transition, set mid-term and long-term goals to achieve a net-zero economy and estimate the costs involved. The NEFT builds upon existing energy policies such as the Renewable Energy Master Plan and the Gas Master Plan (GMP). The NETF thus consolidates all the directives enshrined within these policies and situates them in the direction of achieving net-zero emissions by 2070.

The Emissions Levy Act, 2023 (Act 1112) imposes a tax of GHS100 per tonne of carbon dioxide equivalent emissions on specified sectors such as construction, manufacturing, mining, oil and gas, electricity and heating. Act 1112 also applies to emissions from motor vehicles with internal combustion engines.

Since the commencement of commercial production of oil and gas in 2010, Ghana has maintained a ‘no flaring or venting of natural gas’ policy. Act 919 brought in explicit restrictions on flaring, venting and fugitive emissions from oil and gas-producing assets in the upstream oil and gas sector. Decarbonisation of oil and gas production has become part of the emission reduction targets in the energy sector, with oil and gas companies in the upstream sector being required to adhere to specific regulations relating to injection of carbon dioxide, injection of petroleum, and gas utilisation.

According to the Ghana Energy Transition and Investment Plan (GETIP), new oil refineries fuelled by gas will also be expected to have the ability to capture carbon and store it to reduce emissions from oil refining processes. It is anticipated that by 2060, all refineries’ processes will use carbon capture and storage to minimise CO2 emissions.

The drive towards energy transition has highlighted concerted efforts towards reducing traditional fossil fuel dependency, opting for cleaner alternatives. Policies such as the GMP, National LPG Promotion Policy and Fuel Quality Policy, and the use of biofuels, have gained considerable momentum in recent years. While Ghana is still largely dependent on fossil fuels for transportation and industry, it is anticipated by the GETIP that by 2050, more than 70% of road vehicles will be electricity and hydrogen fuelled.

There are plans to shift from LPG to clean fuels for cooking and water heating that will drive decarbonisation in buildings. Cooking will be decarbonised through a shift from traditional biomass and LPG to improved biomass and electric cooking. It is expected that by the 2030s, electric cooking will emerge as a key low-carbon solution in urban households and by 2060 electric cooking will dominate in both urban and rural households, phasing out LPG.

Current upstream interest relates to the ownership interest in petroleum that is in the ground, and to the right to explore, develop and produce that petroleum. Accordingly, the legal and regulatory regime has been designed to regulate pertinent legal issues relating to the exploration, development and production of oil and gas. It is submitted that, if unconventional oil and gas sources such as shale, heavy oil and coal-bed methane were to be discovered in commercial quantities, it would become necessary for an appropriate legal and regulatory regime to be put in place to address the relevant issues pertaining to the exploration, development and production of unconventional oil and gas.

There is no regime in place that specifically addresses LNG projects. However, there is legislation of general application that is relevant to any LNG project.

The Ghana Maritime Authority Act, 2002 (Act 630) (as amended by Act 825) empowers the Ghana Maritime Authority to issue permits to operate a vessel, site an installation or storage facility, or lay a pipeline, cable, equipment or any other infrastructure, facility or device on the seabed in an area within Ghana’s maritime jurisdiction.

The Ghana Shipping Act, 2003 (Act 645) provides that prior written approval from the minister responsible for transport is required to import a vessel into Ghana.

Act 541 provides that a licence is required from the EC to engage in a business or commercial activity for the transmission, wholesale supply, or distribution and sale of natural gas. Act 541 empowers the EC to issue licences for the commencement of construction, installation, operation or modification of a pipeline or infrastructure within the midstream sector of the petroleum industry.

There are no other aspects of the petroleum industry worthy of mention.

The major material change in regulation is the Emissions Levy Act, 2023 (Act 1112).

Act 1112) came into effect on 1 January 2023. Act 1112 imposes an emissions levy on the carbon dioxide equivalent emissions from specified sectors such as construction, manufacturing, mining, oil and gas, electricity and heating, and emissions from internal combustion vehicles. The levy on carbon dioxide equivalent emissions from the specified sectors is GHS100 per tonne of emissions per month, and the levy on emissions from motor vehicles is GHS75 to GHS300 per annum depending on the internal combustion engine capacity of the vehicle.