Chief Justice Mrs Justice Georgina Theodora Wood has underscored the need for the country to come up with a well-defined legal framework for public-private partnership (PPP) arrangements and structures.
“There are a plethora of laws with PPP impact in Ghana, though most are uncoordinated. The uncertainty of the legal regime for PPPs in Ghana, results not only in inconsistent approaches to the participation of the private sector in the delivery of PPPs, but it also constitutes a potential risk that may adversely affect the appetite of private sector partners to participate in PPP projects in Ghana,” she said.
Bar Conference
Mrs Justice Georgina Wood made the call at the opening ceremony of the annual general conference of the Ghana Bar Association (GBA) in Ho yesterday.
The five-day conference is on the theme, “The Role of the Legal Profession in Developing Public Private Partnership Regulatory Framework for National Development.”
Ghana’s national policy document, she said, defined PPP as “a contractual arrangement between a public entity and a private sector party, with clear agreement on shared objectives for the provision of public infrastructure and services traditionally provided by the public sector”.
It was commendable, she said, that the Ministry of Finance had engaged the services of a Ghanaian law firm as lead consultants for the preparation of legislation governing PPPs in Ghana, adding that a draft PPP law had been prepared and was undergoing stakeholder consultations.
“The role of the legal profession in developing a regulatory framework for PPPs for national development is critical to avoiding pitfalls and creating the right conditions for success,” she said.
PPPs
For the successful implementation of the PPPs scheme in Ghana, she observed, the regulatory framework must, among others, seek to achieve a right balance between the interests of both the public and private sector partners and also clearly delineate the rights and obligations of the parties.
The main reason for that, she said, was to foster an enabling environment constituted by stable, reliable long-term laws that were conducive to attracting investors.
“It is important that the appropriate legal framework in place is such as would minimise both real and perceived risks by providing legal safeguards with clear and predictable rules for private investment and security of tenure,” she opined.
More so, she said, reasonable assurances guaranteeing the continuity of operations over the life of the project was imperative as government interference and frequent and sudden regulatory changes might scare away potential investors in other areas or deter market players from making sufficient investments.
She advised members of the GBA that “it is important that we acquaint ourselves with the draft provisions and make the relevant input before its final passage into law”.
Mrs Justice Wood said PPP arrangements and contracts were very complex and that effective drafting would demand highly accomplished legal expertise and a strong understanding of both general and sector-specific laws including the new PPP under consideration.
Legal framework
“As such, lawyers and law firms that can offer these services to clients on both sides of the partnership will be high in demand. Also lawyers with the ability to add value through their understanding of complicated legal and regulatory frameworks and difficult negotiations will see no slowdown in their workloads for the foreseeable future,” she predicted.
It followed, she stressed, that for lawyers and the legal profession to be able to play their role effectively, there was the need to forge a radical change in the traditional focus and culture of legal education and practice.
“Consequently, legal instruction must not continue to focus solely or purely on the traditional law subjects, legal rules, statutes and decided cases only, but rather begin to bring to the fore, the economic, political, financial and social underpinnings that make the legal rules and principles more relevant to society,” she advocated.
For her, in effect, legal education and the legal profession must appreciate, even more, the relevance of and interplay between economics, finance, project financing and execution, as well as societal needs.
“It is only then that lawyers will begin to be at ease with specialised legal documents including PPP Concession Agreements that they might be tempted to consider far too technical for their comprehension. In this regard, there is the need for lawyers to again acquaint themselves with the rules, customs and practices of international trade and finance,” she emphasised.
By Victor Kwawukume/Daily Graphic/Ghana
