SECURITIES INDUSTRY ACT, 2016 Act 929

ARRANGEMENT OF SECTIONS

Section

PART ONE—SECURITIES AND EXCHANGE COMMISSION

Establishment

1. Establishment of the Commission
2. Object of the Commission
3. Functions of the Commission
4. Governing body of the Commission
5. Tenure of office
6. Meetings of the Board
7. Disclosure of interest
8. Establishment of committees
9. Allowances

Administration

10. Ministerial directives
11. Appointment of Director-General
12. Appointment of Deputy Directors-General
13. Appointment of other staff

Finances of the Commission

14. Funds of the Commission
15. Levies payable to the Commission
16. Accounts and audit
17. Annual report and other reports

Administrative Hearings Committee

18. Establishment of Administrative Hearings Committee
19. Submission of complaints and examination of issues
20. Representation before the Hearings Committee
21. Proceedings of the Hearings Committee
22. Referral decisions of Hearings Committee of the Board
23. Appeals from decisions of Hearings Committee

Production of Books and Documents

24. Power of Commission to require production of books
25. Action on production or non-production of books

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26. Searches
27. Non-disclosure of information from books
28. Incriminating statement
29. Penalties
30. Period for keeping records and books
31. Admission in evidence of copies or extracts of books
32. Savings for lawyers

Disclosure of Information

33. Disclosure of acquisition or disposal of securities to the Commission
34. Suspicion regarding breach of specified provisions

Investigation and Inspection

35. Investigation of certain matters
36. Inspection by Commission

Orders of the Court and Statements of Principle

37. Power to request bank account records
38. Power of court to make certain orders
39. Statements of principle

Exchange of Information and Co-operation

40. Exchange of information and mutual assistance
41. Co-operation in securities regulation

PART TWO—SECURITIES EXCHANGES AND OTHER SELF-REGULATORY ORGANISATIONS

Securities Exchanges

42. Establishment of securities exchanges
43. Power of Commission to approve a securities exchange
44. Approval by Commission of amendments to rules
45. Provision of assistance by securities exchange to the Commission
46. Disciplinary power of the Commission
47. Observance or enforcement of rules of a securities exchange
48. Directives to a securities exchange
49. Prohibition of trading in particular securities

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Self-regulatory Organisations

50. Recognition of a self-regulatory organisation
51. Rules of a self-regulatory organisation
52. Restriction on decision-making
53. Obligations of officers of a self-regulatory organisation
54. Directives by Commission to self-regulatory organisation
55. Termination of arrangements and revocation of recognition
56. Amendments to the Constitution of a self-regulatory organisation
57. Protection of self-regulatory organisation
58. Annual Report of a self-regulatory organisation

PART THREE—UNIT TRUSTS AND MUTUAL FUND

Unit Trusts

59. Prohibition to operate unit trust without licence
60. Manager and trustee
61. Trust deed
62. Application for licence to operate a unit trust
63. Licence to operate a unit trust
64. Prohibition of activities in unlicensed unit rust
65. Interest of investors in unit trust and pricing of unit
66. Scheme particulars
67. Redemption of units
68. Duties and powers of a manager of a unit trust
69. Duties and powers of trustee
70. Prohibited transactions by manager

Mutual Fund

71. Prohibition of operation of mutual fund without licence
72. Appointment of a manager and custodian
73. Application for a mutual fund licence
74. Licence for operation of mutual fund
75. Interest of an investor in a mutual fund
76. Exemption from specific provisions of the Companies Act
77. Regulations of a mutual fund
78. Directions by directors of a mutual fund

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79. Custodian of mutual fund and its duties
80. Duties of directors of a mutual fund
81. Duties of a manager of a mutual fund company

Spread of Investment and General Provisions on Unit Trust and Mutual Fund

82. Spread of investments and restrictions
83. Prohibition of increase in charges, fees and other costs
84. Unit trust and mutual fund company annual fee for licence
85. Inconsistency with this Act and the Regulations
86. Changes in unit trust and mutual fund
87. Change and retirement of trustee or custodian
88. Change of manager of unit trusts and mutual funds
89. Retirement of manager
90. Liability of manager, director, trustee and custodian
91. Prohibited transactions under mutual fund
92. Limitation on securities in which officers have interest
93. Limitation on nil-paid or partly paid securities
94. Unlimited liability
95. Register of investors
96. Rectification by court
97. Register of unit trust and mutual fund
98. Appointment of temporary manager of a scheme
99. Termination of scheme
100. Termination by manager
101. Termination by court
102. Winding up of a unit trust scheme
103. Revocation of licence of a scheme
104. Suspension of licence of unit trusts and mutual funds
105. Winding up of a mutual fund company
106. Cancellation of licence
107. Unauthorised schemes and use of words “mutual fund” or unit trust”
108. General penalty

PART FOUR—MARKET OPERATORS’ LICENCES

Market Operators’ Licences

109. Licences
110. Exemption from obtaining a representative’s licence
111. Application for licence or renewal

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112. Grant or refusal of a market operator's licence
113. Grant or renewal of licence to representatives of market operators
114. Banks and other financial institutions doing business in the capital market
115. Changes by the Commission to licensing requirements
116. False statements
117. Enquiries into securities transactions
118. Imposition of conditions or restrictions
119. Period of licence
120. Notification of change of particulars
121. Register of licence holders
122. Revocation or suspension of licences
123. Power to reprimand or disqualify
124. Operation pending renewal of licence

PART FIVE—REGISTER OF INTERESTS IN SECURITIES, CONDUCT OF SECURITIES BUSINESS AND TRADING IN SECURITIES

Register of Interests in Securities

125. Application of this Part
126. Register of securities
127. Notice of particulars to Commission
128. Defence to prosecution
129. Production of register
130. Particulars of independent financial analysts
131. Extract of register

Conduct of Securities Business

132. Prohibited representations
133. Issue of contract notes
134. Disclosure of interests in securities
135. Recommendations by adviser
136. Dealing as principal
137. Provision of unsecured credit
138. Prevention of money laundering activities
139. Broker-dealer to give priority to client's orders

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140. Handling of money of client by broker-dealer and other licensees
141. Right to vest securities through sale
142. Securities lending and borrowing
143. Margin trading and financing
144. Advertisements and protection of consumers of financial services
145. Registration of securities
146. Professional service providers

Trading in Securities and Related Offences

147. False trading and market rigging transactions
148. Stock market manipulation
149. False or misleading statements
150. Fraudulently inducing persons to deal in securities
151. Dissemination of information about illegal transactions
152. Employment of manipulative and deceptive devices
153. Prohibition of dealings in securities by insiders
154. Penalties
155. Convicted persons liable to pay compensation

PART SIX—ACCOUNTS AND AUDIT

156. Application of this Part
157. Accounts to be kept by broker-dealers
158. Securities documents in custody of broker-dealer
159. Trust account of broker-dealer
160. Purposes for which money may be withdrawn from a trust account
161. Appointment and qualification of auditor
162. Removal and resignation of auditors
163. Fees and expenses of auditors
164. Accounts and reporting requirements of broker-dealer
165. Auditor to report to Commission in prescribed matters
166. Certain matters to be reported to Commission
167. Defamation
168. Imposition of obligation on members not affected by this Part
169. Power of court to restrain the operation of a trust account

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170. Duty of bank to make full disclosure
171. Power of court to make further orders and give directions
172. Power of court to make order relating to payment of moneys
173. Commission to apply for hearings in camera

PART SEVEN—FIDELITY FUND

174. Establishment of fidelity fund
175. Moneys constituting fidelity fund
176. Fund to be kept in separate bank account
177. Payments out of fidelity fund
178. Accounts of fidelity fund
179. Management Committee of the fidelity fund
180. Minimum amount in the fidelity fund
181. Protection of the fidelity fund in the event of any reduction
182. Levy of liabilities
183. Advances to fidelity fund
184. Investment of fidelity fund
185. Application of fidelity fund
186. Claims against fidelity fund
187. Notice calling for claims against fidelity fund
188. Power of governing body to settle claims
189. Orders of court on establishment of claim
190. Power of governing body to require production of securities
191. Rights of claimant on payment from fidelity fund
192. Payment of claims only from fidelity fund
193. Provision where fund is insufficient to meet claims or where claims exceed total amount payable
194. Power of governing body to enter into contracts of insurance
195. Application of insurance moneys
196. Interpretation

PART EIGHT—MISCELLANEOUS PROVISIONS

197. Accounts and audit of issuers and licensees
198. Restriction on use of name “stock exchange” or “securities exchange”
199. Offences by directors and executive officers
200. Falsification of records by directors, employees and agents

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201. False reports to Commission or securities exchange
202. Oath and confidentiality
203. Power of court to prohibit payment or transfer of money, securities or other property
204. Freezing of assets
205. Enforceable undertakings
206. Penalties
207. Prosecution of offences
208. Publication
209. Codes, directives, guidelines and circulars of the Commission
210. Power to grant exemptions and waivers
211. Interest in securities
212. Associated person
213. Stock exchange to refer to other exchanges
214. Mandatory trade through commodity exchange
215. Regulations
216. Interpretation
217. Repeals and savings
218. Modification of application of sections 147 and 148 to a stock market outside the country
219. Transitional provisions

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Act 929

REPUBLIC OF GHANA

THE NINE HUNDRED AND TWENTY-NINETH

ACT

OF THE PARLIAMENT OF THE REPUBLIC OF GHANA
ENTITLED
SECURITIES INDUSTRY ACT, 2016

AN ACT to revise and consolidate the Securities Industry Act, 1993 (PNDCL 333) and to provide for related purposes.

DATE OF ASSENT: 14th September, 2016.

PASSED by Parliament and assented to by the President:

PART ONE—SECURITIES AND EXCHANGE COMMISSION

Establishment

Establishment of the Commission

1. (1) There is established by this Act a body corporate to be known as the Securities and Exchange Commission.
   (2) The Commission may for the performance of its functions acquire and hold movable and immovable property and may enter into a contract or any other transaction. (3) Where there is hindrance to the acquisition of property, the property may be acquired for the Commission under the State Lands Act, 1962 (Act 125) and the cost shall be borne by the Commission.

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Object of the Commission
2. The object of the Commission is to regulate and promote the growth and development of an efficient, fair and transparent securities market in which investors and the integrity of the market are protected.

Functions of the Commission
3. To achieve the object the Commission shall
(a) advise the Minister on matters relating to the securities industry; (b) maintain surveillance over activities in securities to ensure orderly, fair and equitable dealings in securities; (c) register, license, authorise or regulate, in accordance with this Act or the Regulations, (i) securities exchanges, (ii) commodities and futures exchanges, (iii) securities depositories, (iv) clearing and settlement institutions, (v) credit rating agencies, (vi) fund managers, (vii) investment advisers, (viii) unit trusts, (ix) mutual funds, (x) hedge funds, (xi) private equity funds, (xii) venture capital funds, (xiii) nominees, (xiv) underwriters, (xv) issuing houses, (xvi) registrars, (xvii) custodians, (xviii) trustees, (xix) primary dealers, (xx) broker-dealers, (xxi) the representatives of the persons specified in subpara-graphs (i) to (xx); and (xxii) any other institution in the securities industry to control and supervise their activities with a view to maintaining proper standards or conduct and acceptable practices in the securities business;

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(d) formulate principles for the guidance of the industry; (e) monitor the solvency of licence holders and take measures to protect the interest of customers where the solvency of a licence holder is in doubt; (f) protect the integrity of the securities market against any abuses arising from dealing in securities including insider trading; (g) adopt measures to minimise and resolve any conflict of interest that may arise for market operators; (h) review, approve and regulate takeovers, mergers, acquisitions and all forms of business combinations in accordance with any law or code of practice requiring it to do so; (i) create the necessary atmosphere for the orderly growth and development of the capital market; (j) perform the functions referred to in the Companies Act 1963 (Act 179); (k) examine and approve invitations to the public made by issuers other than the government; (l) authorise and regulate the issuing of securities in Ghana by foreign issuers; and (m) undertake activities that are necessary or expedient for giving full effect to the provisions of this Act.

Governing body of the Commission

4. (1) The governing body of the Commission is a Board consisting of (a) a chairperson; (b) the Director-General; (c) the two Deputy Directors- General; (d) one representative each from the following:
(i) Bank of Ghana not below the rank of a Director; and (ii) Ministry of Finance not below the rank of a Director; (e) the Registrar-General or the representative of the Registrar-General; and

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(f) four other persons comprising
(i) a lawyer qualified to be appointed a Justice of the Superior Court of Judicature nominated by the General Legal Council; (ii) a chartered accountant nominated by the Institute of Chartered Accountants, Ghana; (iii) an academic researcher in a relevant field; and (iv) a woman (2) The members of the Board shall be appointed by the President in accordance with article 70 of the Constitution. (3) The President shall in making appointments under section (1) (f) consider gender balance and have regard to the expertise, knowledge and experience of the persons in matters relating to securities or investment. (4) The Board shall monitor and oversee the operations of the Commission and ensure the effective implementation of the object and functions of the Commission.

Tenure of office
5. (1) A member of the Board shall hold office for a period not exceeding three years and is eligible for re-appointment but a member shall not be appointed for more than two terms.
(2) Subsection (1) does not apply to the Director-General and the Deputy Directors-General.
(3) A member of the Board may at any time resign from office in writing addressed to the President through the Minister. (4) A member of the Board other than the Director-General and two Deputy Directors-General who is absent from three consecutive meetings of the Board without sufficient cause ceases to be a member of the Board. (5) The President may by a letter addressed to a member revoke the appointment of that member. (6) Where a member of the Board is for a sufficient reason unable to act as a member, the Minister shall determine whether the inability would result in the declaration of a vacancy. (7) Where there is a vacancy (a) under subsection (3) or (4), (b) as a result of a declaration under subsection (6), or

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(c) by reason of the death of a member, the Minister shall notify the President of the vacancy and the President shall appoint a person to fill the vacancy.

Meetings of the Board

6. (1) The Board shall meet at least once every two months for the despatch of business at the times and in the places determined by the chairperson.
   (2) The chairperson shall at the request in writing of not less than four members of the Board, convene an extraordinary meeting of the Board at the place and time determined by the chairperson. (3) The quorum at a meeting of the Board is seven members of the Board and shall include the Director-General or in the absence of the Director-General, a Deputy Director-General. (4) The chairperson shall preside at meetings of the Board and in the absence of the chairperson, a member of the Board other than the Director-General or the Deputy Director-General elected by the members present from among their number shall preside. (5) Matters before the Board shall be decided by a majority of the members present and voting and in the event of an equality of votes the person presiding shall have a casting vote. (6) The Board may co-opt a person to attend a Board meeting but that person shall not vote on a matter for decision at the meeting.

Disclosure of interest

7. (1) A member of the Board who has an interest in a matter for consideration
   (a) shall disclose the nature of the interest and the disclosure shall form part of the record of the consideration of the matter; and (b) shall not participate in the deliberations of the Board in respect of that matter. (2) A member ceases to be a member of the Board, if that member has an interest in a matter before the Board and (a) fails to disclose that interest, or (b) participates in the deliberations of the matter.

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Establishment of committees
8. (1) The Board may establish committees consisting of members of the Board or non-members or both to perform a function.
(2) A committee of the Board may be chaired by a member of the Board.
(3) Section 7 applies to members of committees of the Board.

Allowances
9. Members of the Board and members of a committee of the Board shall be paid the allowances approved by the Minister.

Administration

Ministerial directives
10. The Minister may give directives of a general nature to the Board on matters of policy relating to the capital market and the Board shall give effect to the directives.

Appointment of Director-General
11. (1) The President shall in accordance with article 195 of the Constitution appoint a Director-General of the Commission who shall be the chief executive of the Commission.
(2) The Director-General shall hold office on the terms and conditions specified in the letter of appointment. (3) The Director-General is responsible for (a) the day-to-day administration of the affairs of the Commission and is answerable to the Board in the performance of functions under this Act; and (b) the implementation of the decisions of the Board. (4) The Director-General may delegate a function to an officer of the Commission but shall not be relieved of the ultimate responsibility for the performance of the delegated function.

Appointment of Deputy Directors-General
12. (1) The President shall in accordance with article 195 of the Constitution, appoint two Deputy Directors-General for the Commission.
(2) A Deputy Director-General shall hold office on the terms and conditions specified in the letter of appointment.

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(3) A Deputy Director-General shall assist the Director-General in the performance of functions of the Director-General and perform any other function determined by the Board.

Appointment of other staff

13. (1) The President shall in accordance with article 195 of the Constitution appoint for the Commission, other staff that are necessary for the proper and effective performance of functions of the Commission.
    (2) The President may in accordance with article 195 (2) of the Constitution delegate the power of appointment of public officers under subsection (1). (3) Other public officers may on the request of the Commission be transferred or seconded to the Commission or may otherwise give assistance to the Commission. (4) The Commission may engage the services of advisers and consultants on the recommendation of the Board.

Finances of the Commission

Funds of the Commission

14. (1) The funds of the Commission include
    (a) levies payable to the Commission under section 15; (b) moneys approved by Parliament; (c) grants to the Commission received from the Government or any other body or person for its activities; (d) fees and other moneys that accrue to the Commission in the course of the performance of its functions; and (e) interest and profits that accrue from the investments of the Commission. (2) The moneys received by or on behalf of the Commission shall be deposited to the credit of the Commission in a bank approved by the Minister and used wholly for the discharge of the functions of the Commission.

Levies payable to the Commission

15. (1) There is imposed by this Act a levy on a person issued with a market operator's licence under section 109.

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(2) A person who holds a market operator's licence for a financial year shall pay a levy prescribed towards the expenses of the Commission for that financial year. (3) The Commission may consult licensees in calculating the levy payable under subsection (2). (4) The Commission shall provide in writing (a) the formula for calculating the levy, (b) the time and method of payment, including installment payments, (c) the payment of interest on moneys overdue, and (d) penalties for non-payment. (5) The Commission shall issue directives, guidelines or circulars on the imposition of the levy payable to the Commission (a) by a buyer and a seller that carries out a transaction in securities, (b) by a collective investment scheme in respect of the net asset value of the scheme, and (c) on funds under the management of a fund manager other than funds of a collective investment scheme. (6) The Commission may exempt the payment of the levy under paragraph (c) of subsection (5) in respect of funds under a pensions scheme registered under the National Pensions Act, 2008 (Act 766) and the Commission may arrange with the pensions Regulator for part of the fees payable to the Pensions Regulator on such funds.

Accounts and audit
16. (1) The Board shall keep books of accounts and proper records in relation to them in the form approved by the Auditor-General.
(2) The Board shall submit the accounts of the Commission to the Auditor-General for audit within three months after the end of the financial year. (3) The Auditor-General shall not later than three months after the receipt of the accounts, audit the accounts and forward a copy of the audit report to the Minister.

Annual report and other reports
17. (1) The Board shall within one month after receipt of the audit report submit an annual report to the Minister covering the activities and operations of the Commission for the year to which the report relates.

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(2) The annual report includes

(a) the report of the Auditor-General; and
(b) any other information that the Commission may consider necessary.

(3) The Minister shall within one month after the receipt of the annual report submit the report to Parliament with a statement that the Minister considers necessary.

(4) The Board shall also submit to the Minister any other reports which the Minister may require in writing.

Administrative Hearings Committee

Establishment of Administrative Hearings Committee

18. (1) Without limiting section 8 there is established an Administrative Hearings Committee of the Board.
    (2) The Hearings Committee consists of three members of the Board elected by the members, except that the chairperson of the Board, the Director-General and the two Deputy Directors-General shall not be members. (3) The members of the Committee shall elect a chairperson from among the three members. (4) The functions of the Hearings Committee are

(a) to examine and determine complaints and disputes related to, in respect of, or arising out of a matter to which this Act applies; and
(b) to perform a duty related to the functions specified under paragraph (a) that may be referred to it by the Commission.

Submission of complaints and examination of issues

19. (1) A complaint, dispute or a violation arising under this Act shall, before any redress is sought in the courts, be submitted to the Commission for hearing and determination in accordance with this Act.
    (2) A person who intends to submit a complaint or matter to which subsection (1) applies shall submit it in writing to the Director-General. (3) The Director-General shall cause the matter to be investigated and unless the Director-General can settle the disputed matter or complaint, refer the matter together with the findings of the investiga-

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tions to the Hearings Committee within thirty days of the receipt of the written complaint, dispute or violation; and at the same time inform the complainant or persons concerned of the submission to the Hearings Committee.

(4) Subject to section 22, the Hearings Committee shall on receipt of a complaint or a matter under this section, examine and determine the complaint or matter.

(5) The Hearings Committee shall not determine a complaint or matter which is the subject matter of an action before a court.

Representation before the Hearings Committee

20. A person appearing before the Hearings Committee may
    (a) make a representation;
    (b) be represented by a lawyer or other expert of the person's choice; and (c) produce the evidence which that person considers necessary for the adjudication of the complaint or matter.

Proceedings of the Hearings Committee

21. (1) The Hearings Committee may exclude persons from its proceedings, other than parties to the proceedings and their lawyers or experts, where the Hearings Committee considers it necessary in the interest of public order, public morality or the protection of the private lives and interest of persons concerned in the proceedings.

(2) The Hearings Committee may call witnesses and request the production of documents which it considers necessary to determine the issue before it.

(3) Witnesses appearing before the Hearings Committee may be paid allowances determined by the Board in consultation with the Minister.

(4) The Hearings Committee shall give a fair hearing to the persons who appear before it and shall be guided by the rules of natural justice.

(5) Where a complaint is submitted to the Hearings Committee under subsection (1) of section 19, the Hearings Committee shall, within

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a period of sixty days from the date of receipt of the complaint or matter, examine and determine the complaint or matter unless there is a delay caused by the complainant or the representative or witness of the complainant.

(6) Except as otherwise provided in this Act, the Hearings Committee shall determine the procedure for its hearings.

Referral of final decisions of Hearings Committee

22. (1) The final decision of the Hearings Committee on a matter submitted to it for determination shall be referred to the Board.

(2) The Board on receipt of the final decision may (a) approve of the decision; (b) remit the matter to the Hearings Committee for further consideration; or (c) modify the final decision.

Appeals from decisions of the Board with reference to the Hearings Committee

23. A person dissatisfied with a decision of the Board may seek redress at the High Court.

Production of Books and Documents

Power of Commission to require production of books

24. (1) The Commission may by notice in writing, where it considers that there is sufficient cause to do so, give directives to
    (a) a licensee or former licensee;
    (b) a member of the governing body of a securities exchange; (c) an issuer or a former issuer; (d) a person who is controlled by any other person referred to in paragraph (a), (b) or (c) or jointly controlled by two or more persons at least one of whom is a person referred to in these paragraphs; (e) a person who is or has been an officer or an employee of, or an agent, lawyer, auditor or other person acting in any capacity for or on behalf of, a person referred to in paragraph (a), (b), (c), or (d); (f) any other person who is or has been a party to a dealing in securities; or (g) any other person,

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to produce to the Commission or a person authorised by the Commission the books, subject to subsection (2), specified in the directive. (2) For the purposes of subsection (1), books in respect of which a request to produce may be made relate to (a) the business or affairs of an issuer, a securities exchange, a licensee or past licensee; (b) a dealing in securities; (c) a dealing in unit trusts and mutual funds; (d) advice concerning securities or the issuing or publication of a report or analysis concerning securities; (e) the character or financial position of, or any business carried on by, a person referred to in paragraph (c), (d), (e), or (f) of subsection (1); (f) an audit of, or any report of an auditor concerning a dealing in securities or the accounts or records of a broker-dealer or of a fund manager; or (g) information relating to the business of a person or to the business administered or managed by that person for that person's clients. (3) A directive to produce shall not be made to a person under subsection (1) (g) unless the Commission has reasonable cause to believe that the person has custody or control of books which relate to a matter specified under subsection (2). (4) Books shall not be directed to be produced by a person under subsection (1) (g) at a time or place that may unduly interfere with the proper conduct of the normal daily business of that person. (5) The Commission may, in writing authorise a person possessed of a qualification that the Commission considers adequate, to exercise the power to request for the production of books conferred on the Commission under this section. (6) A reference in subsection (1) to dealing in securities or to a business carried on by a person, includes a reference to a dealing in securities by a person as a trustee. (7) An authorisation from the Commission to a person under subsection (5), may be of general application or may be limited to making requirements of a specific nature.

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