Ace Ankomah’s Treatise on Galamsey and the Law 

Ace Ankomah’s article, “Beyond [the] fight against galamsey – fixing [the] regulation gap” which appeared on the Daily Graphic on Jul-01-2021 set my mind whirring.

Ace wrote that his purpose was to “propose a stand-alone codification of the law on small-scale (artisanal) mining; a more rigorous application and enforcement of it; and setting up a special division of the Minerals Commission, headed by a Deputy Chief Executive, dedicated to artisanal mining.

“Then, if we direct resources to applying and enforcing the rules, we could have a vibrant, responsible and well-regulated artisanal mining industry that will create employment and wealth, and still protect the environment.”

I am afraid Ace is whistling in the wind. He seems to be frightened of accepting the logical conclusions about the galamsey issue that his own research clearly suggest he should reach.

I shall not blame him for this because lawyers are, by training, obliged to concern themselves with the law “simplicita,” whereas politicians and journalists must take into consideration, the wider background to any serious problem in the public arena to which they want to find an effective solution.

Read More: Some Achievements of Dr Lordina Mahama in just 4 Years without Salaries from the State

Ace acknowledges that “today’s mess” regarding

galamsey is “the direct result” of a historical antagonism towards artisanal mining, followed by “reluctant legalisation from 1986”, and then “an abject failure of regulation from 2006.”

His expatiation of the situation “from 2006” is uninhibited. He writes: “Since 2006, Ghana has had one of the best legal blueprints for regulating artisanal mining anywhere in the world.” He then asks the two billion dollar question: why have we got it so right on paper but got it so wrong in practice?

I am afraid he offers no practicable answer! On the contrary, he just proposes more of the same – namely, another “legal blueprint for regulating artisanal mining”!

This is most strange, because he points out that the 2006 regulations were meant to cure the anomalies created by the enactment of a law in 1986 that (in his words!) “gave a grudging legal recognition to artisanal mining” . Yet that did not happen!

He acknowledges that “come 2006, we passed a more forward-looking Minerals and Mining Act, …. which, [with] its subsequent amendments, stands tall, compared with similar legislation elsewhere.”

Yet it did not work!

In sum (he elaborates) the 2006 Act provided that the Minister of Lands and Mineral Resources might designate an area for mining and then grant licences with necessary conditions. “Mining outside the designated area” [according to the 2006 Act) “is an offence.” Only Ghanaians of 18 years and above may engage in artisanal mining or provide related mining services,” the 2006 Act said further.

Additionally, it gave the Minister power to “revoke a licence for specified reasons”. Transfers of licences required the Minister’s consent. Also, the Minerals Commission was empowered to “establish a District Office in a designated area (headed by a District Officer) to register miners, supervise and monitor operations, provide advice, training facilities and periodic reports, etc.

“Registering with a District Office was a prerequisite to being granted a licence”. District Offices were to be complemented by a Committee, “composed [of] the District Chief Executive, the District Officer, and nominees of the District Assembly, Traditional Council, Inspectorate Division of the Minerals Commission and (most importantly) the Environmental Protection Agency, to effectively monitor, promote and develop mining operations in the designated area.”

One last provision in the previous regulations deserves particular emphasis: The District Committee is composed by the District Chief Executive, the District Officer, and nominees of the District Assembly, Traditional Council, Inspectorate Division of the Minerals Commission and (most importantly) the Environmental Protection Agency.

Now, where have we been hearing such proposals, recently, regarding “community mining”?

Finally, licensees were required to observe good mining practices and health and safety rules, and ‘pay due regard to the protection of the environment.’ And there were, also, “strict regulations on the use of explosives and mercury.”

I reiterate that these regulations are much the same as those announced in 2018 by the NPP Government, when it lifted the ban it had imposed on galamsey and outlined a detailed “road map” meant to achieve what was grandly called “GALAMSTOP!”

I shall now try and answer the question Ace so eloquently asks: “How then could we get it so right on paper but get it so wrong in practice?”

I think we got it “so wrong in practice” because Ghana’s current socio-political problems cannot be solved by blueprints written on paper!

Galamsey has become a “Sword of Damocles” hanging around our nation’s neck. Scientists are forecasting that within the next decade, we shall have lost most of the water-bodies from which our rural communities (in particular) draw their potable water.

I do not want to sound alarmist but I fear that if we do not stamp out galamsey, we shall be worse off, in the next few years, than a nation conquered through war!

The reason is that conquest by war does not usually result in the loss of a vital resource, such as drinking water, for the conquered populace.

We therefore face a calamity that is – potentially – worse than that which we would face if subdued by military conquest.

Now if we were to face a possible attack, we would grant our President emergency powers to conscript all eligible persons into the army; power to sequestrate and use all manner of equipment owned by private individuals, that were deemed essential to national self-defence. And power to levy special taxes on income and commerce, to finance our self-defence efforts.

The measures I have outlined above would be incorporated in a sort of ‘Declaration of War Act,’ to be sure. Such legislation would be extremely unpopular, but would be recognised by the populace as necessary for the defence of our nation.

The Government of Ghana must surely know that a national water shortage – in an age of climate change– (it must have heard of what is currently happening in Canada, to say the least!) demands more action than “a blueprint written on paper”?

I am guessing that past experience it has gained from the fate suffered by other expertly-written regulations, has convinced it that it cannot place any further faith in paper regulations, damn what the legal draughtsmen say.

That is why it has established “Operation Halt” that empowers the Ghana Armed Forces to use whatever force is necessary, to PREVENT excavators, bulldozers and chanfang machines, from being used to carry out galamsey in our countryside. Such equipment must be burnt at sight, it has ordered.

You see, the Government is made up of Ghanaians. It knows precisely what subtle socio-political instruments the galamseyers have been employing, CONSISTENTLY to frustrate our Governments’ efforts to stop galamsey through “legal regulation.”

The Government would be remiss not to see the galamsey challenge as “WAR BY OTHER MEANS!”

It must act in the national interest, taking account of its massive trove of intelligence exposing the realities that govern corrupt action in this society.

If anyone thinks that the Government is acting illegally, let them “go to court”!

Being aware of the sheer incompetence often shown by the Government’s law enforcement apparatus, I would leave the courts out of it, if I were the President.

But – hey! – we cannot all be President!

It might be asked: why doesn’t the Government cut the Gordian knot and declare a “state of emergency” that would explicitly empower it – ”legally” – to take drastic action against galamsey operators, such as burn their equipment on sight?

It would not be politic for the Government to do that because (1) a state of emergency would scare off investors; and (2) its operation could be extended, willy-nilly, to affect life in other spheres not related to galamsey. (We have all sorts of “macho” characters, mainly criminals operating under quasi-official garb, who would take advantage of such legislation to terrorise their fellow citizens.)

I think, for all these reasons, that the “Operation Halt” option, imperfect though it is, is the relatively “better” part of a noxious “Hobson’s choice”.

That citizens of Ghana have driven a liberal administration to opt for such an unsatisfactory modus operandi confirms the absolute wretchedness of the situation they have created for the nation, in relation to stopping galamsey. Science has not worked. Legal scrupulousness has not worked. Only brute force works, as seen by the panicky reaction with which the galamseyers, out to lose millions of cedis from destroyed mining machinery, have greeted “Operation Halt”.

That reaction alone should tell the Government that it is doing something right. In this connection, Government officials should make sure that they do not undermine their own chances of success by making utterances that could undermine the morale of the personnel engaged in “Operation Halt!”

The Government is dealing with a highly sophisticated network of nation-wreckers. Forecasting “defeat” for itself when it is engaged in such a complicated operation, (as the Minister of Lands and Mineral Resources is reported to have done recently) is to surrender after merely taking a look at the resources deployed by the enemy, and getting frightened out of one’s wits by the arsenal.

Our cry should be: Forward to victory. We deserve victory because our ancestors valiantly won many battles to endow us with this nation of ours. It is our sacred duty, in our urn, to preserve the nation’s precious water resources and farmlands, for the descendants who will inherit those resources from us.

By Cameron Duodu