RESPONSE FROM HON. SAMUEL A. JINAPOR, MP,
MINISTER FOR LANDS AND NATURAL RESOURCES, TO QUESTION NO. 130 POSED BY HON. SAMUEL OKUDZETO ABLAKWA, MP (NORTH TONGU) ON THE LEGAL AND POLICY JUSTIFICATION FOR THE BURNING OF EXCAVATORS IN THE ONGOING FIGHT AGAINST ILLEGAL SMALL SCALE MINING (GALAMSEY)
INTRODUCTION
Mr. Speaker, at the outset, a recap of the background and history of small-scale mining in our country will give the House a much proper context and basis for government’s action, which will, hopefully, situate my answer in the most appropriate context of our current situation.
Mr. Speaker, the issue of illegal mining and how to deal with it is historical and complex. Our history tells us that, in pre-colonial times, our forefathers were panning for gold, and the chiefs and people had absolute control over all minerals found on their land. Indeed, when the colonial government, through the Crown Lands Bill of 1894 and the Lands Bill of 1897, attempted to vest the power to grant mineral concessions in the Governor, the people rejected it fiercely. The rejection of these Bills resulted in a compromise, which led to the passage of the first legislation that regulated mineral rights, the Concessions Ordinance (No. 14 of 1900). Under this Ordinance, citizens were still free to grant concessions to whoever they desired, subject only to customary laws on ownership of land.
After independence, however, and following the Report of the Commission of Inquiry into Concessions (The Boateng Commission), the Minerals Act, 1962 (Act 126) was passed, and, for the first time, vested all minerals in their natural state in the President, on behalf of the people of Ghana.
Whilst this has been the state of the law since 1962, it is not uncommon for people to give out their farm lands for purposes of mining, without recourse to government.
Throughout these years, however, and even after the Minerals Act of 1962 was repealed by the Minerals and Mining Law, 1986 (PNDCL 153), small-scale mining activities remained largely informal until 1989 when the Small-Scale Gold Mining Law, 1989 (PNDCL 218) was passed to regularize small scale mining, and to reserve it for citizens of Ghana. With the passage of the Minerals and Mining Act, 2006 (Act 703) and its various amendments, small-scale mining remains legal, only when done by a citizen of Ghana who holds a valid mining lease, and mines in accordance with the law and the terms and conditions attached to the mining lease.
Mr. Speaker, unfortunately, the activities of illegal miners have caused serious damage to our environment, to the extent that it threatens our very existence.
Over the years, beginning with the enactment of the law on small-scale mining in 1989, successive governments have employed the use of different measures to deal with the menace of galamsey, albeit with limited rates of success. We are now compelled to take these measures because the activities of these illegal miners result in irreparable damage and harm to humanity, and to current and future generations.
NOW TO THE SUBSTANTIVE QUESTION
Mr. Speaker, first of all, permit me to clarify the nature of the operation being carried out by the security services. What is being done is de-commissioning or de-mobilisation of the equipment used in destroying our forest reserves and water bodies, to make them incapable of being used for such illegalities. Mr. Speaker, as I have indicated on several occasions: when a country is confronted with an extraordinary problem, extraordinary measures ought to be deployed. The use of heavy machinery, such as excavators, for illegal mining in, and/or, near our forest reserves and water bodies is an extraordinary problem which requires the use of extraordinary measures to deal with.
There has been a debate as to whether or not it is legal and prudent to de-mobilize or de-commission these equipment which are being used to destroy our water bodies and forests. I will now proceed to give the legal and policy justification for these measures.
LEGAL JUSTIFICATION
Mr. Speaker, Article 36(9) of the Constitution, which forms part of “The Directive Principles of State Policy”, and which is supposed to guide all citizens, the Executive, the Legislature and the Judiciary in the application and interpretation of the Constitution and any other law, as well as in taking and implementing policy decisions, states as follows:
“The State shall take appropriate measures needed to protect and safeguard the national environment for posterity and shall seek co-operation with other states and bodies for purposes of protecting the wider international environment for mankind.”
Again, article 41(k), under the same Chapter Six of the Constitution, provides that:
“The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen to protect and safeguard the environment.”
(Mr. Speaker the emphasis is mine).
Mr. Speaker, the combined effect of these two articles of the Constitution is that citizens, who seek the protection of the law, have a duty to protect and safeguard the environment, and the State, as the custodian of the environment, has a duty to take measures necessary to ensure that the environment is protected for posterity.
One of such measures the State has adopted, after trying several unsuccessful measures, is to de-commission and/or de-mobilize equipment used in illegal mining, so that the perpetrators of these heinous crimes do not go back to continue the illegality with the same equipment.
Mr. Speaker, whilst a lot of attention is focused on those who mine without licence, there are a lot of illegalities that are perpetrated even by persons holding valid mineral rights. These include mining in unauthorized areas, including the Red Zones (contrary to section 89 of the Minerals and Mining Act, 2006 (Act 703); drawing and using water without the requisite permit from the Water Resources Commission (contrary to section 17 of Act 703); mining without regard to good mining practices and environmental protection (contrary to section 93 of Act 703); and using mercury (contrary to regulation 473 of the Minerals and Mining (Health, Safety and Technical) Regulations, 2012 (LI 2182)).
The President of the Republic, H.E. Nana Addo Dankwa Akufo-Addo, was spot on when, on Wednesday 26th May, 2021, he said, in his address at the sod-cutting ceremony for the construction of the Law Village of the Ghana School of Law, that:
“Indeed, a person in possession of a valid licence but undertakes mining in water bodies, or mines unlawfully in protected forest zones, also commits an illegality.”
I am advised by the Honourable Attorney-General that the action being taken by Government, in this regard, is within the remit of our laws. Again, like the President of the Republic said, “no rights can accrue to or flow from the criminal venture of galamsey.”
Mr. Speaker, the principle of law, established by Lord Mansfield, CJ, as far back as 1775, in Holman v Johnson (1775) 1 Cowper’s Reports 341 at 343, is that “Ex turpi causa non oritur actio”, which literally means “from a dishonourable cause an action does not arise”. This principle of law has been applied in a long line of cases in our country, including the case of Takoradi Flour Mills Ltd. v Samir Faris [2005 – 2006] SCGLR 882, where our apex court, the Supreme Court, speaking through the renowned Ansah JSC, held as follows:
“The law was settled that no one could found an action on an illegal act… Where the express words of a statute expressly proscribed or forbade a transaction, which a plaintiff sought to enforce, no court will lend its assistance or give effect to it.” (Mr. Speaker, yet again, the emphasis is mine).
Mr. Speaker, in addition to these acts being illegal and criminal, they are contrary to the duty of citizens, as enshrined in Article 41(k) above stated. This constitutional provision makes it abundantly clear that the enjoyment of rights is inseparable from the performance of the duty to protect the environment.
Indeed, the Supreme Court has on several occasions, beginning with Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271, through Attorney General v Balkan Energy Ltd [2012] 2 SCGLR 998 to the Woyome, Waterville and Isofoton line of cases, held that no right can accrue from an unconstitutional act.
In the recent case of Exton Cubic Ltd v Attorney-General and Others, delivered on 14th June 2018, the High Court in Kumasi was emphatic that a person who used equipment illegally for mining was not entitled to any monetary compensation from the court.
Mr. Speaker, I am not oblivious of the provisions of the Minerals and Mining (Amendment) Act, 2020 (Act 995), which requires seizure of the equipment used for illegal mining, the successful prosecution of the people involved, before confiscation of the equipment and its eventual disposal by the Minister for Lands and Natural Resources. It is my submission, however, that this law contemplates equipment that are easily retrievable, and which can conveniently be carried from their site to a safe place.
The equipment being decommissioned and/or demobilised however, are mostly found very deep in the forest, where they cannot be brought out without causing further damage to the forest; or found on waterbodies which makes them near impossible to bring out, without destroying the watercourse.
In addition to this, the illegal miners mostly remove the control boards from the machines, making them impossible to be moved.
Mr. Speaker, under such conditions, in accordance with articles 34(1) and 36(9) of the Constitution, the law must be interpreted to protect and safeguard the national environment for posterity. Where it is impossible to remove such equipment, without causing further damage, appropriate measures needed to protect the environment must be taken, and they are being taken.
Additionally, as I have sought to establish above, Mr. Speaker, in any event, Act 995 ought to be purposively construed alongside the dictates of the Constitution and settled case law, which will make the action of government legally justified. Furthermore, Act 995 seeks to prevent the use of equipments to mine illegally and this is the same objective government action is intended to achieve.
Mr. Speaker, I believe a reasonable police officer who comes face to face with a bomb, which is likely to go off, will demobilise it rather than retrieve it.
Mr. Speaker, the de-commissioning and/or de-mobilisation of equipment used for illegal mining are necessary measures we have taken to protect and safeguard our national environment for posterity, in accordance with the sacred duty bestowed on Government by the framers of our national Constitution, under article 36(9).
I will respectfully, but forcefully, contend that there is ample legal justification for the decommissioning or demobilisation of excavators illegally used to destroy our environment.
POLICY JUSTIFICATION
Mr. Speaker, aside the issue of the illegality of the activities of these ‘galamseyers’, the determination is to safeguard our water bodies and our forest reserves. Respectfully Mr. Speaker, it is important to note that the use of one excavator for mining can cause the depletion of one (1) hectare of forest cover in a day. The landscape of our forest zone is being totally degraded. It will take decades of hard work to get back our lost reserves, and de-contaminate our water bodies. That is why we are acting with urgency, and we simply cannot afford to look away nor relent.
Within the few months that we have implemented these measures, we have seen significant improvements, which we have never achieved in the history of our country’s fight against galamsey, since the 1980s.
Mr. Speaker, without sounding populist, if I may be permitted to ask the following rhetorical questions:
What would an excavator be doing on river Ankobra?
What would the machine popularly known as Chanfang or Tutututu be doing on the Birim river? and
What will be, by any stretch of argument, the legal or policy justification for the use of excavators to mine on the river Pra? How can anybody possibly justify such conduct under the law?
Furthermore, aside from illegal mining, what would be the motive for removing the control boards of an equipment, and making it impossible for them to be moved? The illegal miners have resorted to operating very late in the night, and, in some cases, at midnight when they realize the task force is not on patrol. They bring back the control board, fix them, and use the machines to operate at night. This they refer to as “all night mining.” It is, therefore, necessary to de-mobilise or de-commission these machines to prevent their usage by these nation wreckers.
Mr. Speaker, Ghana is not alone when it comes to using drastic measures to fight serious environmental crimes. In 2014, Indonesia resorted to blowing up and sinking vessels involved in illegal fishing. In total, three hundred and sixty-three (363) fishing vessels were sunk by the Indonesian security authorities. Australia adopted same measures when its exclusive economic zone was invaded by foreign fishing vessels.
We cannot continue to play ostrich when the facts and reality stares at our faces. As the House will appreciate, the Ghanaian people expect us to act, and we are doing just that. There is, therefore, sufficient policy justification for this action.
CONCLUSION
The totality of the legal and policy considerations support the work being undertaken by the security services, and we are convinced that no cause of action can be founded on such illegal acts.
Mr. Speaker, our nation is under serious threat. Our waterbodies are being destroyed at an alarming rate. Our nation risks becoming a net importer of water if we do not take action to stop illegal mining on our waterbodies. Our forest cover is depleting unsustainably. Our environment and ecosystem are being devasted. Our babies are being born deformed, as a result of the greed of a few individuals, Ghanaians and foreigners alike. Residents of mining communities are being inflicted with strange cancers. On BBC this morning, it was reported how cocoa farms are being invaded by illegal miners which threatens the survival of our age old cocoa industry. This is the time for genuine, honest, collective, broad-based, bipartisan and national effort to rescue our very existence. Government’s action in this regard is bold, necessary, accord with the public interest, and the policy and legal justifications are solid and well grounded.
I thank you Mr. Speaker.