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Opinions of Wednesday, 7 July 2021

Columnist: Cameron Duodu

Ace Ankomah's treatise on galamsey and the law

Galamsey activities have marred the environment Galamsey activities have marred the environment

Ace Ankomah's article, “Beyond [the] fight against galamsey – fixing [the] regulation gap” which appeared on the Daily Graphic website 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 into its regulatory history, clearly suggest, he should reach.

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

Ace diagnoses “today’s mess” regarding

galamsey as “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 spot on. 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 realistic 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 the curing of those anomalies did NOT happen! Why was that so? Ace offers us no detailed analysis of the reasons.

He is happy to describe the 2006 law as “a more forward-looking Minerals and Mining Act, …. which, [with] its subsequent amendments, stands tall, compared with similar legislation elsewhere.”

That may be so. But did it work? If not, why not?

Instead of answering this all-important question, Ace merely reiterates that in sum, the 2006 Act provided the Minister of Lands and Mineral Resources with the power to designate an area for mining and then grant licences with necessary conditions. He continues:“Mining outside the designated area” [according to the 2006 Act] was an “offence.” And “only Ghanaians of 18 years and above could engage in artisanal mining or provide related mining services.” Additionally, the 2006 Act it gave the Minister power to “revoke a licence for specified reasons”. Transfers of licences also required the Minister’s consent.

The 2006 Act did, in fact, anticipate the well-articulated clamour by mining communities, in recenttimes, to be INCLUDED in regulating mining in their areas, by obliging the Minerals Commission 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.

Furthermore, “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.”

These prescient provisions in the 2006 Act made it “stand tall” in comparison to previous legislation, as Ace has earlier acknowledged. One last provision in the 2006 Act, in particular, deserves repetition: The District Committee was [to be] 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.

Now, where have we been hearing such proposals, recently, regarding the need to embark on “community mining”? We've got all the regulations that should make the destruction of the environment caused by galamsey unnecessary, if not impossible. Indeed, licensees were specifically required to “observe good mining practices and health and safety rules, and ‘pay due regard to the protection of the environment.’ 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 in 2017 and outlined a “new” (!) 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 there are, currently in Ghana, socio-political phenomena that create problems which cannot be solved by blueprints written on paper! That's why galamsey has been allowed to grow to become a “Sword of Damocles” hanging around the neck of our whole nation, that may strike us dead at any time.

For already, 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, by the conquered populace. We therefore face, in effect, a calamity that is – potentially – worse than that which we would face if we were to be subdued by a military conquest at the hands of a hostile foreign nation.

Now if we were to face a situation that could end in a military attack, we would grant our President emergency powers to take unprecedented action – such as conscripting all eligible persons into the army; sequestrating and using all manner of equipment owned by private individuals but deemed essential to national self-defence. And we would give him the 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 its own defence.

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, for example, to say the least!) demands more action than “a blueprint written on paper”?

I am guessing that past experience the Government has gained on the ground from the fate suffered by other expertly-written mining regulations, has convinced it that it cannot place any further faith in paper regulations, much as it would wish to stop galamsey by mere laws and regulations. It goes without saying that if you have a corrupt law enforcement system, and a conscienceless political class that puts greed for gold above the need to safeguard the lives of the people it has sworn to serve, then laws and regulations count for nothing.

That is why the Government has been constrained to establish “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 the efforts of past Governments to stop galamsey through “legal regulation.”

The Government would be remiss not to see the “power play” associated with galamsey, and challenge it as “WAR BY OTHER MEANS!” Indeed, our President was blatantly warned, on a viral video telecast before the 2020 election, that if he did not allow “gala” to go on, his party would lose power. And as we all know, that prophecy nearly came true.

The die, then is cast. Our Government must not waver in acting ruthlessly, in the national interest, against those in our society who have been fingered by the massive trove of intelligence it has gathered, with regard to the corruption that creates the realities that govern galamsey operations.

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 placate the “legality lobby” and cut the “Gordian knot”by declaring a “state of emergency” that would explicitly empower it – ”legally” – to take drastic action against galamsey operators, such as burning their equipment on sight?

It would not be exactly politic for the Government to do that because (1) a state of emergency would scare off investors; especially, the foreign entrepreneurs who need to sign agreements with us that include clauses on force majeure; and (2) the operation of a “state of emergency” could be extended, willy-nilly, to affect life in other spheres not exactly related to galamsey. (Our social system harbours all sorts of corrupt “macho” characters – mainly criminals operating under quasi-official garb – who would take advantage of such legislation to terrorise their fellow citizens and embarrass the Government.)

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 admittedly unsatisfactory modus operandi to combat galamsey, confirms the absolute wretchedness of the situation the galamseyers have created for the nation. Scientific education has not worked. Scrupulousness in the legal sphere has not worked. Only brute force works, as the panicky reaction with which the galamseyers, out to lose millions of cedis from destroyed mining machinery, have greeted “Operation Halt”, indicates.

That reaction alone should tell the Government that it is doing something right. In this connection, it is essential to warn Government officials to take care not to undermine their own chances of success, by making utterances that could sap the morale of the personnel they have assigned to carry out “Operation Halt!”

I remind all members of the Government that they are dealing with a highly sophisticated network of nation-wreckers, whose activities are only governed by greed for money. Forecasting that it might “not win”the struggle, when its antagonists are combating its agents in a dangerous and complicated operation (as the Minister of Lands and Mineral Resources is reported to have done recently) is to surrender after merely taking one look at the resources deployed by the enemy, and getting frightened out of one's wits by the size of the arsenal.

Our cry should be: Forward to victory. We deserve victory because our ancestors valiantly fought to win many battles before they could endow us with this nation of ours. It is our sacred duty, in our turn, to preserve the nation's precious water resources and farmlands, for the descendants who are entitled to inherit those resources from us. Just as we inherited the resources – NATURALLY – without having to fight, or even work, for it.

Our duty to preserve our water-bodies, forests and farmlands for future generations, is as unavoidable as the very air we breathe.