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Opinions of Monday, 31 May 2021

Columnist: Dr. Amoako Baah and Philip Danso Appiagyei

Galamsey menace: The President is right!

Galamsey pit Galamsey pit

Laws in society are enacted not merely to make pronouncements as to what can be done or cannot be done, but to ensure that what cannot be done is not done. The country is facing a national emergency with respect to the galamsey menace. Emergency situations call for emergency measures.

The approach the president has chosen is a direct result of what has happened in Ghana for a long time under different governments. Those who want to close their eyes and behave as if they just arrived in the country may go ahead with the call for “the rule of law,” ignoring the numerous times and approaches different governments have used to no avail.

OccupyGhana claims that “burn-on-sight” punishment exacted on alleged illegal miners is a breach of the rule of law. They site different acts to upport their position: 2006 Minerals and Mining Act (as amended), the 2010 EOCO Act, the 2017 Office of the Special Prosecutor Act and the 2020 Narcotics Control Commission Act. Others claim that the government cannot use illegality to fight illegality.

First, the order is not “burn-on-sight;” it is burn-on-site. If it were “burn-on-sight,” all the excavators in Accra would be burnt. When an excavator is found in a river, what possible explanation can be given other than illegal mining, or was the operator using the excavator to fish? When an excavator is found in the forest reserve, we can assume that it was not being used to plant cassava. The untold evidence of land degradation speaks to that.

If we want to engage in endless intellectualism while this real and present danger stares us in the face, I’m afraid, we have become fools. Only a fool would choose gold over water because that choice would soon kill him.

The position of the President is not only the right one, it is legally sound too because the spirit of the constitution gives him that power.

When the President says those who do not agree with him can go to court, he is merely repeating what the Constitution says in Article 2(1b):
A person who alleges that any act or omission of any person is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.

The following constitutional provisions support the President’s position.

Article 13

(2) A person shall not be held to have deprived another person of his life in contravention of clause (1) of this article if that other person dies as the result of a lawful act of war or if that other person dies as the result of the use of force to such an extent as is reasonably justifiable in the particular circumstances.-

(d) in order to prevent the commission of a crime by that person.

If preventing the commission of crime may justifiably result in the loss of life, the temporary loss of property should not be debated.

Article 14

(1) Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law -

(g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.

Article 18

(2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.

Article 20

(1) No property of any description or interest in or right over any property shall be compulsorily taken possession of or acquired by the State unless the following conditions are satisfied.

(a) the taking of possession or acquisition if necessary in the interest of defense, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such a manner as to promote the public benefit; and

(b) the necessity for the acquisition is clearly stated and is such as to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over the property.

Article 257

(1) All public lands in Ghana shall be vested in the President on behalf of, and in trust for, the people of Ghana.

(6) Every mineral in its natural state in, under or upon any land in Ghana, rivers, streams, water courses throughout Ghana, the exclusive economic zone and any area covered by the territorial sea or continental shelf is the property of the Republic of Ghana and shall be vested in the President on behalf of, and in trust for the people of Ghana.


Seizure of movable property 10.

(1) Movable property which an officer or an authorized police officer reasonably suspects to be (a) the subject matter of an offence,

(b) which has been used for the commission of an offence, or

(c) is tainted property is liable to seizure.

UK’s Police and Criminal Evidence Act 1984 (“PACE”) and the common law

4. General power of seizure under section 19 Where lawfully on any premises an investigator has the power to: Seize anything which is on the premises if he has reasonable grounds to believe that it has been obtained in consequence of the commission of an offence or that it is evidence in relation to an offence, and that it is necessary to seize it in order to prevent in being concealed, lost, altered, destroyed or (for the commission of a crime)

Innocent until proven guilty

The overarching concern about the government’s approach of burning mining equipment is the apparent violation of the fundamental judicial doctrine of innocent until proven guilty. The immediate burning of mining equipment seems to turn the above doctrine on its head: “guilty until proven innocent.”

But this is not the case. This judicial doctrine applies only to people, not property. The government has the power to seize any property that it suspects is been used to commit a crime. When it comes to crime and property, the law in effect says, guilty until proven innocent. Once seized, it is the government’s prerogative to decide how that property is kept for evidence purposes.

What makes the mining equipment a unique case is that so far, all means of preventing its use in committing further crimes, even after it has been declared tainted property have failed. The fight against galamsey is not merely to pile up cases in court against the perpetrators, but to stop the poisoning and pollution of water bodies and the degradation of land. This is the clear and present danger the country is confronted with, and it must be resolved immediately. To this end, the President could declare a state of emergency to deal with it.

If the government burns it, the government bought it

In this fight, it is not enough just to seize the equipment. The continued presence of these equipment in mining areas creates a situation of recidivism, where the same equipment is used to commit further crimes. To stop the menace demands that no equipment is left at the mining sites. Since the experience of the past has shown the unworkability of this “normal” approach, the “burn-on-site” approach is the only one left.

Once an equipment is burnt by the government, it is to be assumed that it is still in the custody of the government. Any owner who is vindicated by the court is entitled to due compensation.

In the fight against drug trafficking, money laundering, and organized crime, governments around the world are using this tool. Sometimes property is seized without charges being filed. The owner can go to court to get his property back, if that property has been destroyed, the government must pay for it. Tough situations call for tough measures.