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Opinions of Wednesday, 15 August 2018

Columnist: Michael Sumaila Nlasia

Vesting management of Ghana bauxite under a Corporation: Its constitutionality

Following the intention of government to set up an integrated bauxite and aluminum industry in Ghana, a Bill was forwarded to parliament to consider the establishment of an Integrated Bauxite and Aluminum Corporation. This Bill has been passed into law and it sets the legal framework for the regulation of the industry.

The purpose of the Bill as contained in the memorandum proposed to parliament for the establishment of a Ghana Integrated Bauxite and Aluminum Development Corporation is to promote and develop an integrated bauxite and aluminum industry.

Also, the Bill redefined the Integrated Bauxite and Aluminum Industry which has been recognized since independence.

According to the memorandum, the government realizes the need to take opportunity of the vast bauxite resource available to help in economic development of the country.

There appears an issue with regards to the constitutionality of the management and utilization of bauxite in Ghana under Corporation which needs to be brought to the fore.

Constitutional Mandates of the Corporation

The Bill stated the setting up of a Corporation with the function of managing the bauxite resources of the country. This function attributed to the Corporation would be unconstitutional in the light of the 1992 Constitution and the provisions on the management and utilization of our natural resources. The Constitution provides under article 269(1) that,
“Subject to the provisions of this Constitution, Parliament shall, by or under an Act of Parliament, provide for the establishment, within six months after Parliament first meets after the coming into force of this Constitution, of a Minerals Commission, a Forestry Commission, Fisheries Commission and such other commissions as Parliament may determine, which shall be responsible for the regulation and management of the utilization of the natural resources concerned and the coordination of the policies in relation to them.”

From the above provision, the question to determine the public structure for the management and utilization of mineral resources has been resolved by the Constitution.

It is on the basis of this provision that the Mineral’s Commission was established and given the mandate to formulate policy for exploration and exploitation of mineral resources with special reference to establishing national priorities having due regard to the national economy. The Constitution has already set-up the Mineral’s Commission and the function sought to be given to the Corporation is somewhat being exercised by the Mineral’s Commission.

In actual fact, the mining of bauxite in Awaso is under of the Minerals’ Commission. Therefore, wielding the management and utilization to an Authority is not only unconstitutional but could also cause the redundancies in the public structure in the management of bauxite.

For instance, the Ghana National Petroleum Corporation (GNPC) is Ghana’s National Oil Company (NOC), as established by PNDC Law 64. It has the mandate, under section 2, to undertake the exploration, development, production and disposal of the country’s petroleum resources.

The GNPC is subject to regulation by the Petroleum Commission under the law. For now, it would remain unclear the relationship between the Bauxite Corporation and the Mineral’s Commission if section 27 of the Bill stated that the Authority shall collaborate with the Minerals Commission, the Ghana Geological Survey Authority and any other relevant public institution to develop the integrated and aluminum industry. It is important to note that collaboration is not the same as regulation. And the scope of the collaboration in the Act is unclear.

At this point, the Corporation mandate for management and utilization of our natural resources appears to be contrary to the provision in article 269 of the Constitution. It is important that parliament takes a look at consideration.

By: Michael Sumaila Nlasia
Research Analyst
Center for Data Processing and Geo-Spatial Analysis
E-mail: marcusgarvey.snr@gmail.com
Phone: 0548455071