Testing new Goldbod CEO’s ‘new law’ on small-scale mining against the law

On the 1st of [month], GoldBod's CEO stated that they plan to allow small-scale mining activities to proceed without a license, arguing that the current law does not explicitly forbid such activity if the site is not a water body, forest reserve, or roadside. Section 9 of the Minerals and Mining Act, 2006 (Act 703) specifies that mining, prospecting, or exploration is only permitted with a mineral right under the Act, even for owners or holders of land rights.

However, Section 82 mandates that small-scale mining operations require a licence from the Minister or an authorised officer, regardless of any contrary laws. Unlicensed mining is not only unlawful but also punishable, with fines and imprisonment depending on nationality and the severity of the offence. The Minerals Commission further clarifies that a Ghanaian engaged in unlicensed mining could face up to fifteen years' imprisonment, while non-Ghanaians face between twenty and twenty-five years, plus deportation.

This directive from the CEO, implying that unlicensed mining should be allowed, is deemed ultra vires, meaning it is beyond the power of the Minister. Under Section 82, the Minister's authority is limited to granting licences, not permitting unlicensed mining. Additionally, Section 18 of the Minerals and Mining Act requires environmental and forestry clearance for any land mining, even if it does not fit the previously mentioned categories.

The CEO's implicit suggestion that any land not expressly prohibited is permissible contradicts the statutory scheme that requires affirmative licensing. The Goldbod CEO's stance is challenged as it reverses the statutory system, which is permission-based rather than allowing anything not explicitly prohibited. Ghana's commitment to the Minamata Convention on Mercury obliges the country to develop a national plan for artisanal and small-scale gold mining, further underscoring the illegality of unlicensed mining.

The Goldbod CEO's statement effectively reverses the correct sequence of registering a mining operation before the actual mining begins. Once mining commences without a licence, the offence is already committed, and registration afterward does not mitigate the initial crime. Consequently, criminal liability remains intact. The CEO's assurance cannot excuse the miner from the mandatory minimum of fifteen years' imprisonment, and the official who issued the directive is not accountable under the law.

This situation raises concerns about potential liability under the Criminal Offences Act, 1960 (Act 29), Section 20, for abetting unlicensed mining, and under the 2019 Act 995 for facilitating illegal activities. The statement also infringes on the Ghanaian Constitution's Articles 284 and 296, as well as the State's duty to protect the environment under Article 36(9) and citizens' reciprocal duty under Article 41(k).

The CEO cannot claim ignorance of the law, as this directive is a deliberate attempt to test Ghana's resolve against galamsey, which the NDC government aims to exploit. This move is perceived as part of a broader strategy to legitimize illegal mining practices and potentially link gold purchases by Goldbod to galamsey, reflecting a lack of commitment to combating this issue.

The government's repeated statements on galamsey suggest a reluctance to address the problem, despite previous claims of success. Society's reaction has been muted, allowing the government to further undermine its efforts. The onus is on citizens to resist such unlawful actions, as the power to address galamsey still lies with the people.