Officials could face abetment liability for allowing unlicensed mining – Prof Appiagyei-Atua on GoldBod CEO’s comment

Professor Kwadwo Appiagyei-Atua, a Professor of International Law and Human Rights at the University of Ghana School of Law, has criticized the GoldBod CEO's comments regarding permitting unlicensed mining until registration takes place. Prof Appiagyei-Atua maintains that such an instruction contravenes Ghana's mining laws. In an opinion piece, he refuted the position attributed to the GoldBod CEO, who had stated that any location, regardless of whether it was a water body, forest reserve or roadside, could be mined without a license, provided it was later registered and legalized.

According to Prof Appiagyei-Atua, the location of a mining operation does not absolve it from the requirement of obtaining a license. He specifically refers to Section 9 of the Minerals and Mining Act, 2006 (Act 703), which stipulates that a mineral right is necessary before any mining, prospecting, or exploration can commence. He also points to Section 82’s distinct licensing requirement for small-scale mining.

Prof Appiagyei-Atua argues that mining without a valid license is not only unlawful but also a criminal act. He refers to penalties imposed under the 2019 amendment, stating that those found guilty in Ghana could face fines and prison terms ranging from 15 to 25 years. He further refuted the notion that a ministerial or administrative directive allowing unlicensed mining would surpass the statutory powers granted by law.

He underlines that the Minister’s statutory power under Section 82 is confined to granting licenses, not authorizing mining without one. Prof Appiagyei-Atua also disputed the notion that steering clear of rivers, forest reserves, and roadsides renders an operation lawful. He referenced Section 18's environmental and forestry clearance requirements.

He argued that the suggested implicit test—that anything not expressly prohibited is permissible—reversed the statutory scheme, which operates on a permission-based system; nothing is permitted unless explicitly licensed. He also made a distinction between supporting formalization and allowing mining before legal prerequisites are fulfilled.

He suggested that formalization, with designated mining areas, quicker registration, and district-level licensing assistance, could be potential avenues. Prof Appiagyei-Atua emphasized that the illegality resides entirely in the sequence—the law mandates registration before mining. He argued that subsequent registration cannot expunge an offense that has already been committed.

He warned that miners relying on an official assurance would remain susceptible to prosecution, as an official representation cannot create a right that Parliament had not granted. He also raised the potential liability for officials who facilitate unlawful mining and questioned whether such directives complied with constitutional duties related to discretionary power and environmental protection.

Prof Appiagyei-Atua called for lawful resistance against galamsey and concluded by urging all legal action to resist unlicensed mining.