Is galamsey really a legal problem?

The rationale for parliamentary scrutiny in transactions involving natural resources is to enhance transparency and expansive participation in matters involving such resources and ensure value for money.

It is to that end that the Ghana Supreme Court affirmed the constitutional requirement that transactions involving grants/concessions by GoG for the exploitation of mineral/water/natural resources must be scrutinized and approved (ratified) by Parliament (Ndebugri v. AG (2016)).

Having said that, let’s not pretend that parliamentary scrutiny of public agreements means much in Ghana. The breadth and width of most public agreements, including those involving natural resources, require extensive and diligent scrutiny. However, there’s enough evidence that in most cases these transactions are treated with so much haste that some of the most glaring technical flaws are ignored.

For instance, in 2016, two bulky Development Agreements between GoG and two local subsidiaries of Gold Fields Ltd. of South Africa—Gold Fields Ghana Ltd. (Tarkwa) and Abosso Gold Fields (Damang)—containing technical legal language and complex fiscal provisions were sent to Parliament five days after signature, tabled for discussion a day later, and it took the Full House 10 minutes to discuss the motion and vote to ratify the agreements!

A total of 6 days in all from signature by the parties to final parliamentary ratification of two major agreements governing the exploitation of a key natural resource over the next decade! Surely, even the lawyers for Gold Fields must have taken a longer period to draft or review (assuming we had a model agreement to begin with) the technical details of those agreements. Prof. Akilagpa Sawyerr catalogues many such scandalous treatments of major public agreements in a 2018 paper.

Parliamentary ratification, however important, is just one of many parts of a robust engine of laws designed to ensure Ghanaians do not get the short end of the stick in the exploitation and management of natural resources. Beyond parliamentary scrutiny, there are other equally important regulatory compliance issues. The last time I checked, there are at least seven domestic legislations designed to protect water bodies and the environment from the excesses of mineral/water/natural resource exploitation: (i) Environmental Protection Agency Act, 1994 (Act 490); (ii) Water Resources Commission Act, 1996 (Act 522); (iii) Community Water and Sanitation Agency Act, 1998 (Act 564); (iv) Water Use Regulations, 2001 (L.I 1692); (v) Drilling Licence and Groundwater; Development Regulations, 2006 (L.I 1827); (vi) The Environmental Assessment Regulations, 1999 (L.I 1652); and (vii) Minerals and Mining Act, 2006 (Act 703). This is not an exhaustive list.

The Water Resource Commission, for instance, is required to approve the proposal of comprehensive plans for water conservation prior to the grant of water rights under Act 522. It is an offence (punishable by a term of imprisonment of 2 years or a fine of Ghc 6000 or both) for a person to alter the flow of or pollute a water resource under Act 522. The Minister for Works and Housing, under Act 522, may by an Executive Instrument (EI) declare that an area is part of a protected catchment area to protect water resources where he is satisfied that a serious water deficiency exists or is threatened.

The EPA, under Act 490, is also clothed with the responsibility of prescribing standards and guidelines relating to water and other forms of environmental pollution including the discharge of waste and the control of toxic substances.

Mining is listed under L.I 1652, as an activity for which an environmental impact assessment is mandatory prior to grant/approval of a license. An environmental permit is required for mining under L.I 1652. The Forestry Commission, under Act 571, is responsible for managing forest reserves and protected areas. Certain privileges granted to holders of mineral rights in respect of water use under Section 17 of Act 703 are subject to the approval of the Water Resources Commission under Act 552. The compliance issues in the above-mentioned legislation are too extensive to catalogue in this short write-up. If the state’s bureaucracy managed and faithfully ensured rigorous compliance as they swore to do, we wouldn’t have the scourge of galamsey and an imminent water crisis on our hands.

There are also several international instruments which impose obligations on the state to protect and preserve water bodies/resources from pollution and significant harm.

In sum, galamsey is largely not a legal problem. It’s a political one. So whether new licenses have received parliamentary ratification (as argued elsewhere) is, in my view, not consequential.

Why are these laws not enforced? Because the bureaucracy and their political appointing authorities do not find it politically expedient to do so! That is the issue we have on our hands. We must break down the political economy of galamsey and figure out how to deal with it; either through electoral channels, judicial intervention or civic action.