Is the deportation of illegal miners by the Mahama government illegal? Here's what the law says

GhanaWeb Feature by Ishmael Batoma

The John Dramani Mahama government has faced significant backlash over its decision to deport illegal miners (galamseyers) without first prosecuting them.

This decision, initially announced by the then Minister for the Interior, Mohammed-Mubarak Muntaka, was later corroborated by the Minister for Foreign Affairs, Samuel Okudzeto Ablakwa, and resulted in the deportation of several Chinese nationals caught engaging in illegal mining.

According to a report by citinewsroom.com, a source at the Ministry of the Interior explained that the new approach allows illegal small-scale miners, including Chinese nationals, to be prosecuted in their home countries.

This is due to loopholes in Ghana’s justice delivery system, which have allowed some foreigners involved in galamsey to escape justice.

“The aim is to ensure swift justice and reduce the risk of recidivism among offenders who manipulate court delays and lax bail conditions,” an official of the ministry is quoted as saying.

The report also noted that the Chinese government, whose nationals are often implicated in illegal mining, supports Ghana’s move, viewing the involvement of their citizens in galamsey as a disgrace and damaging to diplomatic relations.

Despite these explanations, sections of the Ghanaian public remain dissatisfied with the government’s actions, with some threatening to take legal action over the deportations carried out without trial.

Critics argue that the decision to deport without prosecution violates Ghana’s laws on illegal mining.

But are these claims accurate? What do Ghana’s mining laws actually say?

Minerals and Mining Act

The main legislation governing mining activities in Ghana is the Minerals and Mining Act, 2006 (Act 703), as amended by the Minerals and Mining (Amendment) Act, 2019 (Act 995).

The amendments to the law introduced stiffer punishments for both Ghanaians and foreigners found engaging in illegal mining.

Section 99(A) of the Act states that Ghanaians caught engaging in illegal mining face a prison term of up to 25 years:

“A person who buys or sells minerals without, (a) a licence in accordance with section 6, 82, 97 or 104;

(b) a valid authority granted under this Act or any other enactment,

"commits an offence and is liable on summary conviction to a fine of not less than ten thousand penalty units and not more than fifteen thousand penalty units, and to a term of imprisonment of not less than fifteen years and not more than twenty-five years.”

The Act also stipulates penalties for Ghanaians who contract or assist foreigners in engaging in illegal mining:

“A Ghanaian who—

(a) permits a non-Ghanaian to undertake or participate, or

(b) facilitates the participation of a non-Ghanaian,

in mining contrary to this Act, commits an offence and is liable on summary conviction to a fine of not less than thirty thousand penalty units and not more than one hundred thousand penalty units, and to a term of imprisonment of not less than fifteen years and not more than twenty-five years.” – Section 99(5)

The law imposes even harsher penalties on foreigners who engage in illegal mining. Section 99(3) states:

“A non-Ghanaian who undertakes a mining operation or facilitates the participation of any person in mining contrary to a provision of this Act commits an offence and is liable on conviction to— (a) a fine of not less than one hundred thousand penalty units and not more than three hundred and fifty thousand penalty units; and

(b) a term of imprisonment of not less than twenty years and not more than twenty-five years; or

(c) both the fine and the imprisonment.”

What the Act says about deportation

The law does make provisions for the deportation of foreigners involved in illegal mining, but only after they have served their prison terms.

“Where a non-Ghanaian who is liable on summary conviction under subsection (3) is a person liable to deportation under section 35 of the Immigration Act, 2000 (Act 573), that non-Ghanaian shall, where sentenced to a term of imprisonment, serve the full sentence before deportation in accordance with subsection (3) of section 37 of Act 573.” – Section 99(4)

Ghana’s law on deportation

While the mining law stipulates that convicted foreign illegal miners must serve their sentence before deportation, the Immigration Act, 2000 (Act 573) grants the Minister for the Interior the discretion to deport individuals.

Section 36 of the Act states:

“(1) The Minister may by executive instrument order the deportation of any person liable to deportation.

(2) The order may be made subject to such conditions as the Minister may impose.

(3) A deportation order may include the dependents of the person to be deported if the Minister so directs.”

Section 37(3) adds:

“Where a person to be deported is serving a sentence of imprisonment, he shall, unless the Minister otherwise directs, complete the sentence.”

Conclusion

While the government's decision to deport illegal miners is technically legal under the Immigration Act, it raises several important questions.

Deporting illegal miners without prosecution appears to be a convenient solution. One justification for this approach is to prevent foreigners from exploiting weaknesses in Ghana’s legal system.

However, Ghana’s borders are also notoriously porous, perhaps even more so than its legal framework, raising concerns that deported individuals could return undetected.

A clear example is that of alleged galamsey kingpin Aisha Huang, who reportedly re-entered the country after her deportation.

Additionally, what becomes of the environmental destruction caused by illegal miners and the local collaborators who enable them? It is virtually impossible for foreigners to engage in galamsey without assistance from Ghanaians, which is why the law includes harsh penalties for locals who aid and abet such activities.

Perhaps the Minister for the Interior should publicly clarify the government's position and provide a detailed explanation of the deportation strategy, including how it fits into a broader, long-term plan to combat illegal mining in Ghana.