Samson’s Take: All mining licences, leases unconstitutional and invalid

Our Supreme Court as recently as 2016 held that: “[t]he expression, ratification, in the context of article 268 simply means approval.

One does not have to travel far to find that that is so...The purpose of requiring parliamentary approval o f agreements or measures of critical national importance has been held by this court to be to ensure transparency, openness and parliamentary consent in the national interest,

” The court continued that “[t]his provision [article 268] is clear and unambiguous in so far as the prior ratification by Parliament was concerned….”

So what is this article 268 and what has it got to do with the peoples fight against galamsey? Well, Kojo Yankson drew my attention to it. I read, did what I was trained to do reading legal documents like a constitution. Then OccupyGhana’s Ace Ankomah threw it at me with questions, work and later with what the Supreme Court says about it. I concluded, as OccupyGhana is already pushing, that this is a most potent way to quickly halt the threat of gold mining especially as manifested in small scale mining and its antecedent galamsey. Here is this provision:

Protecting Natural Resources

268.

(1) Any transaction, contract or undertaking involving the grant of a right or concession by or on behalf of any person including the Government of Ghana, to any other person or body of persons howsoever described, for the exploitation of any mineral, water or other natural resource of Ghana made or entered into after the coming into force of this Constitution shall be subject to ratification by Parliament.

(2) Parliament may, by resolution supported by the votes of not less than two-thirds of all the members of Parliament, exempt from the provisions of clause (1) of this article any particular class of transactions, contracts or undertakings.

269.

(1) 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 co-ordination of the policies in relation to them.

(2) Notwithstanding article 268 of this Constitution, Parliament may, upon the recommendation of any of the Commissions established by virtue of clause (1) of this article, and upon such conditions as Parliament may prescribe, authorise any other agency of government to approve the grant of rights, concessions or contract in respect of the exploitation of any mineral, water or other natural resource of Ghana.

I continue with the Supreme Court’s discussion of this provision. It said that: “[t]he words or expressions ‘undertaking’, ‘contract’ and ‘transaction’ as used in Article 268(1) of the Constitution have no special meanings; they must be given their ordinary meanings in order to give effect to this provision. In the law of contract the person whose ratification of a contract is required is a necessary party to give the contract its validity and legal enforceability. Without the ratification, either expressly or impliedly given, such an agreement is invalid.”

So, there is no need belabouring the point. There doesn’t seem to be any evidence this mandatory prior approval by parliament of any mining licence or lease. Consequently all licences and leases granted by the Government either directly or acting together with or through the Minerals Commission et al are unconstitutional and void at law – they are as worthless as the pieces of paper they are written on. This is why our Supreme Court has always declared as unconstitutional, null and void important article 88(5) international contracts Ghana has entered into without prior parliamentary approval.

In the meantime, just what is the difficulty in ensuring strict enforcement of the laws particularly the Minerals and Mining Act against which the Lands ministry and the Minerals Commission have been perpetuating this unconstitutional conduct in the grant of licences and leases?

We can’t seem to follow the Kimberley Process Certification Scheme and our own enactments against trading in gold which are also meant to protect the environment against the irreparable damage of unregulated mining. Sections 89 and 106 provide sanctions ranging from a fine of up to GH¢36,000 and/or five years in jail for selling or buying minerals without a licence or valid authority, undertaking illegal small scale mining or simply violating the law. Foreigners are prohibited from small scale mining and when caught are liable to be fined up to GH¢360,000 and/or go to jail for twenty years. If they are engaged by a Ghanaian to undertake or participate in small-scale mining, the fine ranges between GH¢24,000 and GH¢240,000 and/or five and ten years in jail. And for such foreigners, their equipment will also be seized and may be confiscated by the State.

Let’s stop complaining about the devastation of galamsey!

Samson Lardy ANYENINI