The Minister of Lands and Natural Resources, Mr Samuel Abu Jinapor, has justified in Parliament the government’s decision to burn down excavators and other mining equipment that are being used for illegal small-scale mining (galamsey) in red zones -waterbodies and forest reserves – in Ghana.
He said decommissioning and/or de-mobilising of equipment, including Changfang, were necessary measures being taken to protect and safeguard the country’s national environment for posterity in accordance with sacred duty bestowed on the government by the framers of the 1992 Constitution under Article 36(9).
“I will respectfully but forcefully contend that there is ample legal justification for the conduct of the government in decommissioning or demobilization of excavators and Changfang illegally used to destroy our environment,” he stated.
Question
Mr Jinapor made the justification in Parliament on Wednesday (June 30, 2021) when he answered a question by the National Democratic Congress (NDC) Member of Parliament (MP) for North Tongu, Mr Samuel Okudzeto Ablakwa, who asked the minister the legal and policy justification for the burning of excavators in the ongoing fight against illegal small-scale mining (galamsey).
Legal justification
Responding, Mr Jinapor said when a country was confronted with an extraordinary problem, extraordinary measures ought to be deployed.
He said the use of heavy machinery, such as excavators, for illegal mining in, and/or, near forest reserves and water bodies was an extraordinary problem which required the use of extraordinary measures to deal with.
Giving a legal justification to back the state’s action, he cited Article 36(9) of the Constitution, which formed part of “The Directive Principles of State Policy”, which stated that “The State shall take appropriate measures needed to protect and safeguard the national environment for posterity and shall seek co-operation with other states and bodies for purposes of protecting the wider international environment for mankind.”
He also quoted Article 41(k), under the same Chapter Six of the Constitution, which provided that “The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen to protect and safeguard the environment.”
“Mr. Speaker, the combined effect of these two articles of the Constitution is that citizens, who seek the protection of the law, have a duty to protect and safeguard the environment, and the State, as the custodian of the environment, has a duty to take measures necessary to ensure that the environment is protected for posterity,” he said.
Heinous crimes
He pointed out that one of such measures the state had adopted, after trying several unsuccessful measures, was to de-commission and/or de-mobilize equipment used in illegal mining so that the perpetrators of “these heinous crimes” would not go back to continue the illegality with the same equipment.
While a lot of attention was focused on those who mined without licence, he said there were a lot of illegalities that were perpetrated even by persons holding valid mineral rights, mining in unauthorised areas, including the Red Zones contrary to section 89 of the Minerals and Mining Act, 2006 (Act 703).
He also accused those with valid mineral rights of drawing and using water without the requisite permit from the Water Resources Commission contrary to section 17 of Act 703, mining without regard to good mining practices and environmental protection contrary to section 93 of Act 703; and using mercury contrary to regulation 473 of the Minerals and Mining (Health, Safety and Technical) Regulations, 2012 (LI 2182)).
A-G’s advise
Mr Jinapor told the House that he had been advised by the Attorney-General that the action being taken by government was within the remit of the country’s laws.
He established that Act 995 of the Constitution
He also cited various legal authorities and cases including that of Takoradi Flour Mills Ltd. v Samir Faris [2005 – 2006] SCGLR 882, where the Supreme Court, speaking through the renowned Ansah JSC, held that “The law was settled that no one could found an action on an illegal act… Where the express words of a statute expressly proscribed or forbade a transaction, which a plaintiff sought to enforce, no court will lend its assistance or give effect to it.”
“In the recent case of Exton Cubic Ltd v Attorney-General and Others, delivered on June 14, 2018, the High Court in Kumasi was emphatic that a person who used equipment illegally for mining was not entitled to any monetary compensation from the court.
“Mr. Speaker, I am not oblivious of the provisions of the Minerals and Mining (Amendment) Act, 2020 (Act 995), which requires seizure of the equipment used for illegal mining, the successful prosecution of the people involved, before confiscation of the equipment and its eventual disposal by the Minister for Lands and Natural Resources.
