THE LAW VERSUS GALAMSEY

The law versus galamsey

Source: Ghana | Cameron Duodu |
Date: 22nd-september-2017 Time:  5:24:06 pm

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One of the revelations that came to light from a statement made by the “Small-scale Miners in the Ashanti Region”, in explaining the desire of its members to go on a demonstration to “register their displeasure at the Government's stance towards small-scale mining”, was that the organisation harbours misapprehensions about the law relating to galamsey.

The organisation is, in fact, not the only body in Ghana that is confused about the law on galamsey. The Ministry of Lands and Mineral Resources itself; the Minerals Commission; the Forestry Commission, the Environmental Protection Agency and the Water Resources Commission are all bodies that are equipped with laws and regulations meant to empower them to ensure that our water-bodies and rivers and streams are not destroyed by the galamseyers. But they seem to be either unaware of these powers or have negligently failed to exercise them.

The Minerals Commission, in particular, must bear the greater part of the responsibility for the confusion that surrounds our laws on mining, generally, and galamsey in particular.

You see, the question that needs to be asked is this: does the Minerals Commission explain to applicants who go to apply for licences to engage in mining, that after they have satisfied the Commission's requirements and been given licences, those licences cannot be used until they have been ratified by Parliament?

Ratification of licences by Parliament, in this case, is not one of those laws that can be overlooked either by the Minerals Commission or its parent Ministry or brushed aside with legislative instruments and other subsidiary regulation. For it is a constitutional requirement, which means that until the Constitution is amended, that provision takes precedence over all other laws in Ghana. This is what the Constitution says in Article 268 (1):

QUOTE: ”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.” UNQUOTE

No curve, no bend! That's what the Constitution says and anyone who sets the Constitution aside and allows any mining licence to be used by anyone without prior Parliamentary ratification is taking the very big risk of acting unconstitutionally. And not even the President is allowed to act unconstitutionally.

Indeed, Article 268(1) is so clear that the Supreme Court would take only five minutes to decide that it is unambiguous and that whoever disregarded it was acting unconstitutionally. And [probably] should be PUNISHED!

It may be asked: why at all did the writers of the 1992 Constitution make that provision? After all, the minerals are held in trust by the President for the state of Ghana, who appoints the Ministers, who appoint the members of such bodies as the Minerals Commission. Surely, at each level, each body should be trusted to carry out its functions without Parliamentary intervention?

I think that the provision requiring Parliamentary ratification of mining licences is, in fact, one of the more ingenious Articles in the 1992 Constitution. You see, mining licences are almost always the subject of strong controversy, and it is only fitting that MPs, whose constituents look up to them to use their unrivalled local knowledge to protect their interests, should, of necessity, be provided with an opportunity to say, “No – that concession would destroy River A or Stream B and so should not be granted.” The Constituents of an MP can draw his attention to such a potential destruction of water bodies by a mining undertaking, even if he is not already aware of it himself (which he should be!).

Another issue on which the “Small-scale Miners Association” is confused pertains to its claim that members of the Association consider galamsey as their “legal employment”. They repeat the fiction that in wishing to demonstrate in favour of the unfettered continuation of galamsey, the members of the Association would be demanding of the Government, “their constitutional right to work.”

But the same Constitution cannot lay it down that engaging in mining without a licence ratified by Parliament is unconstitutional, and at the same time, designate that unconstitutional mining activity as a “right to work”, can it?

It is an abuse of language, anyway, to describe the act of destroying rivers, streams and water-bodies in furtherance of galamsey, as engaging in “legal work”. For if an activity is illegal a priori, then the “work” it involves cannot be legal, either. But, more important, if the Ghanaian populace allows any section of the community the “right” to arrogate to itself the “right” to visit wanton devastation upon one of the most treasured gifts given by of Nature to the people of Ghana -- namely, good, clear, clean water – then the populace will be abdicating its own right to a continued existence on the land its ancestors bequeathed to it. To misconstrue the monstrous activity of knowingly polluting Ghana's rivers and streams as a “constitutional right to work” is to debase the word “work”, whose noble and heroic tenets are acknowledged in the term, “the dignity of labour.” What “dignity” accrues from starving one's own people of clean water?

Besides, some misguided people may consider murder, armed robbery or rape as “work” from which they can “make a living”! Should society sit idly by whilst such misguided people carry out their horrendous abuses of the right to life and peace of their fellow human beings, in the mistaken belief that since such “work” enables them to “make a living”, it is their right to engage in it? .Can any civilised society consent to such a diabolical perversion of the notion of “work”?

I repeat -- the Constitution of Ghana has, in no uncertain terms, made provision that no mineral licence granted to anyone in Ghana – whether for large-scale, medium-scale or small-scale mining--

is to be considered legal or valid unless it has been ratified by Parliament. Now, which “small-scale” miner can claim to be in possession of a licence ratified by Parliament? When was such ratification done? Why was it not debated in the House publicly for everyone to know that such a subject was being discussed by our elected Parliament, as is done with all legislation? If Parliament has not debated any such issue in recent memory, then is it not deceitful, ignorant and mischievous in the extreme for anyone to claim to be demonstrating in furtherance of his or her “constitutional right to work!”

I have a suggestion to make to the “Small-scale Miners Association” – if you don't like the law as it exists, then persuade the country to AMEND THE CONSTITUTION! Are you laughing? Don't laugh! Maybe the country will – seeing how it has been inexplicably tolerant of galamsey so far – be so stupid as to amend the Constitution and remove the provision that prevents the galamseyers to kill our rivers and streams and make Ghana uninhabitable by humans? I am sure the galamseyers have reason to imagine that Ghanaians can be that stupid? Well, let them put it to the test.

But, as matters stand, without a constitutional amendment, galamsey is illegal, period. Those who advocate its continuation are therefore inciting their fellow citizens to break the law by engaging in an illegal undertaking.

Of course, taking account of social realities, the NPP Government has said that it intends to provide imaginative opportunities for the galamseyers and the youth of the country, generally, as well as the long-term unemployed, to be gainfully employed. Ventures aimed at reclaiming the rivers and water-bodies already destroyed by galamsey are envisaged. These projects will provide plenty of work opportunities. And the work will be absolutely legitimate and socially useful.

What is incontrovertible is that Ghana's present population has no right whatsoever, in consideration of any right whatsoever, to allow its own interests to override the sacred right to life of the young people who will come after them. If our ancestors had destroyed our rivers, would our galamsey operators have managed to grow up and take up what they consider their “ constitutional right to work”? Where in the world is it allowed that one generation's “constitutional right to work” should result in the decimation of the unborn generations that should follow them? The very idea is a crime against humanity, no less.

No – the country has heard too much nonsense from the galamseyers. It is time for all right-thinking citizens of Ghana, therefore, to say, “Enough!” to them. Those among us who rationalise the galamseyers' selfishness and greed with such arguments as “they just want to earn a living” should be ashamed of themselves. For it cannot be repeated often enough that murder, armed robbery, banditry and burglary can also provide people with a livelihood. But civilised society does not countenance them, for the all-important reason that they are immensely anti-social.

Please let us think less of ourselves and more of our children and their children and – their children's children. If our ancestors had not thought about us, would we be here? Would we?

Nonsense is nonsense! Galamsey is nonsense. Let us destroy it before it destroys our nation.

The organisation is, in fact, not the only body in Ghana that is confused about the law on galamsey. The Ministry of Lands and Mineral Resources, the Minerals Commission, the Forestry Commission, the Environmental Protection Agency and the Water Resources Commission are all bodies that are equipped with laws and regulations meant to ensure that our water-bodies and rivers and streams are not destroyed by the galamseyers. The Minerals Commission, in particular, must bear the greater part of the responsibility for the confusion that surrounds our laws on mining generally and galamsey in particular.

For the question that needs to be asked is this: does the Minerals Commission explain to applicants who go to apply for licences to engage in mining that after they have satisfied the Com mission's requirements and been given licences, those licences cannot be used until they have been ratified by Parliament?

Ratification of licences by Parliament, in this case, is not one of those laws that can be overlooked either by the Minerals Commission or its parent Ministry. For it is a constitutional requirement, which means that until the Constitution is amended, that provision takes precedence over all other laws in Ghana. This is what the Constitution says in Article 268 (1):

QUOTE: ”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.” UNQUOTE

No curve, no bend! That's what the Constitution says and anyone who sets the Constitution aside and grants licences which can be used without Parliamentary ratification, is taking a very big risk. Article 268(1) is so clear that the Supreme Court would take only five minutes to decide that it is unambiguous and that whoever disregarded it was acting unconstitutionally. And probably should be PUNISHED!

But why at all did the writers of the 1992 Constitution make that provision? After all, the minerals are held in trust by the President for the state of Ghana, who appoints the Ministers, who appoint the members of such bodies as the Minerals Commission. Surely, at each level, each body should be able to carry out its functions without Parliamentary intervention?

I think, in fact, that the provision of Parliamentary ratification of mining licences is one of the more clever Articles in the 1992 Constitution. Mining licences are almost always the subject of strong controversy, and it is only fitting that MPs, whose constituents look up to them to use their local knowledge to protect their interests, should, if necessary, have an opportunity to say, “No – that concession would destroy River A or Stream B and so should not be granted.”,

Another issue on which the “Small-scale Miners Association” is confused is with regard to its claim that members of the Association consider galamsey as their “legal employment”. They repeat the fiction that in wishing to demonstrate in favour of the unfettered continuation of galamsey, the members of the Association would be demanding of the Government, “their constitutional right to work.”

But destroying rivers, streams and water-bodies in furtherance of galamsey, is not to engage in “legal work” but to visit wanton devastation upon one of the most treasured gifts given by of Nature to the people of Ghana, namely, good, clear, clean water. To misconstrue the pollution of Ghana's rivers and streams as a “constitutional right to work” is to debase the word “work”, whose noble and heroic tenets are acknowledged in the term, “the dignity of labour.”

Some people may consider murder, armed robbery or rape as “work” and make “a living” out of such horrendous abuses of their fellow human beings. But can any civilised society consent to such a diabolical perversion of the notion of “work”?

Besides, the Constitution of Ghana as has been stated in no uncertain terms, our Constitution says that no mineral licence granted to anyone in Ghana – whether for large-scale, medium-scale or small-scale mining, is considered valid unless it has been ratified by Parliament. Now, which “small-scale” miner can claim to be in possession of a licence ratified by Parliament? When was the ratification done? Why was it not debated in the House for everyone to know that such a subject was being discussed by our elected Parliament? If it is the case that Parliament has not debated any such issue in recent memory, then it is deceitful, ignorant and mischievous for anyone to claim to be demonstrating in furtherance of his or her “constitutional right to work!”

Galamsey is illegal, period. Those who advocate its continuation are therefore inciting their fellow citizens to break the law by engaging in an illegal undertaking/

The NPP Government has proclaimed its intention to seek imaginative ways of employing the youth of the country, and the unemployed, generally. Ventures aimed at reclaiming the rivers and water-bodies already destroyed by galamsey are envisaged. These projects will provide plenty of work opportunities. And the work will be absolutely legitimate.

Ghana's present population has no right to allow its own interests to override the right to life of the young people who will come after them. If our ancestors had destroyed our rivers, would our galamsey operators have managed to grow up and take up what they consider their “ constitutional right to work”? Where in the world is it allowed that one generation's “constitutional right to work” should mean the decimation of the generations that should follow them?

The country has heard too much nonsense from the galamseyers. It is time for all right-thinking citizens of Ghana, therefore, to say, “Enough!” to them. Those among us who rationalise the galamseyers' selfishness and greed with such arguments as “they just want to earn a living” should be ashamed of themselves. For murder, armed robbery, banditry and burglary can also provide people with a livelihood.

But civilised society does not countenance them, for the all-important reason that they immensely anti-social.

Please let us think less of ourselves and more of our children and their children and – their children's children. If our ancestors had not thought about us, would we be here? Would we?

Nonsense is nonsense! Galamsey is nonsense. Let us destroy it before it destroys our nation.

 

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