LEGAL MINING IN GHANA
The 1992 Constitution (Constitution) provides the foundation for legitimate mining operations,
providing in article 257(6) that the state owns ‘every mineral in its natural state.’ The minerals are
‘vested in the President on behalf of, and in trust for, the people of Ghana.’ Although the
President is the trustee-agent of the minerals, article 269(1) vests the responsibility for regulating
and managing mineral utilisation, and coordinating mineral-related policies in the Minerals
Commission (MinCom) established by Parliament. Further, any transaction involving mineral
exploitation requires parliamentary ratification.
The Minerals and Mining Act, 2006 (Act 703), as amended governs the mining industry. Mining is
lawful in Ghana only where the Minister for Lands and Natural Resources (Minister), acting with
MinCom, has duly authorised it and Parliament has ratified the resulting transaction.
GALAMSEY
The term ‘Galamsey’ is used to refer to all unauthorised gold mining, irrespective of the size of it
or who carries it out. Historically, the vast majority of indigenes were frozen out of legal mining
because colonial legislation required demonstration of literacy, sufficient funds and successful
prospecting as conditions for mining. But, the discovery by indigenes, in the late 19 th century, that
mercury could be used to extract gold from sand residue, especially those left by the miners, led
to the steady growth of an ‘unauthorised’ industry to ‘gather-them-and-sell,’ which led the jargon
‘Galamsey.’ Galamsey is therefore illegal mining, often resulting in conflict with authorised mines
and authorities due to its proximity to their sites.
It was not until 1989, that small scale mining received legal recognition under the provisions of
the now-repealed Small Scale Mining Act, 1989 (PNDCL 218). Its provisions, among others,
defined small scale mining as mining by methods not requiring substantial expenditure or
specialized technology. It also authorised mercury use, banned explosives, and excluded
operators from paying income taxes or royalties.
Act 703 contains detailed provisions that regulate the entire mining sector. It also repealed and
replaced PNDCL 218, and regulates small scale mining, providing for the granting of licences
with necessary conditions, imposing a renewable 5-year term, allowing the Minister to revoke
licences, requiring licensees to mine efficiently, observe good practices, and protect the
environment, allowing explosive use with the Minister’s permission, and allowing licensees to
purchase mercury from only authorised dealers.
MITIGATION OF ENVIRONMENTAL IMPLICATIONS
The mining industry significantly impacts the environment, and laws enforce strict requirements
to minimise long-term adverse effects. A mineral rights holder is therefore required to obtain
necessary approvals from the Forestry Commission under the Forest Act, 1927 (CAP 157) if the
operations would involve entering a forest. And a mineral right holder may only use water
resources for mining purposes after obtaining approvals under the Water Resources Commission
Act, 1996 (Act 522).
Act 703 also required the permit of the Environmental Protection Agency (EPA) and compliance
with environmental regulations related to mineral exploitation. There are also detailed
environmental provisions in the Minerals and Mining (Health, Safety and Technical) Regulations,
2012 (LI 2182).
LI 2182 requires mining operating plans to include details on abandonment methods to protect
recoverable reserves and unmined resources. It also allows inspectors to inspect mines and
minimise environmental damage, ordering the cessation of operations and withdrawal of
personnel if necessary for safety, health, or the environment. The manager of a mine is obligated
to ensure safety, health, and environmental compliance by observing regulations and lawful
orders.
LI 2182 also provides, concerning gold processing plants that use cyanide, for operators to
conduct initial risk assessments for cyanide-related work practices, in order to protect
employees, the environment, and the public. It also mandates companies storing cyanide to
develop emergency procedures, avoid public and environmental exposure, ensure accessibility
to emergency services, and maintain a safe location to prevent environmental pollution.
Small scale mining licensees are not left out. LI 2182 provides that a small scale mining licence
holder must ensure the mine environment is free from environmental hazards. This includes
maintaining safe work environments, providing adequate information and supervision, educating
workers on occupational health and safety procedures, and ensuring the safe handling of plants,
substances and mercury.
The existing legal regime appears to us to be sufficiently comprehensive to ensure environmental
protection in legal mining. Thus, if harmful practices occur, the law must be applied, potentially
leading to suspension or cancellation of mineral rights. That is why our view is that instead of
advocating for a ban on mining, the advocacy should center on ensuring compliance with
environmental protection rules.
The issue of Galamsey significantly harms the environment due to a lack of adherence to legal
regulations. Since these operations are already prohibited by law, enforcing the existing laws
would likely reduce environmental damage. That is why we think that the emphasis should be
preventing illegal mining and then enforcing compliance.
However, if the call is for a ban or other halting of legal mineral operations, then critical legal
consequences would have to be borne in mind, and we shall discuss them in the next instalment.
For more information and updates contact the authors Ace Anan Ankomah, Senior Partner and
Kesewaa Dufie Donyina, Associate at LEX Africa’s Ghanaian member, Bentsi-Enchill, Letsa &
Ankomah – https://bentsienchill.com/
