Testing new Goldbod CEO’s ‘new law’ on small-scale mining against the law

“Once it’s not a water body; it’s not a forest reserve or… place like a roadside, whether the person has a licence or not; the government says we should allow the person to mine and register and regularise them” – CEO, GoldBod

1. Section 9 of the Minerals and Mining Act, 2006 (Act 703) provides that a person shall not conduct mining, prospecting or exploration on land in Ghana unless granted a mineral right under the Act — and this applies even where the person owns or holds rights in the land. Section 82 separately provides that a person shall not engage in asmall-scale mining operation without a licence granted by the Minister or an authorised officer, and it does so "notwithstanding any law to the contrary."

2. Mining without that licence is not merely irregular; it is a crime. Under section 99 as originally enacted, small-scale mining without the Minister's licence attracted a minimum fine of 1,000 penalty units and up to three years' imprisonment. The Minerals and Mining (Amendment) Act, 2019 (Act 995) dramatically increased this. According to the Minerals Commission, a Ghanaian engaged in unlicensed mining or mining support services faces a fine of 10,000 to 15,000 penalty units and 15 to 25 years' imprisonment; a non-Ghanaian faces 100,000 to 350,000 penalty units and 20 to 25 years, with deportation after sentence. Equipment and product are seized on arrest and must be forfeited to the State on conviction.

3. So the instruction described is an instruction to permit the commission of a crime carrying, for a Ghanaian, a mandatory minimum of fifteen years.

4. A ministerial or administrative direction that unlicensed persons "should be allowed to mine" is therefore ultra vires. The Minister's statutory power under section 82 is a power to grant licences. It is not a power to authorise mining without one. A public officer who purports to exercise a power he does not have acts outside the law, and Article 296 — which requires that discretionary power be exercised fairly, candidly and not arbitrarily or capriciously — bites on top of that.

5. Section 18 of Act 703 (Minerals and Mining Act) requires environmental and forestry clearance from every mineral right holder — not only from those operating in forests or rivers. A site that is neither a water body nor a forest reserve nor a roadside is still unlawful to mine without an environmental permit.

6. The statement's implicit test — anywhere that is not expressly prohibited is permitted — reverses the statutory scheme, which is a permission-based regime: nothing is permitted unless affirmatively licensed.

7. Formalisation of artisanal and small-scale mining is not contrary to Ghanaian law. It is lawful policy, and it is arguably obligatory. As a party to the Minamata Convention on Mercury, Ghana must, under Article 7 and Annex C, develop a national action plan for artisanal and small-scale gold mining, and formalisation is an express element of that plan. The Minister has express power under section 89 to designate areas, and under section 82 to grant licences. A properly structured fast-track registration drive, the Community Mining Scheme model, and district-level licensing support are all lawful vehicles.

8. The illegality lies entirely in the sequence. The law permits: register first, then mine. The statement describes mining first, then registering. Regularisation cannot retroactively cure a completed offence. Once unlicensed mining has occurred, the offence under section 99 is complete. Subsequent registration does not expunge it. Only a nolle prosequi by the Attorney-General under Article 88(3)–(4) or a presidential pardon under Article 72 can affect criminal liability, and neither is available as a general administrative policy.

9. The Goldbod CEO's assurance is no defence to the miner. Mistake of law does not excuse, and no estoppel can arise against a statute — a citizen cannot acquire by official representation a right that Parliament has withheld. The miner who relies on this assurance is exposed to fifteen years' imprisonment; the official who gave it faces no exposure at all. That asymmetry is itself an argument that the practice is indefensible.

10. An official who directs that unlicensed mining be permitted may be:

• liable as an abettor under the Criminal Offences Act, 1960 (Act 29), s.20, to the

• liable under the Act 995 offences relating to facilitating participation in small-scale mining and providing equipment contrary to law;

• in breach of the following provisions of the 1992 Constitution: Article 284 (conflict of interest) and Article 296;

• in breach of the State's Article 36(9) duty to protect and safeguard the national environment, with the citizen's reciprocal duty under Article 41(k).

The CEO cannot claim ignorance of the law. This is not a slip of the tongue. This is a deliberate strategy to test Ghanaians' resolve to fight the galamsey menace, which poses an existential threat to the State. It confirms a bold attempt by the NDC to take us a step deeper into galamsey and to confirm that Ghana is a galam-state. This statement undermines all the so-called efforts that the government has been touting as a success story in its fight against galamsey. It also affirms, in no uncertain terms, the allegation that at least some of the gold Goldbod buys is linked to galamsey.

Indeed, this is not the first time the current government has made pronouncements on galamsey, which suggests an unwillingness to help fight the galamsey menace. Yet, overall, society's reaction to them has been largely weak. So they are emboldened to stretch it further.

We should not lie down and let this happen. We voted the NDC into power. We did not give them the power to trample over us. The power is still with us. We must take all legal action to resist galamsey.