Public officials who direct or permit mining without the requisite licences could face criminal liability for abetting an offence, Professor Appiagyei-Atua, an international law professor at the University of Ghana School of Law, has warned. His intervention raises fresh questions about the legal framework governing the formalisation of Ghana’s small-scale mining sector.
His warning follows remarks attributed to Ghana Gold Board (GoldBod) Chief Executive Officer Sammy Gyamfi, suggesting that miners operating outside restricted areas should be allowed to continue their activities while completing registration and regularisation.
The comments have triggered a legal debate over whether the government’s efforts to bring artisanal and small-scale miners into the regulated sector can permit mining to proceed before the necessary authorisation is secured.
In an opinion article responding to the remarks, Professor Appiagyei-Atua argued that such an approach would conflict with the Minerals and Mining Act, 2006 (Act 703), which requires miners to obtain the appropriate mineral rights and licences before undertaking mining operations.
“Mining without that licence is not merely irregular; it is a crime,” he stated.
He cited sections 9 and 82 of the Act, arguing that the statutory powers governing small-scale mining do not authorise public officials to permit unlicensed operations while miners await approval.
“The Minister’s statutory power under section 82 is a power to grant licences. It is not a power to authorise mining without one,” he said.
Regulatory uncertainty
The professor’s intervention highlights a potential conflict between the government’s objective of formalising small-scale mining and the legal requirements governing access to mineral resources.
According to him, allowing miners to operate on the basis that their activities are outside water bodies, forest reserves or roadsides would misinterpret the law.
“The statement’s implicit test — that anywhere not expressly prohibited is permitted — reverses the statutory scheme, which is a permission-based regime: nothing is permitted unless affirmatively licensed,” he argued.
The distinction is significant for mining operators, regulators and businesses involved in the gold supply chain, because the legality of mining operations depends on the requisite authorisation rather than simply the location of the activity.
Professor Appiagyei-Atua further warned that officials who direct or facilitate unlicensed mining could potentially face liability under section 20 of the Criminal Offences Act, 1960 (Act 29), which addresses abetment. He also raised concerns about possible liability under provisions governing the unlawful facilitation of small-scale mining.
His position suggests that public officials and other actors involved in implementing formalisation policies must ensure that administrative directives remain within the limits of the law.
Formalisation must follow licensing,
Ghana, Africa’s leading gold producer, has struggled to curb illegal mining, commonly known as galamsey, which has contributed to the pollution of water bodies and damage to forest reserves.
Formalising artisanal and small-scale mining has been a key part of efforts to regulate the sector, improve compliance and provide miners with a lawful route into the formal economy.
Professor Appiagyei-Atua acknowledged the importance of formalisation but insisted that it must be implemented in the correct sequence.
“The illegality lies entirely in the sequence. The law permits registration first, then mining. The statement describes mining first, then registering,” he said.
He argued that subsequent registration would not automatically erase an offence committed before a licence was obtained. He also cautioned that miners could not necessarily rely on assurances from public officials as a defence against prosecution.
To support the transition into legal mining, he proposed designating appropriate mining areas, accelerating licensing procedures and providing assistance to applicants at the district level.
Such measures, he argued, would allow authorities to pursue formalisation without compromising the legal requirements governing mining activities.
Calls for accountability
The professor also questioned whether permitting mining before licensing would be consistent with constitutional obligations governing the exercise of public discretion and environmental protection.
His warning places renewed emphasis on the responsibilities of officials involved in mining regulation, particularly as Ghana continues to balance the economic importance of gold production with efforts to tackle illegal operations.
He urged citizens to use lawful means to challenge activities they consider illegal.
“We must take all legal action to resist galamsey,” he said.
The legal implications of the remarks attributed to the GoldBod chief executive would depend on the applicable law, the precise nature of any directions issued and the facts of any specific case. The professor’s warning represents a legal argument and does not, in itself, establish criminal liability on the part of any individual.
THEBUSINESSMAIL
