Galamsey in Ghana
I have come to realize that, burning machines used in galamsey activities can never be the panacea in terms of dealing with the destruction of our water bodies and our forest reserves.
Inasmuch as I strongly believe that this approach adopted by government is not one that is sanctioned by law, I also think that, there could be a simplified approach that government can adopt to weed out this cancerous destruction completely without difficulties.
It is an established principle that, exercise of executive act either by the President, his agents or assigns must be within the limit laid down within the 1992 Constitution of the Republic of Ghana.
In Youngstown Tube and Co v Sawyer, the court faulted the U.S government decision which was sanctioned by emergency to safeguard the U.S economy against inflationary pressures created by the market force.
According to the court, the government's decision to exercise an executive act in the said seizure of materials by the steel company ought to have been fortified by an express provision of the law passed by congress and since same was not done, that executive act purported to have been exercised by the U.S government was declared unconstitutional by the court.
With regards to the burning of earth moving machines used in galamsey, same must be provided by the Minerals and Mining Act passed and amended by Parliament by successive governments. let me hasten to add that, despite the public opprobrium particularly in respect of government approach which is geared towards protecting our environment and water bodies, I am also of the view that, the burning alone is enough to deter others who may be tempted to venture into galamsey in the near future.
It is instructive to note further that, the idea behind imposing sanctions on people who disobey the law is hinged on deterrence. This illustrious position had the blessing of the Supreme Court in Samuel Agoe Mills Robertson v The Republic. Same also had the blessing of the High Court in Melfy v The Republic. In a nutshell, any form of action by those in authority that inject pains or hardship or suffering to those who go contrary to the law falls in line with the hallowed concepts of punishment accepted in our jurisprudence.
If we are to balance the extreme actions of government and the activities of these criminals, we will all come to agree with the blatant fact that, government cannot be faulted in the sense that, to every action, there is equal and opposite reaction as underpinned by Newton's third law of motion. These criminals are engaged in destruction so if government is also responding in an equal measure by setting their machines ablaze same must not be faulted.
When the government recently challenged those who do not agree with this drastic measures to go to court to vindicate their claims, the government was however convinced that, those whose machines have been set ablaze for engaging in an illegality may not be able to gather courage to go to court. This position by government reminds all of us of the decision by the High Court when some group of private lottery operators decided to challenge certain decisions by the Ghana Lottery Authority.
In Republic v High Court[ Ex parte Ghana lottery Authority] Interested Party,Ghana Lottery Operators, the supreme court made it clear that, if those who are supposed to follow the dictates of the law decide not to do so, they risk being denied any assertive right in the face of equity in any action against such conduct. This is part of the maxims of equity which says, "he who seeks equity must do equity."
A tenant who doesn't want his landlord to eject him from his premises must also be willing to be pay rentals as and when they fall due. This however is applicable to those destroying our water bodies. " If you don't want your machines to be disabled, follow the Minerals and Mining regime.
Before I end, let me proffer these simple solutions that if faithfully and meticulously adopted by government, the fight against galamsey will see the light of day. They are
- Government should decentralize the task force to include DISEC and RESEC
- Current MMDCEs whose jurisdiction recoeded galamsey activities must not be reappointed.
- Government must sign a bond with new MMDCEs and that bond must be part of their terms of appointment. It shoud read" Your appointment would be terminated if attention of government is drawn to any galamsey activities within your territory"
- Regional and District Police Commanders must also be given a specified mandate in this fight. The mandate must also come with a condition that," you risk demotion should galamsey activities be found within your territory"