12th April 2017
The Honourable Minister
Ministry of Lands and Natural Resources
The Chief Executive
RE: PARLIAMENTARY RATIFICATION OF MINERAL RIGHTS GRANTED AND MINING BY FOREIGNERS
OccupyGhana® is a civil society organization that is committed to good governance.
We are currently concerned about, first, the unconstitutionality or otherwise of small sale mining licences and mining leases granted to persons for the purposes of exploiting Ghana’s mineral wealth. Second, we are concerned about the legality or otherwise of foreigners, mostly Chinese, engaged in small scale mining in Ghana.
Our Constitution demands in Article 268(1) that all such grants require parliamentary ratification without which the grants would be irregular, unconstitutional, patently void and incapable of redemption. Consequently, all licences and leases granted for exploitation, but without parliamentary ratification, do not and cannot legally confer the requisite exploitation mineral rights on the recipients.
OccupyGhana® is concerned: not only has Parliament not ratified the vast majority of such grants (which is a breach Article 268(1) of the Constitution) but Parliament has also never exercised its Article 268(2) mandate to grant any exemption from ratification for any such “transactions, contracts or undertakings.” We are also not aware of any authorisation by Parliament of “any other agency of government to approve the grant of [any such] rights, concessions or contract” without the need for parliamentary ratification under Article 269.
We are however aware that in 2009, the Commission and Ministry applied to Parliament for the exemption under Article 268(2) so that you may make small scale mining grants without parliamentary ratification. The grounds for this application included the claims that “it would be cumbersome to present each mining lease to Parliament for ratification… impose an unnecessarily heavy administrative burden on Parliament, the Minister and the Minerals Commission, and lead to considerable delay in the development of new mining projects.” To the best of our knowledge, Parliament has either ignored or refused the application. Yet, by your own estimates in April 2009, you issue and have continued to issue, an average of 400 mining leases a year or 8 small scale mining licences each week!
FOREIGNERS IN SMALL SCALE MINING
Further, section 99 of the Minerals and Mining Act, 2006 (Act 703) makes it criminal for foreigners to undertake or participate in, or for a Ghanaian to engage or employ a foreigner in small scale mining. We are therefore shocked to see the number of foreigners, mostly Chinese, who are freely mining in Ghana, some of whom claim to have “permits.” It appears to us to be well-nigh impossible that these foreigners have acquired proper mining leases after going through the statutory process of acquiring reconnaissance and then prospecting licences. Therefore, these foreigners are either operating criminally under small scale mining licences or, worse, with fake licences or no licences at all.
We therefore write to demand proof that in respect of all existing licences and leases for exploitation of minerals and issued by the Minerals Commission, the Commission has sought and obtained the requisite parliamentary ratifications. Absent proof of ratification, we do not think that the announced freeze on further grants is sufficient. What we demand is the cancellation of all unratified licences and leases already granted forthwith and then the immediate, robust, and verifiable implementation of your decision to stop further grants.
We also demand from you proof of the licensing, if any, of any and all foreigners engaged in small scale mining in Ghana. If no foreigners have been licensed, kindly indicate that too.
We must respectfully request that you provide the required proof at your earliest convenience and in any event within 7 working days from the date of this letter. We are copying the Attorney-General on this letter because if you do not respond within the time stated, we will proceed to court without further notice to you or the Minerals Commission.
Yours in the service of God and Country,