Galamsey: Deporting, burning, rule of law
In Ghana’s fight against illegal mining (‘Galamsey,’) public sentiment has increasingly leaned toward swift and drastic action—deporting foreign nationals and burning excavators on sight.
But while the urgency is understandable, we must ask: are these actions consistent with the rule of law?
Deportation
Under the Immigration Act, 2000 (‘IA’), the Interior Minister has broad discretion to issue a Deportation Order by Executive Instrument, where in the minister’s opinion, a person’s presence is ‘not conducive to the public good.’
This general power seems wide enough to justify removing foreign nationals involved in Galamsey.
However, the Minerals and Mining Act, 2006 (‘MMA’) which is a later and more specific statute, sets out a narrower, more procedural path for deporting non-Ghanaian mining offenders.
Section 99 of the MMA imposes two conditions precedent to deportation: the individual must (i) be convicted by a court for undertaking an illegal mining operation, and (ii) serve ‘the full sentence.’
The somewhat inelegant drafting of particularly section 99(4) raises a legal dilemma: can the minister, using the general deportation powers under the IA, override the specific deportation regime under the MMA?
Can the minister deport a non-Ghanaian who is yet to be convicted, or has been convicted but is yet to be sentenced?
Even if we conclude that the MMA defers to the minister’s general power under the IA to truncate sentences to deport convicts, the minister must still wait for conviction and sentencing, before deporting.
The principle that a specific law overrides a general one when both apply to the same subject suggests the MMA should take precedence in matters concerning mining offences.
Otherwise, and if the minister may deport even if a mining offence is merely suspected, we risk undermining the legislative intent behind the MMA’s 2019-inserted stricter and more deliberate process.
Else, while Ghanaian Galamsey operators will serve jail terms, non-Ghanaians would simply be repatriated ‘home’ to enjoy previously repatriated savings from the Galamsey, or return to Ghana with another name and by another route.
The rule of law means we must uphold the law as written, not bypass it for convenience.
Destroying excavators
Similarly, destroying equipment used in illegal mining—particularly excavators—has sparked considerable controversy. Public support for immediate burning is strong, but the law prescribes a more structured approach.
The MMA again lays out five key steps before mining equipment may be disposed of:
i. Seize the equipment;
ii. Keep with the police;
iii. Convict the person(s) who used or provided the equipment;
iv. Court must also order forfeiture to the State; and
v. Relevant minister must allocate the equipment to a State institution.
Then, under the Public Procurement Act, 2003, the recipient State institution may declare the equipment ‘obsolete’ or ‘surplus’ and lawfully destroy it.
Any deviation from this—especially burning equipment on sight without any court processes—raises serious rule of law concerns.
I note the complaint that operators of excavators tend to abandon them and escape with the ‘motherboards,’ rendering the excavators unmoveable.
But that should not be a problem if all excavators have registration and chassis numbers.
The current technology by which the police are able to check the insurance status of vehicles by sending SMS to a short code, could be easily deployed to ascertain and then arrest and prosecute the excavators’ owners.
Further, under the Minerals and Mining (Mineral Operations – Tracking of Earth Moving and Mining Equipment) Regulations, 2020 (LI 2404), using such equipment without the statutorily mandated tracking device is a crime, and the equipment may be seized by the same process as under the MMA.
Recommendation: Amend or comply?
Admittedly, some of these procedures appear slow or bureaucratic in the face of Galamsey’s environmental degradation and widespread harm.
But our laws are designed to balance urgency with fairness, ensuring that punitive actions follow due process.
If we believe these legal safeguards are no longer fit for purpose, the appropriate response is not to ignore them, but to return to Parliament and amend the law.
Rule of law is not always popular—it demands that government power be exercised according to established rules, not arbitrary decisions.
It restrains even the most well-intentioned efforts to ensure that justice is not only done, but seen to be done.
So, if our national consensus is to ‘deport, deport, deport’ and ‘burn, baby, burn,’ then let’s have the courage to make those changes through lawful means.
Until then, the MMA and other existing laws remain in force—and respecting them is not optional.
It is the foundation of any just and democratic society.
The writer is Senior Partner,
Bentsi-Enchill, Letsa & Ankomah,
Accra.
