Human rights’ response to galamsey

The fight to eliminate galamsey has been long, difficult and protracted.

As far back as 1989, the Small-Scale Mining Act, whose main aim was to legalise artisanal mining and prevent illegal mining activities, was enacted.

The 2006 Minerals and Mining Act proceeded in that direction and reserved small-scale mining for Ghanaians only, as well as instituting alternative livelihood and community programmes for those dependent on galamsey.

However, the problems persisted and successive governments have attempted to tackle the galamsey menace with varying degrees of success.

The current government has tried different methods to eliminate the canker from the setting up of the Inter-Ministerial Committee on Illegal Mining to the formation of several military task forces — Operation Halt, Operation Vanguard, Operation Flush-out to Operation Galamstop — none of which seem to have been able to eliminate this seemingly intractable problem.

The catalyst for renewed agitation by the citizenry and some labour and professional organisations, as well as statutory bodies, including the Commission on Human Rights and Administrative Justice (CHRAJ), was the warning issued by the Ghana Water Company Limited (GWCL).

Public outcry has resulted in citizens taking to the streets to protest against the environmental degradation, which has been allowed to take place. Their actions are now being covered by international media (BBC World Service News, September 23, 2024) and represent a growing recognition of the worldwide problem of environmental damage, also known as ecocide.

Most of these bodies advocated the declaration of a state of emergency to drastically deal with the menace of galamsey. In response, the government has set up a five-member ad hoc committee to dialogue with all stakeholders to assess the effect of the fight to eliminate galamsey.

While that is going on, it is worthwhile to explore how human rights law can help in that venture.

Environmental law and rights have been the chosen vehicle in dealing with such phenomena. Human rights law and the environment are intrinsically intertwined; the enjoyment of a safe, clean healthy and sustainable environment is a sine qua non prerequisite for the enjoyment of all our human rights.

The human rights project will become useless and have no significance if there are no human beings alive to enjoy them.

Historically, given that the major human rights treaties and protocols did not provide for specific environmental rights, the various adjudicating bodies have used a purposive (teleological) interpretation of existing human rights to address environmental problems.

This is because one underlying condition for the respect of some human rights is an environment of sufficient quality to prevent deleterious effects on humans. 

In deploying the existing human rights in the various international treaties, the obvious question is: Which rights and to what extent can they be utilised as a tool for environmental protection?

Throughout the years, the progressive (teleological) interpretation applied to human rights provisions has allowed for the recognition of some environmental contents within several rights.

The strategy has been the deployment of existing rights such as the right to life, health, water, etc. and the usage of progressive interpretation to read environmental dimensions into them.

For example, the Indian Supreme Court has quite ingeniously carved out a right to a healthy environment by using the existing right to life and information. 

The African Commission has also used the right to health and the collective right to a generally satisfactory environment (Articles 16 and 24 respectively of the African Charter on Human and Peoples Rights) to find a right to a safe, healthy and sustainable environment in the case of SERAC vs Nigeria, where the Nigerian government was indicted for violating the rights of the Ogoni people by allowing SHELL to pollute the environment through their drilling activities on Ogoni land.

But by far, the greatest tool, by way of rights, is the emergence of a separate, stand-alone right to a safe, clean, healthy and sustainable environment by the United Nations.

On July 28, 2022, the United Nations General Assembly declared in a resolution that everyone on the planet has a right to a healthy environment. The component of the right will be discussed in the follow-up article.