Harmonising and strengthening mining-related legislation – The case of the two forests statutes
Last week, I argued for amending our mining legislation to explicitly permit (i) the deportation of foreigners suspected of engaging in Galamsey; and (ii) the destruction of mining equipment used in such operations. This week, I focus on two forest-related statutes that touch on the second issue but would also require targeted amendments to enable decisive legal action, even in forest reserves.
The first is the Forests Act (FA), formerly the ‘Forests Ordinance,’ originating from 1927, and which criminalises unauthorised activities in forest reserves. These include the unlawful ‘taking of forest produce,’ broadly defined to cover collecting, conveying or removing forest products, or subjecting them to manufacturing processes. The FA empowers Forest Officers and District Chief Executives to seize both the produce and any instruments suspected of being used to commit the offence.
The second statute is the Forest Protection Act (FPA), which similarly prohibits unauthorised dealings with forest produce and allows Forest Officers to ‘take all necessary steps to prevent’ such offences. It further provides that, upon conviction, any equipment or items used may be forfeited to the state. If ownership is indeterminate, forfeiture occurs automatically after 14 days. The Minister may then sell the forfeited property, using the proceeds for forest rehabilitation. If no prosecution is brought, the property must be returned to its owner.
At first glance, these provisions seem applicable to illegal mining in forest reserves. Some interpret them as permitting the outright burning of mining equipment found in these areas, under the rubric ‘take all necessary steps to prevent’ forestry offences. However, a closer reading of the Acts—individually and together—undermines that view. Both statutes define ‘forest produce’ to specifically exclude minerals governed by mining-specific legislation. That is, while they mention minerals, they also state: ‘other than minerals within the meaning of an Act regulating the working of minerals.’
This phrasing is crucial. It explicitly defers to the Minerals and Mining Act (MMA), which governs all naturally occurring substances formed by geological processes, wherever they may be found in the realm. By excluding such minerals, the FA and FPA do not (and cannot) regulate illegal mining equipment or activities covered by the MMA. Relying on these forestry laws to justify the destruction of mining equipment would thus be legally unsound. Even if, for argument’s sake, the FA and FPA could justify such destruction (which they cannot), Galamsey activities are not confined to forest reserves. It happens across the country, so any legal provision addressing the destruction of mining equipment must be included in the MMA itself.
If our national policy is to destroy equipment used in illegal mining, without a court order, we should not rely on contested interpretations or endure prolonged litigation. We need to amend our laws to reflect our chosen course of action.
A legislative amendment could state that where equipment suspected of being used for illegal mining is found and the owners or operators cannot be identified, or where the equipment is impractical to remove (for instance when it is deliberately rendered unmoveable), the state may destroy it on-site or dispose of it as scrap metal. The law could then outline appropriate methods for handling any post-destruction remnants, ensuring due process is preserved within a practical and enforceable framework.
This would be the lawful and responsible path. It aligns policy with legal authority, respects the rule of law, and avoids arbitrary or extra-legal actions. Parliament has both the authority and arguably the duty to amend the MMA to clarify this matter, particularly given the environmental devastation and threat to livelihoods posed by illegal mining.
Such an amendment would also harmonise the FA, FPA and MMA, ensuring that each statute functions within its proper domain without contradiction or overlap. This kind of legislative clarity is critical if we are to fight Galamsey effectively and legally.
But if the Executive is reluctant to propose such a bill, or if Parliament hesitates to pass it, we must ask: Why? Is there concern about potential international backlash if our statutes explicitly provide for the destruction of mining equipment? Are there vested interests benefiting from the current ambiguity? These are uncomfortable but necessary questions.
Ultimately, if ‘burn, baby, burn’ is to be our policy response to Galamsey, then we must ground it firmly in law. We cannot afford to let illegality be met with illegality, even in the name of fighting a national emergency. Our laws must mirror our commitment (in both policy and practice) to protecting our environment and future generations.
The writer, Ace Anan Ankomah is a Senior Partner at Bentsi-Enchill, Letsa & Ankomah
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