Introduction
In the wake of the galamsey menace, there have been many suggestions to be adopted to help in its fight. Some people have suggested what they termed “shoot to kill”.
That is, security officers who have been deployed to combat the menace should shoot and kill people engaging in galamsey.
However, I do not think this should be encouraged in any way. First, the ambit of Article 13(2) of the 1992 Constitution and section 37 of the Criminal Offences Act, 1960 (Act 29) where use of force can be justified in certain cases in my view do not cover the fight against galamsey.
And even in those instances, the use of force must be necessary, reasonable and proportional. That is, where the person using such force has no other means to stop the commission of the crime.
However, there are other means which we can adopt as a country to fight the galamsey menace.
Article 13 of the Constitution provides as follows:
“(1) No person shall be deprived of his life intentionally except in the exercise of the execution of a sentence of a court in respect of a criminal offence under the laws of Ghana of which he has been convicted.
(2) A person shall not be held to have deprived another person of his life in contravention of clause (1) of this article if that other person dies as the result of a lawful act of war or if that other person dies as the result of the use of force to such an extent as is reasonably justifiable in the particular circumstances-
(a) for the defence of any person from violence or for the defence of property; or
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
(c) for the purposes of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission of a crime by that person.”
Section 37 of Act 29 also provides:
37. Use of force for prevention of, or defence against, criminal offence
“For the prevention of, or for personal defence, or the defence of any other person against a criminal offence, or for the suppression or dispersion of a riotous or an unlawful assembly, a person may justify the use of force or harm which is reasonably necessary extending in case of extreme necessity even to killing”.
Again, the shoot to kill suggestion can lead to innocent people being killed. Some people can also use it to settle personal scores with other people they perceive to be their enemies by shooting them or as revenge. Afterall, as the saying goes, “dead man does not talk. And no witness no case”
Furthermore, the Criminal Offences (Amendment) (No. 2) Act, 2023 (Act 1101) under section 1 has even abolished death sentence with respect to a person who has been convicted for Murder by amending section 46 of Act 29.
The old section 46 of Act 29 had provided as follows:
46: Murder
“A person who commits murder is liable to suffer death”.
Section 1 of Act 1101 now provides:
“A person who commits murder is liable on conviction to life imprisonment”.
I also do not think burning of excavators can solve the problem. Those excavators cannot burn easily. And the owners may only have to change the burnt parts and use them again. The excavators can be confiscated and forfeited to the State.
Wherever galamsey activity is going on cannot be concealed. It can easily be identified. The place will speak for itself and will not need any explanation.
Jeremiah 2:7 provides: “I brought you into a fertile land to eat its fruit and rich produce. But you came and destroyed (defiled) my land and made my inheritance detestable”
Suggestions
I suggest that if the following steps are taken, they would help in its fight and the country may not have to spend huge sums of money in fighting it. The Soldiers cannot be on the field for months or years because, that would cost the country so much money.
1. All District/Municipal/Metropolitan Chief Executives should be given between four to six months to stop galamsey activities in their respective districts, municipal or metropolitan areas if any.
Any of the affected District/Municipal or Metropolitan Chief Executives who fail to stop galamsey within the time frame should be dismissed, and the reason for his/her dismissal should be given, to serve as a deterrent to others and anyone who would be appointed as replacement.
2. Police Commanders in the affected Regions, Districts/Municipalities /Metropolitan areas where Galamsey activities take place should give the District/Municipal/Metropolitan Chief Executives the needed assistance to curb the menace within the given period under point 1 (supra).
Any officer who flouts this directive should be interdicted pending investigations or transferred.
3. The head of Environmental Protection Agency (EPA) in every District/Municipal/Metropolitan Assembly where galamsey activities are taking place should assist the various District /Municipal/Metropolitan Chief Executives in curbing the menace within the given period as stated in point 1 above. Any affected EPA official who flouts this directive should be interdicted pending investigations or transferred.
4. It is not possible, that Regional Ministers, MMDCES, Chiefs, individuals, families, clans, companies etc. in whose jurisdictions or on whose lands Galamsey activities are taking place are not aware of such destructive activities.
Therefore, any of the above-mentioned persons or entities who fail to help in fighting Galamsey can be said to have abetted it and should be charged for the offence of abetment of a crime or failing to prevent felony under the Criminal Offences Act, 1960 (Act 29) together with the relevant Mining Act or Regulation.
The parameters of these two inchoate offences are very wide.
Section 20 of Act 29 provides as follows:
20. Abetment of a criminal offence
(1)” Every person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime, and of abetting the other person in respect of that crime.
(2) Every person who abets a crime shall, if the crime is actually committed in pursuance or during the continuance of the abetment, be deemed guilty of that crime.
(3) Every person who abets a crime shall, if the crime is not actually committed, be punishable as follows, that is to say—
(a) where the crime abetted was punishable by death the abettor shall be liable to imprisonment for life; and
(b) in any other case the abettor shall be punishable in the same manner as if the crime had been actually committed in pursuance of the abetment.
(4) An abettor may be tried before, with, or after a person abetted, and although the person abetted is dead or is otherwise not amenable to justice.
(5) An abettor may be tried before, with, or after any other abettor, whether he and such other abettor abetted each other in respect of the crime or not, and whether they abetted the same or different parts of the crime.
(6) An abettor shall have the benefit of any matter of exemption, justification, or extenuation to which he is entitled under this Code, notwithstanding that the person abetted, or any other abettor is not entitled to the like benefit.
(7) Every person who, within the jurisdiction of the Courts, abets the doing beyond the jurisdiction of an act which, if done within the jurisdiction, would be a crime, shall be punishable as if he had abetted that crime”.
Section 22 of Act 29 also provides as follows:
Section 22—Duty to Prevent Felony. “Every person who, knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to prevent the commission or completing thereof, is guilty of a misdemeanour.”
It is important to state, that an abettor can be charged even if the person he abetted has not been charged, or is dead, or has not been arrested or is not within the country. All that the prosecution must prove is that the one abetted either committed the offence or attempted to commit the offence.
The offence of duty to prevent felony is like a civic duty imposed on citizens to help in the prevention of criminal offences.
5. Any public officer who fails to do due diligence before approving or issuing any mining permit should be dismissed or interdicted and also charged for abetment of a crime.
6. The real owners of these galamsey sites should be arrested and prosecuted. Their identities can be verified from their documents at the Minerals and Mining Commission and or at the Office of the Registrar of Companies.
Some of them may not be in physical possession of these sites. However, constructive possession is as good as physical possession in legal terms.
Those who obtained the grant of their sites directly from Stools/Skins, Families, Clans or individuals etc. without any proper documentation can be traced through investigations and arrested and charged as well.
7. All Regional Ministers in the various regions where galamsey activities are carried out are to assist, the various District/Municipal/Metropolitan Chief Executives who are affected by galamsey activities to curb same.
If any Regional Minister in any of these galamsey areas fail to assist the affected MMDCE to stop it within six months, he/she should be dismissed and prosecuted as well for abetment of offence or failing to prevent felony in respect of the galamsey activities.
8. Chiefs/Clan heads, family heads/individuals/companies etc are to be warned seriously not to give out their lands for galamsey activities. If the advice is not taken, such a Chief, head of family or the individual involved should be charged for abetment of crime in relation to the galamsey activities as I have above.
This is because; there is no ownerless land in Ghana. A land in may be owned by Stool, Skin, Clan, family, individual, company, the State etc.
Land as defined under section 281 of the Land Act, 2020 (Act 1036) includes “the solid surface of the earth, trees, plant, crops, and other vegetation, a part of the earth surface covered by water, any house, building or structure whatsoever, and any interest or right in, to or over immovable property”.
9. There can never be any galamsey activity on a particular land without the Knowledge, consent and, or the concurrence of the owner of the land. Therefore, any Landowner who gives out portion of his/her land for galamsey activity should be charged for abetment of crime.
10. A special unit of the Attorney-General Department should be created in all the regions where galamsey activities take place. This special office should be headed by a State Attorney not below the rank of a Principal State Attorney.
The office is to prosecute all cases on galamsey activities expeditiously. The prosecutions of such cases are to commence within 7 days after the arrest of the suspect. Such trials should proceed from day to day until its conclusion.
11. All applications for confiscation or forfeiture of any equipment seized at Galamsey site are to be made by State Attorneys in charge of the special unit to the appropriate court with jurisdiction within 14 days after the seizure of the equipment but with notice to the legal owner of the equipment.
12. Special accounts should be opened at National Investment Bank Ltd., Agricultural Development Bank and GCB Bank Plc. in which proceeds of all sales of equipment seized at Galamsey sites and all fines imposed on convicted persons if any should be paid.
13. Copies of receipts of payment in respect of the confiscated equipment or fines should be given to the State Attorneys who head the special units in the respective Regions. The Registrar of the court which gave the order and the Auctioneer who conducted the auction in cases of forfeiture of equipment should also be given copies for reconciliation purposes.
14. Part of the proceeds from the confiscated and auctioned excavators and other equipment used for Galamsey could be used for reclamation of the affected areas.
15. Hearing of cases on Galamsey activities should be telecast live on GTV, GBC Radio, any private television or radio station which wants to broadcast it, as well as any social media platform which wants to broadcast the proceedings. This in itself would serve as deterrent to others.
Conclusion
I hope that if the above steps are taken, the Galamsey menace would be reduced drastically, if not solved completely without much cost to the country.
NB: My opinion on expeditious trial of cases can be considered together with the above views to achieve the best results.
References
1.1992 Constitution
2. Criminal Offences Act, 1960 (Act 29)
3. Criminal Offences (Amendment) (No. 2) Act, 2023 (Act 1101)
4. New International Version (NIV) Bible
5. Land Act, 2020 (Act 1036)
