Introduction
“Nea ye boe” is an Nzema phrase which translates loosely to mean “watch intently” or “be vigilant”. This phrase is from a popular song by Safohene Djeni. Why the choice of “Nea ye boe” as part of the title for this article? First, “Nea ye boe” because there is a saying that “if you want to appeal someone, speak in the language they understand”.
The Minister of Lands and Natural Resources, Hon. Emmanuel Armah Kofi Buah, is from Nzemaland and will appreciate the deep meaning attached to the phrase. Second, Hon Buah was interviewed sometime back on the KSM show where he sang eloquently the song Nea ye boe” and proffered an explanation to the lyrics. So the theme of the song “Nea ye boe” is not lost on him.
Third, my in-laws who hail from Princess Town and Esiama will be proud that after years of giving me their daughter to marry at least now I can identify Nzema phrases and say “mede” – to wit, I understand.
The issue of mining in forest reserves has resurfaced in the last couple of weeks following a decision by the Ministry of Environment Science and Technology to lay in Parliament an instrument to amend the Environmental Protection (Mining in Forest Reserves) Regulations, 2023 (L. I. 2462) as one of the steps at stopping illegal mining in forest reserves and waterbodies.
The said amendment seeks to remove the so-called Presidential powers to grant mining rights in Globally Significant Biodiversity Areas (GSBAs). One of reasons assigned for the choice of amendment over revocation is that “If the L.I is revoked, the EPA will not be able to perform its functions of entering the forest reserves because they will need a forest entry permit from the Forestry Commission”.2 It has also been opined that “if the L.I is revoked, the operations of some big mining companies who have invested billions of cedis will be impacted”.
This move is viewed by many including organized labour, the Coalition Against Illegal mining and CSO working in the sector as misstep. It is seen as a misstep because the call from these stakeholders and including commitments made during the elections has always been for the revocation of L.I 2462. “Nea ye boe medeama”! – Be vigilant my brother.
In this article, I seek to offer counter arguments in support of the revocation of L.I 2464. In an earlier article I wrote titled “REVOCATION OF L.I ON MINING IN FOREST RESERVES: WHAT IS THE ROLE OF PARLIAMENT?”4 in response to an interview by the then Minister of Lands Natural Resources Hon. Samuel Jinapour where he stated that “…Those matters in (sic) the revocation of the L.I are within the bosom of Parliament, but the government will discharge its commitment by triggering the process of revocation, and thereafter it will be within the remit of Parliament to deal with it.”5 In that article, I examined the role of Parliament if any in the revocation
processes of an L.I. I argued that Parliament has a very limited role in the revocation process.
Which role is just a matter of courtesy extended to the house by the Minister responsible for Lands and Natural Resource; and that:
“A simple procedure of notifying Parliament through a statement on the floor of the house should be enough to revoke the L.I. Any fanciful procedural niceties of laying a Revocation L.I will lead to absurdities. The statement notifying Parliament of the revocation must also contain information on the consequential and interim measures. In the case of L.I 2462, the effect of any conditions in licenses that have been issued pursuant to the L.I.”
This view was seen by some as alien to our constitutional architecture on law making and argued that a revocation L.I must be laid in Parliament and in 21 days if not annulled by two-thirds votes then the L.I stands revoked. It is worth noting that the so-called revocation L.I was never laid in Parliament. Thus the “burden” to revoke the L.I 2462 was transitioned unto the current government to discharge – a charge it had committed to discharge.
Why Revoke and Not Amend?
1. L.I breaches Constitution on Natural Resources Governance
The 1992 Constitution of Ghana places the regulatory responsibility of natural resources, as well as coordination related policies specific to the Natural Resource Commissions established either by the Constitution or by the Parliament of Ghana. The Environmental Protection Agency is not a designated natural resources commission. The L.I. 2462 effectively grants the EPA the authority to supervise and control the utilization of mineral resources within forest reserves. This is encroachment on the mandate of the Minerals and Forestry Commissions and exceeds the scope of the EPA’s designated functions in its establishment legislation. It would have been well within the mandate of the EPA if the L.I set environmental standards or expanded the Environmental Impact Assessment standards required for mining in forest reserves. An amendment of the L.I will continue the breach of the Constitution.
2. L.I 2462 lacks sound legislative basis
Flowing from EPA’s lack of capacity to regulate the utilization of natural resources, the legislative basis for passing the L.I is also questionable. The L.I on mining in forest reserves is said to have been passed by the Minister of Environment Science and Technology pursuant to a so-called power granted under section 62 (1) of the repealed Environmental Protection Agency Act, 1994 (Act 490). It is worth stating that section 62 (1) of the Environmental Protection Agency Act, 1994 (Act 490) that empowers the Minister responsible for the Environment to make regulations generally for, among other things to give effect to the Environmental Protection Agency Act, 1994 (Act 490).
A Legislative Instrument must have its basis in legislation, meaning that the Constitution or a statute must explicitly grant the power to make regulations. L.I. 2462 lacks this clear authorisation, making any attempt by an administrative officer or body to create regulations appear as an unconstitutional assumption of the legislature’s role, contravening the principle of the separation of powers. Act 490 restricts the scope of the powers of the Minister of Environment to make regulations on environmental standards and waste disposal. Even under the broadest interpretation of Section 62(1) of Act 490, justifying the enactment of L.I. 2462 under this provision is extremely challenging. The mismatch between the purpose and provisions of L.I. 2462 and the functions assigned to the Environmental Protection Authority by Act 490 makes it almost impossible to interpret Section 62(1) to legitimize L.I. 2462.
Further, the new Environmental Protection Authority Act, 2024 (Act 1124) enacted on January 6, 2025, to replace the Environmental Protection Agency Act, 1994 (Act 490), retained the powers of the EPA to regulate matters of environmental protection including climate change.
Opting for an amendment will not cure this legislative aberration.
3. L.I introduce a dysfunctional governance structure
A feature of L.I 2462 is the establishment of a Mining in Forest Reserve Committee to ensure the effective and efficient management of mining exploration and exploitation. It is composed of – a Liaison Group that facilitates effective exploration and mining, – a Steering Committee that oversees and approves their budget, ensuring the implementation of exploration and mining policies within forest reserve, and – a Local Liaison Group8 in charge of mining activities in each forest reserve. The question is, has this multi-tiered governance structure helped in any way to protect our forest reserves from the illegal activities we see? Res ipsa loquitur.
4. L.I provides no new environmental standards
The so-called environmental standards in L.I 2462 are standards that the EPA is able to enforce with its Environmental Impact Assessment (EIA) Regulation. The requirement that mining activities should not cause unwarranted destruction is a standard the EPA can enforce and demand mineral rights holders working anywhere in Ghana to address in their EIAs. Similarly, the requirement in L.I 2462 that activities such as excavation and drilling should be confined to safe areas with adequate safeguards and situating ancillary mining facilities outside the boundaries of the forest reserve can also be contained in the EIA permit. The EPA does not need L.I 2462 to perform these functions. In fact, the EPA has been performing the function of prescribing environmental standards for various undertakings including mining years before the passage of L.I 2462 in 2022. Thus, the environmental standards in Regulations 6 – 18 of L.I 2462 can be implemented within the EIA framework.
5. Other issues with L.I
Beyond its legal shortcomings, L.I. 2462 has other challenges. Firstly, the sanctions regime for the breach of L.I. 2462 of a maximum penalty of one-year imprisonment and a fine of 250 penalty units is weak when compared to similar regulations like the Timber Resource
Management and Legality Licensing Regulations, 2017, which prescribe more stringent penalties. The weak sanctions regime in L.I. 2462 is attributed to constraints imposed by the EPA Act on the Minister’s authority to enact sanctions through regulations. Given the gravity of issues like biodiversity loss and irreversible environmental destruction, a robust sanctions framework is imperative. The inherent inability of L.I. 2462 to ensure effective compliance with its prohibitions underscores the inadequacy of a legislative instrument in regulating mining activities within forest reserves. A more comprehensive and robust approach is essential to protect these critical ecosystems. Secondly, the process through which L.I. 2462 was created is concerning. While not legally mandated, there is a growing practice in Ghana, especially in natural resource management, for traditional authority, civil society organizations and community-based stakeholders to be involved in developing legislation. Conflicting accounts exist regarding whether these groups were consulted during the formulation of L.I. 2462. The absence of consultation with key stakeholders is a compelling political argument for a revocation of the L.I.
Thirdly, unlike recent legislation, L.I. 2462 lacks gender quotas despite creating three new institutions. This departure from the norm raises concerns and offers a compelling political opportunity to advocate for a thorough review of L.I. 2462.
6. Arguments for amendment unconvincing
As shown from the above points, the arguments for choosing an amendment of L.I 2462 over the revocation of same cannot be tenable. First the argument that it will prevent the EPA from doing its work in forest reserves is inaccurate. The EPA as was set up under Act 490 previously and in its current creation as an Authority under Act 1124, is empowered as sole national entity for setting, monitoring and implementing environmental standards. It can perform this function without requiring “entry permit” from the Forestry Commission. Second, the point that the revocation of the L.I will affect some large mining companies working in forest reserves is also inaccurate. These large mining companies that have invested heavily have stabilization clauses in their mining leases. These clauses protected them against any change in law after the acquisition of mineral rights. The reports on mining forest reserves do not show that it is being
done by these large companies. In any event, these large companies have been mining in our forest reserves before the passage of L.I 2462.
Conclusion
The economic contribution of mining cannot be overlooked. There are clear signs of good intended actions to deal with the issue of illegal mining and its attendant environmental and health consequences. While these actions are laudable and commended, we may not achieve the needed results if the underlying legislative framework lacks a sound policy and legislative backing. Tinkering with L.I 2462 will be in my considered view an act in futility. A revocation of L.I 2462 coupled with a ban on mining in forest reserves will provide the country with an opportunity to rethink and develop a comprehensive policy and legislative framework for mining in forest reserves. A policy that will strike the right balance between economic development and ecological sustainability for our present needs and intergenerational equity.
“Nea ye boe” Honorable Ministers of Land and Natural Resources and Environment, Science and Technology! Revocation L.I 2462 was the commitment. Anything short of a revocation will send the wrong signals in the fight against illegal mining – a fight we must win at all cost to save our nation from the cartelism of illegal mining.
“Nea ye boe Medeama”!!!
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