ADR for ‘galamsey’: A curious proposition?

1.0 Introduction
If there is one criminal activity that has outsmarted Ghanaians, it is illegal gold mining. Christened as ‘galamsey’, this ass has turned all those who wield power in Ghana into an edentulous lot. Finding a solution to the problem has eluded the President of the Republic. Chiefs are wriggling their hands in despair. The Army and the Police seem clueless. Religious leaders have not found a solution, despite on-site prayers. Journalists have formed coalitions, done underground investigations at the peril of their lives, and yet almost all the major rivers we learned about in High School now look like rich chocolate drink. Talk about Rivers Offin, Pra, Birim, Ankobra, etc. Forest reserves are no longer forests to be reserved.

After years of ‘fighting’ the menace, we scored an ace a few months ago when we arrested one Chinese woman and her three or so inconsequential Chinese collaborators, believed to be the nerve-centre of ‘galamsey’. They are reportedly in custody and facing criminal trial but our riverbeds and forest reserves are still being overturned with sophisticated machinery even as at this moment. Every one alleges there are ‘big’ people behind the illegal mining activities. Yet, no one mentions names. And the pillage and wanton destruction go on while those who are in duty bound – politically, militarily and customarily - to lead the fight have joined the masses to sing dirges of frustration. Who, then, will lead the fight against this canker of an illegality?

It has recently been suggested that, a possible way of curbing the illegal mining menace is to adopt alternative dispute resolution methods (ADR) in dealing with cases arising out of such illegal activities.[1] This article gives an overview and explores the use of ADR in settling disputes. In particular, the article discusses the suggestion that has been made recently, proposing the use of ADR to handle ‘galamsey’ cases. The article posits that, illegal mining (galamsey) is a matter of national and public interest. It is also an issue that affects the environment. Illegal mining is a criminal enterprise and as such, any cases that arise out of it must be dealt with according to the strict sanctions regime under our criminal laws. It concludes that, ADR is not, and cannot be, a viable legal strategy that can be used to address the debilitating phenomenon of illegal mining.

2.0 Alternative Dispute Resolution (ADR): Brief background

2.1 What is ADR?
ADR is the short form of alternative dispute resolution. Generally, whenever there is a dispute or misunderstanding, the first thing that comes to mind is to go to court. Therefore, the majority of disputes are settled through the courts. The courts handle all manner of cases such as divorce, child custody, land cases, commercial and business cases, estates and trusts administration, criminal cases, and so on. However, the processes and procedures for handling cases in court can be daunting, even for the most sophisticated of persons. Litigation can be very expensive in terms of money and time spent to go through the life cycle of a case in court. Moreover, hardly do people come out of fighting their cases in court and remain friends. For most business owners, going through a court case with a business associate or partner negatively affects their business relationships.

In order to ensure that there are other means of resolving disputes and misunderstandings other than going to court, other forms of handling disputes have emerged. These modes of settling cases are believed to be less formal, less expensive, less time-consuming and less acrimonious, among many other advantages. It is these other modes of settling disputes (other than litigating in court) that are known as ‘alternative dispute resolution,’ or ADR for short.

2.2 What are the ADR methods used in settling disputes?

The popular ADR methods that are used in settling disputes are arbitration, mediation and customary arbitration. Arbitration is the most popular and commonly used of the ADR methods. It is widely used in settling international commercial disputes as well.[2] Arbitration is popular because the decision given by the arbitrator or umpire is final.[3] It is just like a decision given by a court. An arbitral award – whether made in Ghana or at international arbitration - can be enforced against a party in Ghana just like any judgment given by a court.[4]

Mediation is also now widely used as a means of resolving disputes. Mediation has been given a further boost since it was formally introduced into the High Court Rules recently.[5] As a result of introducing mediation into the court system, persons who have already filed their cases in court can opt for court-assisted mediation.

Customary arbitration as known and practiced under customary law in various communities in Ghana is also recognized as a valid and enforceable alternative method of dispute resolution. Customary arbitration is usually used in settling disputes before a head of family, a chief, etc. under our traditional customs and usages.

One major feature of ADR that makes it popular is that, the parties involved in a dispute get to choose the person they want to settle their dispute for them. The rules of procedure are not rigid and formal as we have in the rules that are used in the law courts. With arbitration, for instance, the parties can choose one arbitrator or a panel of three (3) arbitrators. If they choose a panel of three, each party will choose one arbitrator. Then both parties will select one other person to be the third arbitrator. The third arbitrator will act as the umpire or chairperson of the panel. This may sound easy but sometimes, getting the parties to agree on an umpire can be a challenge.[6]

2.3 History of ADR in Ghana
The use of arbitration as an alternative means of settling cases was recognized in pre-independence Gold Coast. It was regulated by a law that bore the ancient name of Arbitration Ordinance.[7] When Gold Coast gained its independence and was named Ghana, the new nation-state set out to pass its own laws to reflect the history, culture and aspirations of its people. Hence, an Arbitration Act was passed in 1961.[8] In view of the huge progress that has been made in the use of arbitration in settling disputes worldwide, Parliament passed a new law in 2010 to regulate the use of ADR in Ghana. Thus, the current law – Alternative Disputes Resolution Act – was born.[9] The law recognizes arbitration, mediation and customary arbitration as alternative means of resolving disputes.

3.0 What types of cases can be handled under ADR?
It is important to note that, unlike courts that deal with every type of case, ADR methods such as arbitration and mediation cannot be used to settle every type of dispute. They can be used to settle only some types of disputes or cases. The cases that can be settled by ADR usually arise in the following areas:[10] Energy, Construction, Labour disputes, Oil and gas, Mining services, Insurance services, Intellectual property rights, Maritime and shipping, Property and land disputes, Chieftaincy disputes and so on.

4.0 What cases cannot be resolved by ADR?
As noted earlier, the ADR Act of 2010 is the law that regulates the use of alternative dispute resolution methods to settle cases. Under section 1 of the ADR Act, there are specific cases that cannot be settled by ADR whether by arbitration, mediation or customary arbitration. The cases that cannot be settled by ADR are cases relating to:[11] (a) the national or public interest; (b) the environment; (c) the enforcement and interpretation of the Constitution; and (d) any other matter that by law cannot be settled by an alternative dispute resolution method. The matters ‘that cannot be settled by an alternative dispute resolution method’ include Family Law disputes (such as marriage, divorce, paternity, adoption etc.), Immigration Law disputes (for example, citizenship, right of residence, etc.) and Criminal offences (such as rape, defilement, murder and other offences under the Criminal Offences Act[12]).

5.0 Can illegal mining cases be handled under ADR?
In the light of the knowledge that disputes on issues that are of national or public interest, issues that affect the environment, as well as criminal offences, cannot be resolved by ADR, it is submitted that, the proposal for ADR to be used for resolving ‘galamsey’ cases does not hold valid. In the first place, illegal mining is arguably ‘public enemy number 1’ in Ghana now. It is a matter of utmost national and public interest. The cocoa industry is reportedly facing imminent collapse because of illegal mining. Ghana Water Company has warned we may soon have to import water as a country since all our major sources of water are being polluted by galamsey.

Citizens are being hounded out of their homes by illegal miners; judicial officers are not spared.[13] Illegal migrants are sneaking in to partake in the spoils from galamsey. Our youth prefer galamsey to education; galamsey proceeds are immediate and tangible. Not a day passes that the news media do not report on the negative impact galamsey is having on our country. It is submitted that, such a matter of national and public interest cannot be left to be ‘jaw-jawed’ at arbitration or mediation proceedings. The perpetrators must face the full rigours of the law of the Republic in the courtroom. It is for this reason that the ADR Act is not applicable to matters of national and public interest.

Secondly, it is common knowledge that illegal mining activities harm the environment. Our water bodies are polluted beyond belief. Our forest reserves have lost the very essence of their names. The ADR Act specifically excludes matters concerning the environment from its ambit. Even the suggestion that the provisions of the ADR Act could be amended to make environmental issues amenable to arbitration and mediation is problematic.

Thirdly, it is no derogation of words to say that illegal mining is criminal. And as stated in the earlier paragraphs, criminal offences cannot be sanctioned under ADR. Criminal offences such as illegal mining are handled by courts with criminal jurisdiction under the Criminal Offences Act and the Criminal Procedure Rules.[14] Those found guilty by the courts of law are punished according to the provisions of the law. Let us consider a typical scenario: a person who is illegally mining in someone’s cocoa farm is arrested by the farm owner. If ADR is available for dealing with such issues, the illegal miner chooses an arbitrator, and has the right to decide who will be the umpire too! Will there be any incentive for illegal mining to stop in such a situation? Your guess is as good as mine.

6.0 Conclusion
Sometime in August, 2018, I decided to spend some time with my younger brother, a medical doctor, at his work station at Agroyesum St Martin’s Hospital in the Amansie West District of the Ashanti Region. We drove together from Kumasi. It was a jolly good ride. Anwia- Nkwanta ‘bofrot’ and all. A few miles after we branched off the Kumasi-Obuasi Highway, I began to encounter the most devastated environment I had ever seen in my life. Abandoned illegal mining sites. In my trepidation and anguish, my brother tried to console me with the fact that the situation I was carrying on about was far better. He said the illegal miners had been driven away by the anti-galamsey taskforce so what I was seeing was far better. So, those people took away whatever they managed to extract from the belly of Mother Earth and left in their trail such monumental destruction. Wanton pillage and destruction. And they have just walked away free. Criminals on rampage with no one to stop them. Till date, that horrible sight is etched in my memory.

It is for this reason that I do not share the enthusiasm of those who propose that illegal mining cases should be handled through ADR. Illegal mining is a crime. Crimes are handled under the criminal laws of Ghana, not ADR. Illegal mining is a matter of national and public interest. National and public interest cases are settled in court, not through ADR. Illegal mining adversely affects the environment. Environmental issues are resolved in court, not through ADR. We have enough heads under which to handle illegal mining cases in the courts. Much as I am a staunch proponent and practitioner of ADR, ADR is simply not an option for addressing the beast called galamsey.

Footnotes
[1] The suggestion that ADR can be used to resolve illegal mining cases was reportedly made by a Supreme Court nominee who appeared before the Appointments Committee of Parliament recently. Source: https://gna.org.gh/2022/10/justice-ackah-yensu-calls-for-adr-in-addressing-galamsey-menace/

[2] The use of arbitration in resolving disputes is so important that, there is a UN Convention on it, known as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958 (New York Convention). Ghana acceded to the New York Convention on 8^th April, 1968 and it took effect on 8^th July, 1968. In Ghana, the Convention is applicable for the recognition and enforcement of awards made in the territory of another contracting State. Due to its importance, the Convention has been incorporated into Ghanaian law in Schedule 1 of the Alternative Dispute Resolution Act, 2010 (Act 798). The ADR Act contains most of the provisions of the UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006. Ghana is also a signatory to International Convention on Settlement of Investment Disputes between States and Nationals of Other States (ICSID), having ratified the ICSID Convention on 13^th July, 1966. It came into force on 14^th October, 1966

[3] See: Order 64 rule 8 of the High Court (Civil Procedure) Rules, 2004 (C.I 47). Section 52 of the ADR Act also provides that, subject to the right of a party to set aside an award under section 58 of the Act, an arbitration award is final and binding as between the parties and any person claiming through or under them.

[4] Sections 57 (1) (on arbitral awards given in Ghana) and section 59 (1) (on foreign arbitral awards) of the ADR Act. For an example of a foreign arbitration award enforced in Ghana, see: Get Technologies Ltd v Bankswitch Ghana Ltd Suit No. GJ/1041/2017, ruling dated 28th July, 2017, HC (unreported)

[5] High Court (Civil Procedure) (Amendment) Rules, 2020 (C.I 133)

[6] See: Westchester Resources Ltd v Ashanti Goldfields Co. & Africore Ghana Ltd v Ashanti Goldfield Co. Consolidated Civil Appeal No. J4/63/2013 judgment dated 11^th November, 2015, SC (unreported) where the parties were able to choose their respective arbitrators but they could not agree on the person to choose as the umpire.

[7] Cap. 16 (1951 Rev.). That law was based primarily on the provisions of the English Arbitration Act, 1889, which was later re-enacted as the English Arbitration Act, 1950. See also: Arbitration (Foreign Awards) Ordinance (Cap. 17)

[8] Act 38
[9] Alternative Disputes Resolution Act, 2010 (Act 798). Order 64 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) sets out the procedure rules for arbitration

[10] See: Melisa Amarteifio and Isaac Aburam Lartey, “Arbitration Procedures and Practice in Ghana: Overview,” available at https://uk.practicallaw.thomsonreuters.com/66107025?transitionType=Default&contextData=(sc.Default)&firstPage=true

[11] Section 1 of the ADR Act
[12]1960 (Act 29) (as amended)
[13] https://dennislawnews.com/article/galamsey-activities-in-nkroful-area-forces-district-court-magistrate-to-vacate-official-bungalow

[14] See: Acts 29 and 30 of 1960 (as amended)