Chairman Wontumi’ case with section 14(1) of Act 703 is legally and constitutionally an Administrative Offence

It must be made clear that Chairman Wontumi was not involved in illegal mining because the affected designated area by Minerals and Mining law and the Court judgment was/ his mining rights area.

So, the Ghana Chamber of Mines, Investors in the Mining Sector and in other businesses must note that the strict enforcement of Section 14(1) of Minerals and Mining Act 2006 (Act 703) and Act 99 of Act 703 or the linking of the two sections against Chairman Wontumi to send him to prison, is a very heavy legal and judicial precedent for Corporate and Personal Liability. Hence they must stand up against such a dangerous precedent hence, his case should be seen as serious one. So they must also see to fetch water to help quench the fire or inferno.

They must note that the key legal implications include (a). Operational risk, since a standard administrative missteps or unapproved actions like what happened to Chairman Wontumi, risk being treated as criminal offences (b). Personal accountability; It should be noted that the Chairman Wontumi’s case implies that owners of concessions can no longer hide behind corporate entity shields, that is if unlawful mining occurs under their watch.

The situation has therefore created precedent accountability with the strict or wrong interpretation of Directors liability, thus making official Corporate Directors to face higher legal and enforcement scrutiny from the State. As such, concession holders or mining companies must tighten oversight over partners, subcontractors, joint venture and encroachers of the Concession.

Every good lawyer especially with experiences in the Mining Industry and or a mining security risk expert or any person with a critical thinking mindset after reading Minerals and Mining Act 2006 (Act 703) especially Section 5, Section 87, Section 88, then from Section 106 to section 108 as well as the Minerals and Mining licensing Regulations 2012 (LI2176) should come to a very strong logical conclusion that by mining operational risk standards, a breach of section 14(1) of Act 703 is only an administrative offence, within the jurisdiction of the Sector Minister.

So by Minerals and Mining Act 2006 (Act 703) and Article 19 (11) of the 1992 Constitution, the corresponding offences and penalties for a breach of section 14(1) of Minerals and Mining Act 2006 (Act 703) are from Section 106 to section 108 or Section 5, Section 87, Section 88 within the jurisdiction of the Sector Minister, hence, not a criminal offence within the jurisdiction of a High Court.

Mining operational risk standards entail that an administrative offence must be dealt with by the Sector Minister and this require the Sector Minister, depending on the situation to give an initial warning for rectification of a regulatory infraction within 120 days as part of minimum force. Otherwise the revocation of mining rights or imposing of fines as happened with the Bogoso Appiate Explosion incident or disaster on 22 January 2022 involving a Service Provider in the mining sector. Civil cases may be taken against any affected employee especially the Directors of the Company and nothing more.

Strict administrative breaches of section 14(1) does not automatically equate to a criminal assignment with Large Scale Mining Concession transfer rule so as to attract heavy small scale mining criminal penalties. The Chairman Wontumi case has therefore created a serious legal and constitutional mismatch or question, thus a potential miscarriage of justices.

Section 14(1) of Minerals and Mining Act 2006 (Act 703) is a standard operational risk, meant

to attract administrative sanctions as provided from sections 106 to 108 of Minerals and Mining Act 2006 (Act 703) and not a lengthy imprisonment.

The Mining laws of Ghana are embedded (rooted) in the Minerals and Mining Act 2006 (Act 703). Act 703 is structured into two main sectors namely the Large Scale Mining Sector and Small Scale Mining Sector, with the associated Mining rights as Mining Lease ( exploitation Rights) , and Small Scale Mining License which is exclusively for Ghanaians respectively.

Large-scale mining in Ghana is opened to global persons or companies, but only after they meet strict legal, financial, and local incorporation rules. Unlike small-scale mining, which is strictly reserved for Ghanaian citizens, large-scale mining allows foreign participation. However, applicants face mandatory local content rules, capitalization minimums, and strict operational guidelines managed through Minerals Commission of Ghana.

The Large Scale Mining Sector is governed by Section 1 to Section 80 of Act 703 with corresponding offences and penalties at Sections 106 to 108 of Act 703, strictly administrative offences. Hence exclusively as ministerial jurisdiction.

Small Scale Mining Sector is governed with Sections 81 to 98 of Act 703. The Small Scale Mining Sector has offences and penalties at Section 99 of Act 703 mainly meant for illegal Small Scale Mining activities or illegal gold transactions by persons with no mining rights for an affected area or no license for gold transaction matters respectively. Hence, it illegal Small Scale Mining activities entails criminal undertone, if and only if, it is illegal small scale mining by person with no mining right or license for the designated area like Galamasey operators or encroachers thus exclusively the Jurisdiction of a High Court.

A breach of any provision of Act 703 by a holder of a mining right whether mining lease or (exploitation rights) or Small Scale Mining license, unless stated in the specific provision, does not constitute illegal mining but it is a breach of the affected provision.

Hence, a breach of Act 703 by a mining right holder, unless specified by the provision is an administrative offence as provided under Administration and miscellaneous provisions, covering from Section 100 to section 112 of Act 703 with corresponding penalties at Sections 106 to 108 of Act 703. Otherwise, penalty is at section 5 of Act 703 on revocation of mining rights, as well as at section 87 of Act 703 on revocation of small scale mining small license by the Minister.

Note the wrongful act by the Sector Minister with the alleged regulatory infraction by Adamues Gold Resources, Nzima, when the sector Minister used his ministerial powers to take over the running of this Company when it was accused of breaching a provision of Act 703, wrongly reported by the media as illegal mining by the Company in her own concession. Google for the Sector Minister accused Adamues Gold Resources, Nzima for breaches of Act 703.

It should rather read a breach of the said provision of Act 703 by the Company and not illegal mining by Adamues Gold Resources (Nzima Mine Gold Resources). By law especially the Minerals and Mining licensing Regulations 2012 (LI2176), the Sector Minister is required to write to a an offending Company in the Register list and ask for remedial actions within 120 days, otherwise a fine of 5,000 US Dollars to be paid in Cedis.

It should be noted that Section 14(1) of Act 703, falls within Section 1 to 80 of Act 703, which are the sections which govern Large Scale Mining Sector and this section 14 (1) of Act 703 decreed that, ‘A mineral right shall not in whole or in part be transferred, assigned, mortgaged or otherwise encumbered or dealt in, in a manner without the prior approval in writing of the Minister’.

But, a breach of this provision of Section 14(1) of Act 703 by a Mining Lease holder that is a Large Scale Mining Company, entails an administrative offence and not a criminal offence. Since Sections 1 to 80 of Act 703 have their corresponding offences and penalties defined under Administration and Miscellaneous provisions which covers from Section 100 to section 112 of Act 703. These are to be dealt with in the office of the sector Minister and not for adjudication in a law Court room.

Likewise, a breach of Section 88 of Act 703 which falls under Small Scale Mining which decreed that ‘A license granted under section 82 (1) of Act 703 may be transferred only to a citizen and with the consent of the Minister’ entails an administrative punishment as at Section 87 by the Minister only. This must be so, if and only if the operator is a licensed small scale mining holder.

This is so, since, Section 5 of Act 703 grants power to the Minister to revoke mining rights whether Small Scale Mining license or Mining lease of a Large Scale Mining operator and Section 87 of Act 703, also gives the power to the Minister to revoke small scale mining right or license due to a breach of a provision of the terms and condition of the license so granted.

Note, Section 87 of Act 703 deals on Revocation of Small Scale Mining license, and states that, the Sector Minister has the power to revoke a small scale mining license, duly granted under section 82 (1) where, (a) the Minister is satisfied that the licensee has contravened or failed to comply with a term or condition of the license or a requirement applicable to the licensee, (b) the licensee is convicted of any offence relating to the smuggling or illegal sale or dealing in minerals etc.

Otherwise the Minister may opt to use section 106 to 108 to deal with the breach of an Act 703. A breach of section 88 of Act 703, by a licensed small scale mining holder should only elicit execution of Section 87 of Act 703 on Revocation of Small Scale Mining license.

A breach of Section 14(1) and or section 88 of Act 703 on transfer are mainly administrative offences and the matter is exclusively the jurisdiction of the Sector Minister to act accordingly, as provided at Section 87 of Act 703/Section 100 to section 112 of Act 703. Otherwise by the relevant Section of 251 of Minerals and Mining Licensing Regulations 2012 (LI2176).

The legal matter of the ownership pf the Black Volta Projects between Azumah Resources and Engineers and Planners of Dr Ibrahim Mahama, tells that matter is within domain of Section 14 (1) of Act 703 since the original owner is Azumah Resources so the Sector Minister erred by not acting as accordingly to resolve the mater amicably. I rest my case, since the matter is under Arbitration at an International Tribunal (Court).

The use of Section 99 of Act 703 is only applicable when the suspect does not hold a mining right especially small scale mining license for the affected area. Hence, it affects illegal small scale mining and not a breach of a provision of Act 703. A breach of a provision of Act 703 of a mining right holder is not by a criminal punishment but administrative offence hence an administrative punishment only within ministerial jurisdiction.

Based on the above augment, it should be very clear that if Chairman Wontumi whether a mining lease (legal large scale miner) or small scale mining license holder, truly breached a provision of Act 703, on transfer or assignment, he did not commit a criminal offence, but an administrative offence. And the matter it is exclusively the jurisdiction of the Sector Minister to punish him with revocation of the small scale mining license as at section 87 of Act 703, that is if he is a licensed Small Scale Miner. Otherwise with a fine of Cedis equivalent of five thousand US dollars as strictly specified at sections 106 to 108 of Act 703 and not for a High Court to punish him. .

The Linking of Section 14(1) of Act 703 which regulates formal Large Scale Mining concession matters on Transfer, Assignment, Mortgage, merging, matters with Section 99 of Act 703 on offences and penalties under small scale mining and scouted for a criminal punishment to punish Chairman Wontumi, negates Article 19(11) of the 1992 Constitution and sections 106 and 108 of Act 703 of Minerals and Mining Act 2006 (Act 703).

Hence, the defective charges by the Prosecutor, led to the seemingly bad judgment by the very respected and honorable Judge, thus render the case to be both illegal and unconstitutional, as to a breach of sections 106 and 108 of Act 703 of Minerals and Mining Act 2006 (Act 703) and Article 19(11) of the 1992 Constitution.

There is the need to educate the Public on the two main offences, namely (1). Criminal Offence and (2) Administrative Offence. The two are different based on the principle of in dubio pro reo means that when there is doubt, the decision must favour the accused. It works directly with the presumption of innocence and the rule that the State or the prosecutor must prove the guilt beyond a reasonable doubt.

The presumption of innocence as applicable to only in criminal offence, this does not imply for Administrative offence. In an Administrative offence, a separate penalty is imposed for each offence and not summing them in criminal offence.

Criminal Offence meaning a major act that harms society and breaks the criminal law, example theft, murder, rape etc, the prosecuting and sentencing authorities are separate, need to proof the guilt beyond reasonable doubt to be decided by a High Court or Military Court Marshal in the Military and by a full trial with the Court Marshal sharing the same powers of a High Court.

Criminal punishment include death, hard prison time, long jail stays, court fines, and the affected person leaves the prison etc. with a permanent criminal record.

On the other hand, Administrative Offence, meaning a minor breach of public rules or local rules to be decided by State Offices, the prosecuting and sentencing authority is the same person or are identical and not a criminal court, it only requires substantial evidence, often based on simple reports or direct checks without long trial.

Administrative Punishment include a cash fines, or warning, or cancellation or revocation of a special permit, and not allowed to hold any public office until after 10 years, no criminal record, against the person. Example ln the civil sector was the very sad Apiate Bogoso explosion disaster on 22 January 2022 involving a Service Provider in the mining sector.

For the tragic Appiate-Bogoso explosion, the government of Ghana punished the responsible company, Maxam Ghana Limited, with a $6 million total financial penalty ($1 million administrative fine for regulatory breaches and $5 million allocated toward support and damages), alongside a temporary suspension of their operating license etc.

So, by Clause 11 of Article 19 of the Constitution, it was wrong by the Prosecution team to use Section 14 of Minerals and Mining Act 2006 (Act 703) which falls between Section 1 and Section 80 of Act 703, which govern the Large Scale Mining Sector as an offence allegedly committed by a licensed Small Scale Miner, herein Chairman Wontumi, who operated in the Small Scale Mining Sector, which is duly governed with Section 81 to Section 99 of Act 703.