For Mining In Ghana Without License
A Ghanaian, David Addo, has dragged some eight giant mining companies to the Accra High Court for mining in Ghana without the requite licenses and approvals.
The company, included Ghana Bauxite Company Ltd, Anglogold Ashanti, Newmont Ltd, Golden Star Resources, Ghana Manganese, Anglogold Ashanti Iduapriem and Asanko Gold Ghana Limited, and Mr Addo, insists they are violating the 1992 Constitution.
Kelvin Dushnisky, Anglo Ashanti Tom Palmer, Newmont CEO
Also joined to the lawsuit are the Attorney General and Minerals Commission, Mr Addo, among others wants the Court to declare that the mining companies named in the action, are mining the natural resources of Ghana illegally.
His case is that, the mining leases granted the mining companies by the government, has not been ratified by Parliament, therefore, the leases are void and of no effect.
The writ, filed on Monday December 9, 2019, asked the High Court to back Mr Addo’s claim that the companies are mining illegally.
He is seeking an order directed at the Attorney General and Minerals Commission, as well as the Auditor-General of Ghana or any reputable audit firm, to conduct or cause to be conducted a forensic audit into the operations of the companies to ascertain how much of Ghana’s mineral resources, have been extracted and exported in contravention of section 5 of Act 703 and article 268 (1) of the Constitution.
A further order for the refund or recovery of all natural resources or the cash equivalent of the countries natural resources extracted by the companies in branch of section 5 of Act 703 and article 268(1) of the Constitution.
An order of perpetual injunction restraining the companies from carrying on any exploitation/extraction of minerals or engaging in any mining activity.
He is also asking for a full audit into the activities of the companies as well as be made to pay back returns from their operations. Furthermore, Mr. Addo is seeking a lasting order against the companies from engaging in any mining activity in the country.
In a 20-point statement of claim, Mr Addo said the attorney general as the principal legal advisor of the government of Ghana, is constitutionally tasked with the responsibility of among others defending all suits instituted against the State, for which reason all suits commenced against the State must by law be instituted against the Attorney-General as the defendant.
Mr Addo, insists that since the mining leases held by the companies have not been ratified by Parliament, they do not have any right in law to commence mining on the concessions, hence ant activity conducted under the said mining lease is illegal and contrary to the laws of Ghana.
In this regard, he avers that, the companies “have no right or legal backing to engage in mining in Ghana when their mining in Ghana when their mining lease have not been ratified by Parliament”.
His position is that as a citizen of Ghana, he has a duty by virtue of the Constitution, to uphold and defend the Constitution and the laws of Ghana to ensure compliance, as well as to protect public property which includes mineral resources of Ghana.
He added that, although the Attorney General and Minerals Commission, are aware that the companies are illegally mining the minerals resources of Ghana, they have failed to act or ensure the application of the law to curb this illegality”.
His action comes on the heels of similar writ last year by two National Democratic Congress (NDC) Members of Parliament (MPs) for Tamale North and Ashaiman, Alhassan Suhuyini and Ernest Norgbey.
Exactly one year after the MPs writ, Mr Addo has also began a similar processes, further calling on the Court to restrain the companies from mining the natural resources of Ghana in flagrant breach of the law.
He also wants the Court to order the companies to pay back all minerals extracted from Ghana illegally.
The first time lawmakers The Herald, reported at the time, filed the suit in December 24, 2018, at the Supreme Court and said the aforementioned companies, violated Article 268 of the Constitution, when they commenced mining operations without Parliament ratifying their mining leases in accordance with Article 268 of the Constitution.
In a twelve point statement of claim to the apex court, the MPs argued that “Under our constitution especially article 268 of the constitution, a mining lease is not effective or valid unless ratified or approved by Parliament. Until Parliament approves a mining lease, a mining company cannot start mining”.
They said although some of the companies got their mining leases ratifies by Parliament, this was done long after they started operations.
Their checks indicated that almost all the mining firms “Are either doing so under mining leases that are yet to be ratified by parliament or were ratified by parliament long after the company had started operating or mining”.
It will be recalled that the Supreme Court of Ghana in a case brought against Exton Cubic Group Co. ltd by the Attorney General, decided that any mining lease that is not ratified is void and of no effect and confers no right.
The MPs said, their checks revealed that most of these companies are owned by foreigners who repatriate all the earning back to their home countries at the expense of Ghana.
“We must not allow or aid foreigners to come into our country and take away our natural resources in clear breach of the constitution. As citizens, we have a constitutional duty to protect, defend and enforce the Constitution of the land”.
Alhassan Suhuyini, a journalist turned politician and his colleague among other reliefs, want the Court to order Anglogold, Newmont and the other mining companies, to refund all monies or financial benefits that have accrued to them as a result of illegally mining Ghana’s natural resources.
“A further declaration that all revenues and financial gains (proceeds) made by 3rd to 37th defendants pursuant to carrying out the exploitation of mineral rights and other natural resources in violation of the provisions of article 268 of the 1992 Constitution, must be declared and accounted for to the government of the Republic of Ghana, from the date when they respectively started such exploitation of minerals and natural resources.”
In short the Plaintiff are saying that all the Defendants have breached the constitution of Ghana with reference to article 268 of the constitution by mining, and therefore want the court to restrain the mining companies from carrying on with their operations until the necessary ratification is done.
“An order of perpetual injunction restraining 3rd to 37th defendants from carrying on any exploitation of minerals or other natural resources unless and until their respective transactions, contracts and undertakings with the government of the Republic of Ghana, are ratified or exempted from ratification by the Parliament of the Republic of Ghana, in accordance with the provisions of article 268 of the 1992 Constitution of the Republic of Ghana,” they added in their writ.