The Attorney General and Minister of Justice, Gloria Akuffo, the Minerals Commission and a total of 35 mining companies, including Newmont, Anglogold Ashanti, Golden Star Resources and Ghana Bauxite Company, have been hauled before the Supreme Court for violating the 1992 Constitution.
The action, The Herald gathered was taken by two National Democratic Congress (NDC) Members of Parliament (MPs) for Tamale North and Ashaiman, Alhassan Suhuyini and Ernest Norgbey.
According to the first time lawmakers who filed the suit last month, December 24, 2018, 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 ratified by Parliament, this was done long after they started operations.
Their checks indicate 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”.
They mentioned some of the companies as Newmont, Anglogold Ashanti, Golden Star Resources and Ghana Bauxite Company.
The MPs maintain that until Parliament ratifies or gives approval to a mining agreement, the holder of the mining agreement cannot carry on any mining activity, hence the 35 mining companies acted illegally and in breach of the supreme law of the land, when they carried on mining before Parliament approved their licences.
“For a mining company to carry on mining when its mining lease has not been approved by Parliament is a clear breach of article 268 of the constitution. The Supreme Court has in recent times stated over and over again that an agreement which is obtained in violation of the constitution is unconstitutional. Hence since the mining leases have not met the constitutional requirement then it is unconstitutional for mining companies to carry on mining”.
The MPs said, their checks revealed that most of these companies are owned by foreigners who repatriate all the earnings 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.