Fighting the galamsey menace: My opinion (I)

INTRODUCTION

In the wake of the galamsey menace, there have been many sug­gestions to be adopted to help in its fight. Some people have suggested what they termed “shoot to kill”. That is, security officers who have been deployed to combat the menace should shoot and kill people engaging in galamsey.

However, I do not think this should be encouraged in any way. First, the ambit of Article 13(2) of the 1992 Constitution and section 37 of the Criminal Offences Act, 1960 (Act 29) where use of force can be justi­fied in certain cases in my view do not cover the fight against galamsey.

And even in those instances, the use of force must be nec­essary, reasonable and propor­tional. That is, where the person using such force has no other means to stop the commission of the crime. However, there are other means which we can adopt as a country to fight the galamsey menace.

Article 13 of the Constitu­tion provides as follows:

“(1) No person shall be deprived of his life intention­ally except in the exercise of the execution of a sentence of a court in respect of a crimi­nal offence under the laws of Ghana of which he has been convicted.

(2) A person shall not be held to have deprived another person of his life in contraven­tion of clause (1) of this article if that other person dies as the result of a lawful act of war or if that other person dies as the result of the use of force to such an extent as is reason­ably justifiable in the particular circumstances-

(a) for the defence of any person from violence or for the defence of property; or

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(c) for the purposes of sup­pressing a riot, insurrection or mutiny; or

(d) in order to prevent the commission of a crime by that person.”

Section 37 of Act 29 also provides:

37. Use of force for pre­vention of, or defence against, criminal offence

“For the prevention of, or for personal defence, or the defence of any other person against a criminal offence, or for the suppression or disper­sion of a riotous or an unlawful assembly, a person may justify the use of force or harm which is reasonably necessary extend­ing in case of extreme necessity even to killing”.

Again, the shoot to kill suggestion can lead to inno­cent people being killed. Some people can also use it to settle personal scores with other people they perceive to be their enemies by shooting them or as revenge. Afterall, as the saying goes, “dead man does not talk. And no witness no case”

Furthermore, the Criminal Offences (Amendment) (No. 2) Act, 2023 (Act 1101) under section 1 has even abolished death sentence with respect to a person who has been con­victed for Murder by amending section 46 of Act 29.

The old section 46 of Act 29 had provided as follows:

46: Murder

“A person who commits mur­der is liable to suffer death”.

Section 1 of Act 1101 now provides:

“A person who commits mur­der is liable on conviction to life imprisonment”.

I also do not think burning of excavators can solve the prob­lem. Those excavators cannot burn easily. And the owners may only have to change the burnt parts and use them again. The excavators can be confis­cated and forfeited to the State.

Wherever galamsey activity is going on cannot be concealed. It can easily be identified. The place will speak for itself and will not need any explanation.

Jeremiah 2:7 provides: “I brought you into a fertile land to eat its fruit and rich produce. But you came and destroyed (defiled) my land and made my inheritance detestable”

Suggestions

I suggest that if the following steps are taken, they would help in its fight and the country may not have to spend huge sums of money in fighting it. The Soldiers cannot be on the field for months or years because, that would cost the country so much money.

1. All District/Municipal/ Metropolitan Chief Executives should be given between four to six months to stop galamsey activities in their respective districts, municipal or metro­politan areas if any. Any of the affected District/Municipal or Metropolitan Chief Execu­tives who fail to stop galamsey within the time frame should be dismissed, and the reason for his/her dismissal should be given, to serve as a deterrent to others and anyone who would be appointed as replacement.

2. Police Commanders in the affected Regions, Districts/Mu­nicipalities /Metropolitan areas where galamsey activities take place should give the District/ Municipal/Metropolitan Chief Executives the needed assis­tance to curb the menace within the given period under point 1 (supra). Any officer who flouts this directive should be inter­dicted pending investigations or transferred.

3. The head of Environmen­tal Protection Agency (EPA) in every District/Municipal/ Metropolitan Assembly where galamsey activities are taking place should assist the various District /Municipal/Metropoli­tan Chief Executives in curbing the menace within the given pe­riod as stated in point 1 above. Any affected EPA official who flouts this directive should be interdicted pending investiga­tions or transferred.

4. It is not possible, that regional ministers, MMDCES, chiefs, individuals, families, clans, companies etc. in whose jurisdictions or on whose lands galamsey activities are taking place are not aware of such destructive activities. Therefore, any of theabovementioned per­sons or entities who fail to help in fighting galamsey can be said to have abetted it, and should be charged for the offence of abetment of a crime or failing to prevent felony under the Criminal Offences Act, 1960 (Act 29) together with the rele­vant Mining Act or Regulation.

The parameters of these two inchoate offences are very wide.

To be continued…

BY JUSTICE FRANCIS OBIRI