By: Dr Steve Manteaw
An examination of the legal provisions, historical context / practice, and way forward.
I have read on social media, a write up attributed to Bright Simons, in which he raises fundamental questions that go to the heart of resource governance i.e. whether or not a lease owner can mine
when the lease has not been ratified by Parliament? And whether or not gold produced in such instance can be disposed of (sold) by the lease owner.
The writer quizes: “Why are they [E&P] selling gold from a mine when their lease has yet to be ratified by Parliament. The law is clear. Until Parliament ratifies a lease, the gold in any concession belongs
to the State, and no other Company. E&P has no right to be selling the gold. Even if these are stockpiles left by Gold Fields, they belong to the State. And then they make it look like they are doing Ghana a favor;”
While the questions raised are legitimate, the responses must be situated within a certain historical context, while highlighting the governance gaps that must have given rise to the situation
where actual mining precedes parliamentary ratification.
Both the 1992 Constitution and the governing Act of the mining industry (Act 703) did not stipulate a time frame for obtaining parliamentary ratification of leases. They also did not put any obligation on the company in terms of taking any action to obtain parliamentary ratification. So, it turned out that,
historically, many large-scale mining companies operated for several years, in some instances, a decade or more, without the ratification of their mining leases.
The part of the law that has guided the established practice over the years is Section 13 of the Minerals and Mining Act (Act 703) which provides the procedure for the grant of a mineral right
over a concession. Per Section 13 (1), after the Minerals Commission has recommended the approval of an application for a mineral right, the Minister shall notify the Applicant in writing within 60 days and after which the said approval shall be published in the Gazette. Per section 13(4), the Applicant shall notify the Minister in writing of the acceptance of the offer of the grant of
the mineral right. Per section 13 (5), the Minister shall upon receipt of the notification of acceptance of the offer, grant the mineral right to the Applicant. Per section 13 (9), the grant of the mineral right by the Minister, entitles the holder to enter the land in respect of which the right is granted.
In the particular case of the Damang Gold Mine Limited (DGML), I am aware that,every single step set-out in Section 13 has been complied with and there are documents to proof same. The presence of E&P and DGML on the Damang Concession is therefore well grounded in
law.
The records also confirm that E&P and DGML have since 18th April 2026, paid all the salaries of the workers and all the other operational expenses associated with the running of the mine. Some of these payments were made even before the sale of the first gold from the mine.
It is true that DGML has not signed a Mining Lease in respect of the Damang Concession yet. But per Article 268 of the 1992 Constitution, a mineral right is not restricted to a mining lease. It could
be an undertaking, contract or transaction, howsoever described. The situation in respect of the Damang concession clearly fits the intention of the framers of the 1992 Constitution.
The exigencies of the Damang situation, required the Minister to enter into the transaction to prevent the mine from shutting down from the 18th of April 2026.
I do not think the Government’s stake in the revenues accruing from the sale of the gold have been compromised in any way. It is in preserving the revenues
that they have been retained in Ghana, so that it will be easy for the Parties to undertake a thorough reconciliation of accounts after Parliament has ratified the mineral right and confirmed what percentage from the revenues should be paid to the Government of Ghana. This an issue GHEITI will pay attention to in compiling its annual report.
I find it strange that, even though almost all the foreign mining companies operating in Ghana did not have their leases ratified before going into operations, and selling the bulk of their
gold overseas, we saw no reason to put up the same argument, that, the gold that were being exported outside Ghana did not belong to the foreign companies. Let not the impression be created that the black man is his own enemy.
Can Companies be Blamed for Proceeding to mine while Ratification is Pending?
Technically, the answer is NO. They couldn’t be blamed because the responsibility for ratification rests NOT on them, but on the executive arm of Government (in this case the Minister) and Parliament.
It is important to understand that, most mining companies might have contracted huge loans for their projects, and any delay in commencing operations would mean mounting interest cost, even before they begin operations.
So it was, that, when in 2019, two members of parliament filed a suit against the Attorney General and 35 mining companies, for mining without ratification of their leases, and in breach of Article 268 of the 1992 Constitution, the Government could not invoke any sanctions against the companies. It could not ask for a refund of all the proceeds from gold sales over the period of non-ratification. Parliament just proceeded to correct the mistake in order to normalize the situation.This is the precedence that has been set. If we accommodated multi-national companies on this score, why not our own indigenous company, especially when the Damang mine is not an
entirely new mine, and when a halt in operations would result in loss of jobs and revenues to the state.
It is therefore prudent in this context, to continue operations while pursuing
parliamentary ratification.
Way Forward
1. Government is encouraged to take advantage of the on-going reforms in the mining sector, to amend the governing Act (Act 703) of the industry to set a time frame for Parliamentary ratification of leases.
2. Again, Government ought to take immediate steps to eliminate the bureaucratic delays that
compel companies to jump the gun before ratification.
3. And finally, if the law is to be strictly enforced, which I endorse, Government must provide for the payment of compensation for any loss of potential revenue arising out of the delay in ratifying leases.
