The Accra High Court has sentenced the Ashanti Regional Chairman of the New Patriotic Party (NPP), Bernard Antwi-Boasiako, popularly known as Chairman Wontumi, to 20 years’ imprisonment after convicting him of offences relating to the unlawful assignment of mineral rights and the facilitation of unauthorised mining activities at Samreboi in the Western Region.
Justice Audrey Kocuvie-Tay found Chairman Wontumi guilty on Count One, which charged him with assigning mineral rights without the approval of the Minister responsible for Lands and Natural Resources, and Count Four, which concerned purposefully facilitating unlawful mining activities.
The court also convicted Akonta Mining Limited on Count Three and Count Six, which related to the same offences, after holding that the prosecution had proved all the essential elements of the charges beyond reasonable doubt.
The conviction and sentence followed a trial in which the accused persons had pleaded not guilty to the charges brought under the Minerals and Mining Act, 2006 (Act 703), as amended by the Minerals and Mining (Amendment) Act, 2020 (Act 995).
In addition to the custodial sentence imposed on Count One, the court also imposed a fine of 10,000 penalty units in relation to Count Four, with a default custodial sentence of three years.
Constitutional Application Dismissed Before Judgment
Before delivering its decision on the substantive charges, the court dismissed a last-minute application by the defence seeking to delay judgment and refer certain constitutional questions to the Supreme Court.
The application argued that issues raised in the defence’s written address required constitutional interpretation, particularly concerning the interpretation and application of provisions under the Minerals and Mining Act.
Justice Kocuvie-Tay, however, held that Section 99(2)(b) of the Minerals and Mining Act, 2006 (Act 703) was clear and unambiguous and did not conflict with Article 19(11) of the 1992 Constitution.
Relying on the decision in R v Mainkankan, the court held that a constitutional referral was only necessary where there was a genuine ambiguity requiring interpretation.
According to the court, the defence’s argument was essentially that Parliament ought to have enacted the law differently, and that did not amount to a constitutional question requiring determination by the Supreme Court.
Why the court convicted Wontumi
A major issue before the court was whether Chairman Wontumi and Akonta Mining Limited unlawfully allowed another person, Henry Okum, to undertake mining activities within Akonta Mining’s concession without the required approval from the Minister responsible for Lands and Natural Resources.
On the charge of unlawful assignment of mineral rights, the court held that the prosecution was required to establish three key elements:
that Akonta Mining held the mineral rights;
that those rights were transferred, assigned, or otherwise dealt with; and
that the dealing occurred without ministerial approval.
Justice Kocuvie-Tay held that the prosecution satisfied all three requirements.
The court noted that the absence of ministerial approval was not disputed. Evidence from the Minerals Commission outlined the approval process, while the accused persons admitted that no approval had been obtained.
A central defence argument was that Henry Okum had only been allowed to reclaim degraded portions of the concession and was not authorised to engage in mining.
The court rejected that explanation.
Justice Kocuvie-Tay relied on Mr Okum’s testimony that he was a small-scale miner who had not received funding to undertake reclamation works. Instead, he stated that he was permitted to mine unworked portions of the concession and use proceeds from the mining activities to finance reclamation.
The court observed that this evidence was not challenged during cross-examination.
Justice Kocuvie-Tay therefore concluded that the arrangement went beyond reclamation and amounted to allowing another person to exercise Akonta Mining’s exclusive mineral rights without the approval required by law.
The court described Chairman Wontumi’s explanation that Mr Okum would recover his investment through future coconut farming as “an afterthought.”
Court Lifts Akonta Mining’s Corporate Veil
The court also considered whether Chairman Wontumi could be personally held responsible for offences committed through Akonta Mining Limited, given that a company ordinarily exists as a separate legal entity from its shareholders and directors.
Justice Kocuvie-Tay acknowledged the principle of separate corporate personality but held that the circumstances of the case justified lifting the corporate veil.
The court found that Akonta Mining did not operate through a functional board of directors and that Chairman Wontumi exercised effective control over the company’s mining operations.
The court consequently treated him as the de facto controller of the mining lease and held him personally liable for the offences committed through the company.
How the Court Found Facilitation of Illegal Mining
On the charges of purposefully facilitating unlawful mining activities, the court held that Chairman Wontumi and Akonta Mining allowed Henry Okum to access the concession and conduct mining operations without the necessary approvals under the Minerals and Mining Act.
The court also relied on evidence that Chairman Wontumi introduced Mr Okum to an individual who assisted him in acquiring an excavator for the operations.
Although the defence maintained that the arrangement was solely for reclamation purposes, the court found that the evidence established that permission had extended to mining activities.
The Legal Arguments That Failed
The High Court rejected several arguments advanced by the defence.
One of the arguments concerned the interpretation of the phrase “otherwise deal with” under the Minerals and Mining Act. The defence argued that the phrase should be narrowly interpreted alongside words such as “assign”, “transfer” and “mortgage”.
The court disagreed, holding that the wording of the law was sufficiently broad to cover the conduct established by the evidence.
The court also rejected the argument that the absence of a written agreement between Akonta Mining and Henry Okum weakened the prosecution’s case.
Justice Kocuvie-Tay held that criminal liability could arise from informal arrangements where the evidence established that prohibited conduct had occurred.
Background
Chairman Wontumi was charged alongside Akonta Mining Limited over allegations that mineral rights belonging to the company’s concession at Samreboi were unlawfully dealt with and that mining activities were facilitated without the required approvals.
He pleaded not guilty to the charges and maintained his innocence throughout the trial.
The case also experienced procedural developments after Chairman Wontumi appointed former Abuakwa South Member of Parliament, Samuel Atta Akyea, as his new lead counsel following the withdrawal of his previous lawyer, Andy Appiah-Kubi.
Mr Atta Akyea subsequently sought additional time to familiarise himself with the case and prepare written submissions. The court granted an extension for the filing of written addresses but later declined a further request to postpone judgment.
Justice Kocuvie-Tay held that adjournments were within the discretion of the court and that the pending applications before it did not require oral arguments before determination.
The conviction brings the trial stage of the long-running Samreboi mining case to an end. Chairman Wontumi retains the right to challenge both his conviction and sentence through the appellate process.
