The mining regulator, in a writ filed at an Accra High Court on August 2, 2021, said the directive by the Right To Information Commission was “unconstitutional, arbitrary, unreasonable and flawed with procedural improprieties.”
The Minerals Commission charged The Fourth Estate the equivalence of $1,000 (about GH₵6,000) to provide the information. But the RTI Commission said that information could be provided at a cost less than GH₵2 and ordered the Minerals Commission to comply within 14 days of the RTI Commission’s ruling.
Unhappy with the RTI Commission’s ruling, the Minerals Commission went to court for a judicial review.
The Fourth Estate had asked for a list of companies licensed to undertake mining in Ghana between January 2013 and May 2021, and companies whose licenses were revoked or suspended within that same period and the accompanying reasons.
The information was to assist The Fourth Estate to produce a story.
The RTI Commission, in its July 2021 ruling that annulled the Minerals Commission’s charge, said:
“The Commission directs the Chief Executive Officer of the Minerals Commission, Mr Martin K. Ayisi, to ensure the application of a charge or fee of either 1.80 pesewas multiplied by the number of pages of information to be printed or 1.90 pesewas, if the information in its entirety is to be emailed to the Applicant in PDF format,” part of the ruling read.
But The Minerals Commission is challenging that the ruling was but, a mistake. It said in its writ that “…. the Respondent’s act of pronouncing a new amount as fees for the provision of the information to the Interested Party [ The Fourth Estate] when ACT 989, the statute which birthed the Respondent gave it no such powers, [and] constitute an error of law apparent on the face of the record”.
Aside from asking the High Court to reverse the ruling, the Minerals Commission also wants the Court to order The Fourth Estate to pay the cedi equivalent of $1000 it had demanded.
The Minerals Commission justified this in the writ:
“In so far as the information requested by the Interested Party relates to minerals rights, any information from the Register of Mineral Rights is to be furnished in accordance with the prescribed legal requirements which includes payment by the Interested Party of the statutory Fee.”
The Minerals Commission had taken a position similar to that of the National Communications Authority (NCA) in the NCA vs Media Foundation for West Africa (MFWA) case. In that case, the NCA demanded GH₵2,000 to release information to the MFWA.
In court, the NCA argued that parliament had not approved any charges for information and, therefore, institutions relied on their own internal arrangements.
The Minerals Commission also argues that “Act 989[RTI Law] neither truncated nor rendered null and void, the Fee which Parliament had approved for the Applicant and to which the Interested Party was mandated to pay when he requested for the information.”
This contradicts the ruling in the NCA vrs MFWA case by Justice Gifty Agyei Addo on June 17, 2021 which said:
“… I come to the conclusion that the fees payable cannot be under section 82 [Electronic Communication Act, 2009 (Act 775)] but under section 75 of Act 989 [Right to Information Act, 2019]. In any event, there are no prescribed fees as they are supposed to be provided by parliament. Their inaction cannot however deny somebody’s right to information…”
The mining regulator further said only the Minister of Finance with the approval of the Parliament of Ghana could determine the fees and charges for services rendered by public institutions, which includes the Minerals Commission and the RTI Commission.
The RTI Commission had stated that section 43(2) (c) and section 44 (c) of Act 989 gave it the power to “make any determination as the Commission considers just and equitable, including issuing recommendations or penalties in matters before the Commission.”
The Minerals Commission refuted that in the writ and said the RTI Commission “is not a court of law and that it is only a court of law that has the power to interpret the provisions of a law passed by Parliament, and further interpret coordinate the laws”.
It further added that the RTI Commission acted out of jurisdiction when it told The Fourth Estate to pay GH₵ 1.90 pesewas instead of the GH₵ 6,000 it had demanded.
The landmark decision of the RTI Commission, the first-ever ruling of the recently established commission, was praised by right to information activists as positive signs that Ghana’s RTI law would work.
The Minerals Commission’s suit is also the first time the RTI Commission’s authority is being challenged in court.
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