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Six civil society organisations and an individual have filed a lawsuit at the Accra High Court seeking to stop persons or companies that have been granted licenses to mine in forest reserves in Ghana under the Environmental Protection (Mining in Forest Reserves) Regulations, 2022 (L.I. 2462).
The plaintiffs—A Rocha Ghana, Nature and Development Foundation, Civic Response, Ecoconscious Citizens, Kasa Initiative, Tropenbos Ghana, and Dr Ken Ashigbey— filed the interlocutory injunction on September 18, 2024.
They want to prevent these companies from mining before the court decides on their substantive case, which is an order for the revocation of LI 2462—the law regulating mining in forest reserves.
The suit seeks for “an order restraining any person or entity, to whom mineral rights, licences, or leases and or environmental permits have been issued by the 1st, 2nd, 3rd, or 4th Defendants/Respondents for the undertaking of mining activities in forest reserves, from undertaking any such activities, pending the final determination of the substantive suit.”
The defendants include the Minister for Environment, Science and Technology, the Environmental Protection Agency, the Minister for Lands and Natural Resources, the Minerals Commission, the Speaker of Parliament, and the Attorney-General.
Their suit follows an investigation by The Fourth Estate that revealed the identities of officials of the incumbent New Patriotic Party (NPP) and government appointees who are scrambling for mining licences in Ghana’s forest reserves. The owners of some of the companies that have obtained these licences include the mayor of Ghana’s second biggest city, Kumasi, Sam Pyne and a Parliamentary Candidate for the NPP in Juaben, Francis Owusu-Akyaw.
The Ashanti Regional Chairman of the NPP, Bernard Antwi Boasiako, the District Chief Executive of Wassa East, Emmanuel Boakye, and the NPP’s Women’s Organizer in the Western Region, Angela Bint Ntaama, including a presidential staffer, Harriet Kyeremanteng, all have companies whose licences are waiting ministerial approval to mine in forest reserves.
The Fourth Estate’s investigations revealed that since 2023 at least 10 companies have been granted mining leases to mine in 11 mining forest reserves. Four of the companies are to operate in globally significant biodiversity areas.
Regulation 3(2) of LI 2462 gives the President the discretion to approve mining activities in globally significant biodiversity areas. The CSOs want this power curtailed while they argue for the annulment of the LI in court.
The law was passed in November 2022 and has since seen a sharp increase in mining applications in mining forest reserves.
According to the suit, LI 2462 is not only inconsistent with the Forests Act, 1927 (CAP 157), the Minerals and Mining Act, 2006 (Act 703), the National Land Policy, the Forest and Wildlife Policy, the Forestry Development Master Plan, but it also contravenes the 1992 Constitution.
Ghana’s Land Policy states that “lands declared as forest reserves, strict nature reserves, national parks, wildlife sanctuaries and similar land categories constitute Ghana’s permanent forest and wildlife estates, and are fully protected for ecosystem maintenance, biodiversity conservation and sustainable timber production…. Land categories outside Ghana’s permanent forest and wildlife estates are available for such uses as agriculture, timber, mining and other extractive industries, and human settlement within the context of a national land use plan.”
The Forestry Development Master Plan targets total elimination of mining and prospecting in Ghana’s forest reserves by 2036.
Article 36 (9) of the 1992 Constitution states that “the State shall take appropriate measures needed to protect and safeguard the national environment for posterity; and shall seek cooperation with other states and bodies for purposes of protecting the wider international environment for mankind.”
In their substantive case, the plaintiffs are asking the Court to declare LI 2462 as null and void not only because of its negative ramifications.
They also say that the laying of the LI in Parliament breached the Public Financial Management Act, 2016 (Act 921). Section 100 of the Act requires that a fiscal impact analysis is carried out before a law is laid in Parliament.
Through a right to information request, the plaintiffs asked Parliament to confirm whether or not a fiscal impact analysis accompanied the LI. Parliament responded that the fiscal impact analysis had not been carried out.
Based on this and other factors, the environmentalists are praying the Court for “a declaration that any legislation or proposal which is laid before Parliament that is not accompanied by a fiscal impact analysis contrary to section 100 of the Public Financial Management Act is null and void.”
Many environmental groups have not hidden their concerns about the grave impact LI 2462 would have on the country’s forest estate since it was passed in November 2022.
In a recent statement, the Ghana Institute of Foresters said although the LI appears to be seeking to protect the country’s forests, it has rather “has opened the floodgates for institutionalized mining in our forest reserves.”
The umbrella body for forestry experts said it was “completely left in the dark” throughout the processes that led to the passage of LI 2462.
The GIF indicated that it was shocked when they learnt about the passage of the LI.
This is because, according to the body, the LI 2462 “legally permits unlimited mining in forest reserves. Not even the ecologically sensitive Globally Significant Biodiversity Areas have been spared.”
Before LI 2462, an administrative framework for mining called the Environmental Guideline for Mining in Production Forest Reserves permitted limited mining of not more than 2% of timber production reserves.
To give the guideline the legal teeth to bite its offenders, stakeholders called for a total ban on mining in forest reserves and the enactment of a law to protect these reserves.
However, LI 2462, which was supposed to fill this gap, appears to have incentivised some government appointees to apply for license to mine in Ghana’s forest reserves.
The Fourth Estate’s investigations revealed that as of August 13, 2024, at least 25 companies had filed 32 applications to mine and prospect in 24 forest reserves. Ten of these mining leases have been granted by the Minister of Lands and Natural Resources, with 22 others awaiting approval. Four of these leases are in GSBAs.
As result, the CSOs, in their substantive case, are praying the Court to order the Ministry of Lands and Natural Resources and the Minerals Commission “from issuing any mineral rights, licences or leases for the undertaking of mining activities, including reconnaissance or prospecting activities in a forest reserve.”
The plaintiffs are also requesting an order to prevent all persons who have received mining permits from the regulatory bodies under LI 2462 from operating a mine in a forest reserve.
“An order restraining all persons to whom mineral rights, licences or leases have been issued by the 3rd and 4th Defendants for the undertaking of mining activities in a forest reserve from undertaking any mining activities allowed by the mineral rights, licences or leases,” according to the plaintiff’s writ of summons.
