The Mining laws of Ghana are embedded (rooted) in the Minerals and Mining Act 2006 (Act 703). Act 703 is structured into two main nomenclatures (clarifications) or sectors namely the Large Scale Mining Sector and Small Scale Mining Sector, with the associated Mining rights as Mining Lease (exploitation Rights, and Small Scale Mining License which is exclusively for Ghanaians respectively.

Large-scale mining in Ghana is opened to global persons or companies, but only after they meet strict legal, financial, and local incorporation rules. Unlike small-scale mining, which is strictly reserved for Ghanaian citizens, large-scale mining allows foreign participation. However, applicants face mandatory local content rules, capitalization minimums, and strict operational guidelines managed through Minerals Commission of Ghana.

The Large Scale Mining Sector is governed by Section 1 to Section 80 of Act 703, with corresponding offences and penalties at Sections 106 to 108 of Act 703, strictly administrative offences. Hence exclusively as ministerial jurisdiction. Small Scale Mining Sector is governed with Sections 81 to 98 of Act 703 with the offences and penalties at Section 99 of Act 703, which are mainly meant for illegal Small Scale Mining activities or illegal gold transactions by persons with no mining rights for an affected area or no license for gold transaction matters. Hence matters with no mining rights be it mining lease of licensed Small Scale Mining entails criminal undertone so exclusively, the Jurisdiction of a High Court.

A breach of any provision of Act 703 by a holder of a mining right whether mining lease (exploitation rights) or Small Scale Mining license, unless stated in the specific provision does not constitute illegal mining but a breached of the provision. Hence an administrative offence as provided under Administration and miscellaneous provisions, covering from Section 100 to section 112 with corresponding penalties at Sections 106 to 108 or in case of transfer matter with small scale mining at section 87 on revocation of small scale mining license by the Minister.

To meet the requirements of Article 19(11) of the 1992 Constitution, the offences and penalties related to a breach of any provision of Act by a holder of mining right whether mining lease (exploitation rights) or Small Scale Mining license are defined by Act 703, as strictly administrative Offences, unless stated otherwise. Hence, the corresponding penalties are exclusively within Ministerial Jurisdiction and not a law Court.

Note, by Article 19 (11) of the Constitution, a true administrative breach must strictly follow to it corresponding penalties, so with a breach of Section 14 (1) of Act 703, the Administrative offences and penalties are provided from Section 106 to 108 and not at section 99 with prison sentenced as wrongly made by the High Court. That is to say a breach of Section14 (1) of Act is strictly calls for only administrative fine protocol of sections 106 to 108. So the Prosecution and the High erred with the use section 99 to penalize Chairman Wontumi due to an alleged breached of section 14(1). By Article 19(11), this is unconstitutional.

It should be noted that Section 14(1) of Act 703, falls within Section 1 to 80, which are the sections which govern Large Scale Mining Sector and this section14 (1) of Act 703 decreed that, ‘A mineral right shall not in whole or in part be transferred, assigned, mortgaged or otherwise encumbered or dealt in, in a manner without the prior approval in writing of the Minister’.

In event of a breach of this provision of Section 14(1) of Act 703 by a Mining Lease holder or a Large Scale Mining Company, the matter entails an administrative offence and not a criminal offence. Since Sections 1 to 80 have their corresponding offences and penalties defined under Administration and Miscellaneous provisions which covers from Section 100 to section 112 to be dealt with in the office of the sector Minister and not for adjudication in a law Court room.

Likewise, a breach of Section 88 of Act 703 which falls under Small Scale Mining and which decreed that ‘A license granted under section 82 (1) may be transferred only to a citizen and with the consent of the Minister’ so in case any breached by small scale miner with mining rights, the act entails an administrative punishment as defined at section 5 or at section 87 both on revocation of mining rights to be executed by the Minister only.

This is so, since, Section 5 of Act 703 grants power to the Minister to revoke mining rights whether Small Scale Mining license or Mining lease of a Large Scale Mining operator and Section 87 of Act 703, gives the power to the Minister to revoke small scale mining right or license due a breach of a provision of the terms and conditions of the license so granted.

It should be noted that Section 87 of Act 703 which deals on Revocation of Small Scale Mining license, by the Sector Minister, duly granted under section 82 (1) where, (a) the Minister is satisfied that the licensee has contravened or failed to comply with a term or condition of the license or a requirement applicable to the licensee, (b) the licensee is convicted of any offence relating to the smuggling or illegal sale or dealing in minerals etc. Otherwise the Minister may opt to use section 106 to 108 of Act 703 to deal with the breach

It needs to be emphasized that by Clause 11 of Article 19, the provision of section 87 under small scale mining, the penalty is at Section 88 when it involved a small scale miner with mining rights. With a Large Scale mining the corresponding provision on matters on transfer, assignment mergers etc as at the provisions if 14(1), the offences and penalties’ are from section 106 to section 108, under Administration and Miscellaneous,

Thus a breach of section 88 by a Small Scale Mining license holder for a designated area, on transfer matters, is not a criminal offence, but an administrative offence and the matter is exclusively the jurisdiction of the Sector Minister to act accordingly, as provided at Section 5 or section 87 or and from section 106 to section 108.

Likewise in the case of a holder of a Mining Lease, a breach of Section14(1) is not a criminal offence, but an administrative offence, exclusively the jurisdiction of the Sector Minister to act accordingly as provided from section 106 to section 108 under administration and miscellaneous.

Based on the above augment, it should be very clear that if Chairman Wontumi, whether with a mining lease, hence as a legal large scale miner mining holder or as a small scale mining license holder, truly breached a provision of Act 703, on transfer or assignment, he did not commit a criminal offence, but an administrative offence.

The matter with section14 (1) used to charge Chairman Wontumi, is exclusively the jurisdiction of the Sector Minister to punish him with revocation of the mining rights or revocation of the small scale mining license as at section 87, that is if he is a licensed Small Scale Miner. Otherwise with a fine of Cedis equivalent of five thousand US dollars as strictly specified at section 108 of Act 108 and not for a High Court to punish him.

Consequently, the Charge sheets bearing the charges against Chairman Wontumi, found by the Court as legal mining right holder for the area, which the Prosecution team alleged that he violated Section 14(1) of Act 703, under Large Scale Mining and linking it with Section 99 under Small Scale Mining led to the Judge sentencing Chairman Wontumi to 20 years of imprisonment, strongly demonstrated, a miscarriage of justice, executed by the State against Chairman Wontumi due to defective charges and weak defense.

The Linking of Section 14(1) which regulates formal Large Scale Mining concession matters on Transfer, Assignment, Mortgage etc, merging with Section 99 on offences and penalties udder small scale mining and for the scouting for a criminal punishment and not administrative punishment to punish him, negates Article 19(11) of the 1992 Constitution and sections 106 and 108 of Minerals and Mining Act 2026 (Act 703). Hence the acts by the Prosecutor and the respected and honorable Judge due to wrongly act by the Prosecutor render the case to be both illegal and unconstitutional as created by very serious defective charges.

Due to this case, there is the need to say that in the Civil Sector aside civil law offence, there are two main offences, namely (1). Criminal Offence and (2) Administrative Offence. The two are different based on the principle of in dubio pro reo, means that when there is doubt, the decision must favour the accused. It works directly with the presumption of innocence and the rule is that the State or the prosecutor must prove the guilt beyond a reasonable doubt. This was not the situation with the Chairman Wontumi’s smaerboi mining case

The presumption of innocence as applicable to only in criminal offence, this does not imply for Administrative offence. In an Administrative offence, a separate penalty is imposed for each offence and not summing them in criminal offence.

Criminal Offence meaning a major act that harms society and breaks the criminal law, example theft, murder, rape etc, the prosecuting and sentencing authorities are separate, need to proof the guilt beyond reasonable doubt to be decided by a High Court or Military Court Marshal in the Military and by a full trial with the Court Marshal sharing the same powers of a High Court.

Criminal punishment include death, hard prison time, long jail stays, court fines, and the affected person leaves the prison etc. with a permanent criminal record.

On the other hand, Administrative Offence, meaning a minor breach of public rules or local rules to be decided by State Offices, the prosecuting and sentencing authority is the same person or are identical and not a criminal court, it only requires substantial evidence, often based on simple reports or direct checks without long trial.

Administrative Punishment include a cash fines, or warning, or cancellation or revocation of a special permit, and not allowed to hold any public office until after 10 years, no criminal record, against the person. Example ln the civil sector was the very sad Apiate Bogoso explosion disaster on 22 January 2022 involving a Service Provider in the mining sector.

For the tragic Appiate-Bogoso explosion, the government of Ghana punished the responsible company, Maxam Ghana Limited, with a $6 million total financial penalty ($1 million administrative fine for regulatory breaches and $5 million allocated toward support and damages), alongside a temporary suspension of their operating license etc

To sum up, by Clause 11 of Article 19 of the Constitution, it was wrong for the Prosecution team to use Section 14 (1) of Minerals and Mining Act 2026 (Act 703) which falls between Section 1 and Section 80, which are the sections which govern the Large Scale Mining Sector for an offence allegedly committed by a license Small Scale Miner, herein Chairman Wontumi, who operated in the Small Scale Mining Sector, which is duly governed with Section 81 to Section 99 with section 88 that indicate that ‘ a license granted under section 82 (1) may be transferred only to a citizen and with the consent of the Minister’ the catch word is not transferable , so the word assignment from Section 14 (1) in the charge sheet is totally alien to the Small Scale Mining Sector.

Hence, since the law on Small Scale Mining is silent on assignment but very clear with the word transfer in Act 703 under small scale mining since the two have different meaning in terms of control thus assignment may be permissible in the Small Scale Mining Sector. So, the shopping at Section 99 of Act 703 for the corresponding punishment for a breach of section 14 (1) is technically and fundamentally very wrongly.

So, if the Prosecutor and the Court indicated that Chairman Wontumi, a mining right holder, breached Section 14 (1) of Act 703, then the matter was strictly a Ministerial Jurisdiction, not that of a Law Court. Readers, should Google for the Special Training organized on the offences and penalties regime, under Ghana’s Minerals and Mining Act 2026 (Act 703) for Judges etc by the Minerals Commission and Google for Minerals and Mining Act 2026 (Act 703) and read section 5, section 87, section 106, section 107, section 108 to appreciate the state of affairs.