As a student of Government at the ‘O’ and ‘A’ levels and Public Administration at the university, one of the interesting concepts I learnt is, Separation of Powers (SoP) and its associated Checks and Balances (CaB).

I was made to understand that ‘Separation of Powers’ was coined by Charles-Louis de Secondat baron de La Brède et de Montesquieu, an 18th century French social and political philosopher.

Monsieur Montesquieu explained the concept as, the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another.

I was also told about the three arms of Government, namely; Legislature, Executive and Judiciary. Some literature add the media as the fourth estate of the realm.

The rationale behind a system of SoP is, therefore, to prevent the concentration of power by providing for Checks and Balances. CaB is, thus, to ensure that no one branch of government would become too powerful.

Consequently, in Ghana for instance, the Legislature (Parliament, headed by Speaker A.S.K Bagbin) makes laws out of bills submitted by the Executive (headed by President Akufo-Addo) and the Judiciary (headed by Kwasi Annin Yeboah) has the power to declare such laws as unconstitutional, if they find it so.

As a member of the fourth estate, I have the mandate per Article 162 (5) of the 1992 Constitution, to hold all three accountable to you my reader. How about that? Article 162 (5) states that, “all agencies of the mass media shall, at all times, be free to uphold the principles, provisions and objectives of this Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana.”

A unique feature of Ghana’s government, though is the fusion of powers. That is the fact that some members of the Legislature (MPs) are members of the Executive (Ministers of State).

In my opinion, this negates the advantages in the principle of SoP and completely frustrates any efforts at CaB.

The Appiatse Regulator

Having worked in Ghana’s public sector for 13 years, in addition to the aforementioned academic allusions, I can state without equivocation that the concept of SoP and CaB are nonetheless, very integral in the workings of the Executive on its own.

For example, Article 190 of the 1992 Constitution describes the Public Services as comprising numerous agencies of the Executive. Among the Public Services are the Health Service, Police Service, Education Service and the Civil Service etc.

Under this arrangement, it is clear that while every Civil Servant is a Public Servant, not every Public Servant is a Civil Servant. Civil Servants include members of the government, members of various government's departments and members of embassies and consulates. 

Besides the Constitution, the Public Services Commission derives its mandate from Act (No. 482 of 1994) and the Civil Service, from PNDCL 327, 1993.

There are also the regulatory institutions such as the Commissions, Boards and Authorities which have been established by Acts of Parliament. The Food and Drugs Authority and the Minerals Commission are examples.

To put matters into perspective, I worked with the Nursing and Midwifery Council of Ghana (N&MC). This is an agency of the Ministry of Health. Indeed, the N&MC is mandated under Part three of the Health Professions Regulatory Bodies Act, 2013, Act 857 to secure in the public interest, the highest standards of training and practice of nursing and midwifery in Ghana.

While the Ministry of Health is a Civil Service organisation responsible for policy formulation, the N&MC is a Public Service institution responsible for regulating the training and practice of nurses and midwives. As agents of the Executive, the two organisations work in tandem, with the Ministry exercising political direction.

Similarly, the Ministry of Lands and Natural Resources is a Civil Service organisation per PNDCL 327, 1993, whereas the Minerals Commission is a Public Service institution as mandated by Minerals Commission (MC) Act, 1993 (Act 450), to be responsible for the regulation of mining and mining activities.

At the ‘O’ level, we were made to understand that when the need arises to compare concepts and subjects, your best bet is to present them in a tabular form. Here we go.

Ministry of Lands and Natural Resources

Minerals Commission

Established under Section 11 of the Civil Service Law, 1993 (PNDCL 327), and is mandated to ensure the SUSTAINABLE MANAGEMENT AND UTILIZATION of the nation’s lands, forests and wildlife resources as well as the efficient management of the mineral resources for socio-economic growth and development.

Established under the Minerals Commission Law (PNDCL.154). It is the Government agency with the primary responsibility of developing and coordinating mineral sector policies and monitoring their IMPLEMENTATION. With the promulgation of the 1992 Constitution, the Parliament of Ghana enacted the Minerals Commission Act, 1993 (Act 450) to give continued legal backing to the existence of the Commission. The Commission is responsible for the REGULATION and management of the utilizationof the mineral resources of Ghana and the co-ordination of the policies in relation to them.

I worked under the ‘Ministerial-ships’ of Ministers of both NPP and NDC administrations. Honourables Kwaku Afriyie, Courage Quashigah, Richard Anane, Sherry Ayitey, Alex Segbefia, A.S.K Bagbin and Kumbuor never gave me any indication that they were “the regulator” of the sector.

I remember each one of them wrote to the Board of the N&MC, for which I had the rare privilege of acting as Secretary, to seek ratification for policies that had regulatory implications. In the end the Council implemented these policies as though we originated them.

In spite of the clear distinction in mandate between the MLNR and the MC , the Minister for Lands and Natural Resources, Mr. John Abu Jinapor had cause to claim that, “the Minister is a regulator” on the Super Morning Show on February 9, 2022.

Here is what ensued:

Kojo Yankson: The $5m is not a fine, what is it? Is it a donation?

Hon. Abu Jinapor:  It is not a donation.

Kojo Yankson: What is it?

Hon. Abu Jinapor:  It is a demand for payment of an amount of money.

Kojo Yankson: On what basis?

Hon. Abu Jinapor:  Ooh, but the Minister is a regulator. So you ask yourself on what basis am I imposing the 14 conditions on them?

Kojo Yankson: I’m not sure what that has to do with the $5m.

Hon. Abu Jinapor: I am saying to you that as a Minister who is the chief regulator of the sector, you have the mandate to sanction a company, a player in the industry in all manner of ways; fine, demand of payment of an amount, imposition of conditions, suspension of their license, rearrangement of their operations. I find it a bit perplexing that there can be the suggestion that on what basis do you demand this payment and not a fine? It is discretionary power as a regulator.

With my knowledge on the SoP and CaB in the Public Sector as well as experiences with the Ministers alluded to above, I got confused. My reflect action was to do my thing. But that little voice that usually draws my attention to danger said to me- ‘check, the guy is a Lawyer’.

Check I did, from someone who works at the Public Services Commission. “Ministries are not regulatory bodies” my source wrote. My vim knew no bounds.

Yet that little voice reminded me that besides the Act, there should be a Legislative Instrument (LI) that details how the former is implemented. Then I remembered, that Mr. Jinapor mentioned his locus standi for imposing the $1m fine and the $5m charge on MAXAM, as the Minerals and Mining (Explosives) Regulations, 2012 (L.I. 2177).

Google came in handy to the rescue. This is what I found “in exercise  of the powers conferred on the Minister responsible for Mines by Section 110 of the Minerals and Mining Act, (Act 703), 2006, these Regulations are made this day 20th of March, 2012.”

Section 110 (1) states inter alia, “The Minister may, by legislative instrument, make Regulations for the purpose of giving effect to this Act.” ‘We learn everyday’ is what ran through my mind as I read this. Wherefore, I, on behalf of myself, confer on Hon. Samuel Abu Jinapor, the title, ‘The Appiatse Regulator.’

Whether or not MAKE (cause something to exist or come about; bring about) means, IMPLEMENT (put a decision, plan, agreement, etc. into effect), is what I wish I could petition the Supreme Court for interpretation, but for the legal fees- ‘Na sika no wƆhi?’

Why we must treat investors with circumspection

Few years ago, ‘Ghana is the gateway to Africa’, is a very captivating tagline used by government functionaries to attract investors into the country.

I did not know that this has changed until the quest to write about this issue sent me googling, GIPC. The first statement that hit me is this- ‘Grow in, grow with Ghana.’

To the uninitiated, GIPC stands for Ghana Investment Promotion Centre. “It is Ghana’s foremost investment attraction and promotion agency under the Office of the President.  Guided by the GIPC Act, 2013 (Act 865), the Centre courts and facilitates valuable investments to stimulate economic growth, unlock opportunities and spur job creation.  Our vision is to make Ghana the first destination of choice for investing in Africa by providing seamless one-stop-shop high value added services.”

That is how the GIPC is introduced on its website.

A further reading reveals its functions. Two particular ones, that concern the matter in issue, are these:

1. Formulation of investment promotion policies and plans, incentives and marketing strategies to attract both foreign and local investment.
2. Initiating and supporting measures that will enhance the investment climate for our Ghanaian and non-Ghanaian enterprises.

Evidently, such a flowery language in a well-couched corporate profile has served as the lure for many an investor into the country.

What I do not know, is whether or not the language was this fine, almost 30 years ago, when the owners of Maxam Ghana Limited (MAXAM) decided to locate a branch of their company here to help GIPC attain its mission to, “…stimulate economic growth, unlock opportunities and spur job creation.”

Stated differently, MAXAM has been contributing to the development of our dear nation for close to three decades. “UEE (Union Espanola de Explosivos) Ghana, was registered in 1993 as part of the internationalization of MAXAM, former UEE. The Tarkwa plant was licensed by MINCO and commissioned in 1995,” is information contained in the press release that MAXAM issued in reaction to the announcement of a fine of $1m imposed on it for its association, remotely, with the Appiatse disaster.

The company is part of the support activities for Ghana’s Mining Industry. “We apply all our talent, energy and knowledge to the mining, civil engineering, defence and sport shooting cartridge sectors, anywhere in the world” is what the company says about its raison d’etre.

History has it that, the plant was established within the Iduapriem concession, mined during those days by Ghanaian Australian Goldfields as part of their transition to new technology and modernization in blasting techniques.

Since then, MAXAM has expanded in Africa, serving as the hub and the   technical support platform to the operations in the region. One of the critical success factors of the expansion has been the contribution of highly skilled and trained local employees from Ghana. The enterprise employs directly, about 200 and indirectly, close to 80 Ghanaians, I gathered.

Directly, as is usually the case, workers employed would include; cleaners, security guards, drivers, accountants, procurement professionals and various categories of engineers.

Indirectly, suppliers, chop bar operators and petty traders (including roasted plantain and groundnut as well as pure water sellers) within the vicinity of the company, will benefit from its existence.

Currently, MAXAM supplies 30% of the Ghanaian mining industry and has had a long standing relationship with the University of Mines and Technology in Tarkwa (UMaT). Under this arrangement, students of UMaT undertake internship to benefit from the valuable on the job experience offered.  Many graduates of this University gain permanent employment at MAXAM, thus contributing to resolving the youth unemployment crisis in Ghana.

Those who find themselves elsewhere, no doubt, serve as ambassadors of the skills and competences they received while interning at MAXAM.

Such is the support of the company to the socio-economic development of Ghana. Nevertheless, we are treating it without the needed circumspection.

It would be recalled that in the afternoon of 20^th January, 2022, an explosion occurred at Appiatse, a town situated between Bogoso and Bawdie in the Western Region. Fourteen persons died and close to 1,000 were displaced. The entire town was destroyed.

Preliminary investigation, according to the Police, revealed that an explosive-laden vehicle, traveling from Tarkwa to Chirano mines, collided with a motorcycle, resulting in the explosion.

Subsequently, the Minister for Lands and Natural Resources (MLNR), Samuel A. Jinapor, ordered the CEO of Minerals Commission, to shut down operations of MAXAM Company Limited.

According to the directive, the shutdown of the entity is to pave way for further investigations. The company was consequently barred from undertaking any form of activity on its premises.

The Chief Executive Officer of the Ghana Chamber of Mines, Mr. Sulemanu Koney, is reported to have warned that the country risks losing $1.75 million on royalties per week, if MAXAM does not resume operations immediately.

This huge financial implications for all stakeholders in the mining sector notwithstanding, government did not budge and proceeded to set up a Three-member Committee to investigate the incident.

As has been found by the Committee, the explosives were transported by a sub-contracted company- Arthaans Enterprise and Transport Services, not MAXAM.

Here is the scenario. You order Uber to deliver a cake to your customer, along the journey, the driver got involved in an accident. A street-based pure water seller, who was hit, got her wares destroyed. Your cake too. Sadly, the pure water seller died. As a result, you have been accused of being responsible for the death of the deceased and the destruction of her wares. Not Uber, not the driver, but you. How?

And, the MLNR, in its considered opinion, proceeded to impose a fine of $1m on the company. The fact that the incident was an accident, as recounted in all media reportage and the Police’s blow-by-blow account, was lost on the MLNR.

To make matters worse, we are not told what specific breaches were committed by MAXAM. Instead, a generalist list of 14 prescribed precautionary measures are listed as a precondition for restoring its license to operate.

The MLNR’s faux pas is nonetheless, exposed by the rejoinder issued by MAXAM, “None of these breaches were the cause of the tragic road accident and all of them relate to the transport carried out by Arthaans Logistics. Based on a different interpretation of the applicable regulations, we believe that Maxam has not committed any of those breaches.”

The paragraph supra, is why MAXAM’s subsequent acquiescence (the reluctant acceptance of something without protest) is baffling. Hear them, “…however, to ensure the continuity of the business, to be able to supply our customers, to protect the employment of our workers and sub-contractors, Maxam   has decided to pay the fine and will comply with the measures of the Ministry of Lands and Natural Resources.”

Another perplexing (me too I have used it) occurrence, is the ambiguous manner in which information about the fine imposed on MAXAM, was couched.

“…I, have imposed an administrative fine of the cedi equivalent of one million United States dollars ($1,000,000.00), at the prevailing commercial rate on MAXAM. In addition to the fine, it has been agreed after extensive discussion with MAXAM that the company will pay to the government, cedi equivalent of five million United States dollars ($5,000,000.00) also at the prevailing commercial rate. For the avoidance of doubt, the total amount payable by MAXAM to the Government is six million United States dollars ($6,000,000.00) or its cedi equivalent at the prevailing commercial rate.”

In the process, the impression is created that MAXAM has been fined $6m as reported by all the media outlets. When indeed, the additional $5m, per MAXAM’s press release, was, “to ensure the continuity of the business... to protect the employment of our workers...”

Worse still, as recent as 12^th February, 2022, when Samson Lardy Anyenini asked Brother Abu on Newsfile when MAXAM will be allowed to resume operations, he responded, “the ball is in the Minerals Commission’s court.” This is after he confirmed that the fine had been paid. Hm!

When it comes to a fine, we assume ‘chief ministerial regulatory responsibility’ and impose it with alacrity. With regard to lifting a ban on operations, however, we smash the ball into the court of the real regulator. Chai!!!

It’s time to go

What the MLNR has lost sight of is that, there is a saying in most Ghanaian languages which goes thus, “when a person with a hunchback is being buried, another individual who has a hunchback, watches to see how he or she would be buried when death strikes.” The notion is that, persons with hunchbacks are buried face down, a departure from how all hunchback-less persons are laid for that eternal rest.

In plain language, what is being done to MAXAM is being witnessed by all foreign investors in Ghana. I have no doubt that prospective ones are also observing with keen interest.

Any wonder that out of the  70 or so members of the Ghana Chamber of Mines, only 4 (Anglogold Ashanti Ltd, Chirano Gold Mines Ltd, Goldfields Ghana Ltd, and Newmont Ghana Ltd) are reported to have voluntarily contributed $4m to the Appiatse Support Fund?

This gesture, my younger brother Abu, is reported by myjoyonline.com to have, “expressed his disappointment and dissatisfaction with the amount donated…it is not out of place for the Chamber to take up the entire cost of the reconstruction of the community, and if he had his way, he would have compelled the Chamber to do so.”

Speaking on the 12^th February, 2022 edition of the Newsfile, a Mining and Environmental Expert, Dr. Bright Oppong Afum, hinted that the international mining community is paying critical attention to the goings on. “…the international community will be following up and want to ensure that whatever that is happening in Ghana, if in future they want to invest in Ghana, they have that confidence, they are not liable to have a capital base for their business and also capital base for political endeavours,” Dr.  Afum alerted.

Therefore, I would not be surprised if upon seeing or hearing of any outreach programme by GIPC, led by the Chief Executive Officer, Mr. Yofi Grant, aimed at encouraging them to invest in Ghana, investors will certainly think twice about doing so.

The loud silence of the GIPC in this matter should therefore be of concern to any concerned Ghanaian who earns their keep from a foreign company operating in the country.  Maybe big brother Yofi is engaging the MLNR behind the scenes. That would be good. Otherwise, the signals being sent out there to the international investor community is undesirable.

Especially so, when we have not been told, in clear terms, that MAXAM, as an entity, breached specific aspects of the Minerals and Mining (Explosives) Regulations, 2012 (L.I. 2177), in relation to the fatal accident that occurred at Appiatse.

Observers, are worried.

Do pobachenn’a - That’s goodbye in Ukrainian language.

Let God lead. Follow Him directly, not through any human.