Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector

Chris Adomako-Kwakye; Richard Obeng Mensah

doi:doi:10.11648/j.ijls.20220501.24

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Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector

Chris Adomako-Kwakye, Richard Obeng Mensah

Published in International Journal of Law and Society (Volume 5, Issue 1)

Received: 25 October 2021 Accepted: 29 December 2021 Published: 28 February 2022

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Abstract

Ghana, through its constitutional arrangement, practices the public ownership of natural resources. The state grants mining rights to prospective investors in the mining sector. However, the exploitation of natural resources in Ghana has had devastating effects on its mining communities including deprivation and destruction of farmlands, delayed compensation, rising cost of living, inadequate housing, youth unemployment and family disorganisation. Besides, mining communities in Ghana face a number of challenges such as the failure to incorporate in legal provisions wealth creation opportunities for local indigenes as compensation for the deprivation of their land, and conflicts that erupt between mining companies and indigenes due to deprivation of their source of income. Using the doctrinal lecgal research, this article seeks to examine the legal environment regulating investments and investor protection in Ghana’s mining sector. The paper postulates that the prevailing legal regime in Ghana’s mining sector protects investors but ignores the needs of the local communities. It reveals that the current legal regime in Ghana for development of mining communities is heavily dependant on the royalties paid to the state, which has failed to ensure adequate development in mining communities. The article argues for a paradigm shift and advocates for a balance of protection and treatment for investors and mining communities because the existing legal regime for investment gives too much to investors and very little to mining communities.

Published in	International Journal of Law and Society (Volume 5, Issue 1)
DOI	10.11648/j.ijls.20220501.24
Page(s)	123-133
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2022. Published by Science Publishing Group

Keywords

Mining, Mining Rights, Development, Mining Communities, Foreign Direct Investment, Natural Resources and Deprivation

References

[1]	The 1992 Constitution of Ghana.
[2]	Office of the Administrator of Stool Lands Act, 1994, (Act 481).
[3]	The Concession Ordinance of 1900, Cap 14.
[4]	The Concession Ordinance of 1939, Cap 136.
[5]	The Concession Act, 1962, Act 124.
[6]	The Ghana Investment Promotion Centre Act, 2013, Act 865.
[7]	The Minerals Ordinance, 1936, Cap 155.
[8]	The Minerals Act, 1962, Act 126.
[9]	The Minerals and Mining Law, 1986, PNDCL 153.
[10]	The Minerals and Mining (Amendment) Act, 1994, Act 475.
[11]	The Minerals and Mining Act, 2006, Act 703.
[12]	The Minerals and Mining (Amendment) Act, 2015, Act 900.
[13]	Charles Oman ‘Policy competition for foreign direct investment: A study of competition among governments to attract FDI’, (OECD 2000).
[14]	Douglas Korsah Brown, ‘Human Rights and Mining Conflicts in Ghana's Human Rights and Environment: Conflicts and Norms in Globalizing World, Lyuba Zarky (ed) (Routledge 2002).
[15]	Paul Collier, ‘The Plundered Planet: How to Reconcile Prosperity with Nature’ (Oxford University Press 2010).
[16]	Robert Pritchard, ‘Safeguards for foreign investment n mining. In E. Bastida, T. Walde, & J. Warden-Fernandez (eds), International and comparative mineral law and policy: Trends and prospects, The Hague: Kluwer Law International, 2005.
[17]	Ana Maria Esteves, ‘Mining and social development: Refocusing community investment using multi-criteria decision analysis’, (2008) Resources Policy, Vol. 33, 39-47.
[18]	Andrew T. Guzman, 'Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties' (1998) Virginia Journal of International Law, Vol. 38, 640.
[19]	Anja Schaefer, ‘Corporate sustainability-integrating environmental and social concerns? Corporate Social Responsibility and Environmental Management, (2004) Vol. 11 (4).
[20]	Bernardini, P., ‘Investment protection under bilateral investment treaties and investment contracts’ (2001) Journal of Environmental Law, Vol. 2 (2), 246.
[21]	Campbell et al., ‘African Mining Codes Questioned’ (2003) Mining Journal, 108.
[22]	Chris Adomako-Kwakye, ‘Neglect of mining areas in Ghana: the case for equitable distribution of resource revenue’ (2018) Commonwealth Law Bulletin, Vol. 44, No. 4, 637-651.
[23]	Chris Adomako-Kwakye et al., ‘Is the Mineral Development Fund Act, the Panacea for development of mining areas in Ghana?’ (2018-2019) KNUST Law Journal, Vol. 8.
[24]	C. Vilhena Filho, ‘Main considerations in the formulation of mining policies to attract foreign investment’ (2002) Applied Earth Science, Vol. 111 (3), 181.
[25]	Daniel Owusu-Koranteng, ‘Mining Investment & Community Struggles’ (2008) Review of African Political Economy, Vol. 35, No. 117, pp. 467-473.
[26]	Emeka Duruigbo, 'Permanent Sovereignty and Peoples' Ownership of Natural Resources in International Law' (2006) George Washington Int'l Law Review, Vol. 38, 34.
[27]	Eric Neumayer and Laura Spess, ‘Do Bilateral Investment Treaties Increase Foreign Direct Investment to Developing Countries?’ (2005) World Development, Vol. 33 (10), 1567.
[28]	Francis Nii Botchway, 'Land Ownership and Responsibility for the Mining Environment in Ghana' (1998) Vol. 38 Natural Resources Journal, 519.
[29]	Fui Tsikata, ‘The vicissitudes of mineral policy in Ghana’ (1997) Resources Policy Vol. 23, 10.
[30]	Galvin Hilson and Natalia Yakovleva, ‘Strained relations: A critical analysis of mining conflict in Prestea’, Ghana (2007) Political Geography, Vol. 26, 98-119.
[31]	Gavin M. Hilson, ‘Structural Adjustment in Ghana: Assessing the Impacts of Mining-Sector Reform’ (2004) Africa Today, Vol. 51 (2), 53-77.
[32]	Godfried Appiah Okoh, ‘Grievance and Conflict in Ghana’s Gold Mining Industry: The case of Obuasi’, Futures (2014) Vol. 62, 51-57.
[33]	Heledd Jenkins, ‘Corporate Social Responsibility and the mining industry: conflicts and constructs’ (2004) Corporate Social Responsibility and Environmental Management, Vol. 11 (1), 29-31.
[34]	Hilson and Nyame, ‘Gold mining in Ghana’s forest reserves: a report on the current debate’ (2006) Area, Vol. 38 (2).
[35]	Jon Forster and J. H Bills, Comparison of the Impact of the Fiscal Regime on Gold Projects in Tanzania and Burkina Faso. Transition of the institution of mining and metallurgy: (2002) Applied Earth Sciences, 111, 195-199.
[36]	Joseph Taabazuing, ‘Mining Conflicts and livelihood struggles in dysfunctional policy environment: the case of Wassa West District, Ghana’ (2002) African Geographical Review, Vol. 31 (1), 33-49.
[37]	Kumah, A. ‘Sustainability and gold mining in the developing world’, Journal of Cleaner Production, Vol. 14 2006, 315-323.
[38]	Kyla Tienhaara, ‘Mineral investment and the regulation of the environment in developing Countries: Lessons from Ghana’ (2006) International Environmental Agreements: Politics, Law and Economics, Vol. 6, 372.
[39]	Omalu, M. K. & Walde, T., ‘Key Issues of mining law: A brief comparative survey as a background study for the reform of mining law’, Oil, Gas & Energy Law Journal (OGEL), 2002.
[40]	Patrick Wieland, ‘Going beyond Panaceas: Escaping Mining Conflicts in Resource-Rich Countries through Middle-Ground Policies (2013) 20 New York University Environmental Law Journal, 204.
[41]	Peter Arroja Eshun and Steve Aidoo Jellicoe ‘The Impact of Foreign Direct Investment on the Development of The Ghanaian Mining Industry’ (2011) Asian Journal of Business and Management Sciences, Vol 1 (1), 148-167.
[42]	Sangwani Patrick Ng'ambi, 'Permanent Sovereignty over Natural Resources and the Sanctity of Contracts, from the Angle of Lucrum Cessans' (2015) Loyola University Chicago Int'l Law Review, Vol. 12 (2), 154.
[43]	Theresa Garvin et al., ‘Community-company relations in gold mining in Ghana’ (2009) Journal of Environmental Management, Vol. 90, 573.
[44]	Uwafiokun Idemudia & Uwem E. Ite, ‘Corporate-community relations in Nigeria’s oil industry: a case study of Nigeria’ (2006) Corporate Social Responsibility and Environmental Management, Vol. 13 (4), 195-196 and 201-203.
[45]	James Otto, ‘The international competition for mineral investments: Implications for Asia-Pacific’, Centre for Petroleum and Mineral Law and Policy Seminar Paper No. Sp 15.
[46]	UNCTAD, ‘Taking of property: Issues in International Investment Agreement, UNCTAD/ITE/IIT/15, 2000, Geneva: United Nations, 12.
[47]	UNCTAD, ‘State contracts. Issues in International Investment Agreements, UNCTAD/ITE/IIT/2004/11, Geneva: United Nations, 2004, 26.
[48]	Thomas Akabzaa & Abdulai Daramani ‘The Impact of Mining Sector Investment: a Study of Tarkwa Mining Region. A draft Report. Structural Adjustment Participatory Review International Network (SAPRIN), Accra, Ghana, 2001.
[49]	Paїvi Lujala and John Narh, ‘Ghana’s mining communities, are still not getting their just dues’, available at https://theconversation.com/ghanas-mining-communities-are-still-not-getting-their just-dues-128638 assessed on 22^nd April 2020.
[50]	Paul Mitchell, ‘Taxation and Investment Issues in Mining’, in Advancing the EITI in the Mining Sector: A Consultation with Stakeholders, 2009, 28, available at https://eiti.org/files/documents/MINING%20Compressed.pdf#page=28 assessed on 9^th April 2020.
[51]	UNCTAD Investment Policy Hub https://investmentpolicy.unctad.org/international-investment-agreements/countries/79/ghana accessed on 9^th April 2020.

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APA Style

Chris Adomako-Kwakye, Richard Obeng Mensah. (2022). Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector. International Journal of Law and Society, 5(1), 123-133. https://doi.org/10.11648/j.ijls.20220501.24

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ACS Style

Chris Adomako-Kwakye; Richard Obeng Mensah. Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector. Int. J. Law Soc. 2022, 5(1), 123-133. doi: 10.11648/j.ijls.20220501.24

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AMA Style

Chris Adomako-Kwakye, Richard Obeng Mensah. Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector. Int J Law Soc. 2022;5(1):123-133. doi: 10.11648/j.ijls.20220501.24

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@article{10.11648/j.ijls.20220501.24,
  author = {Chris Adomako-Kwakye and Richard Obeng Mensah},
  title = {Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector},
  journal = {International Journal of Law and Society},
  volume = {5},
  number = {1},
  pages = {123-133},
  doi = {10.11648/j.ijls.20220501.24},
  url = {https://doi.org/10.11648/j.ijls.20220501.24},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20220501.24},
  abstract = {Ghana, through its constitutional arrangement, practices the public ownership of natural resources. The state grants mining rights to prospective investors in the mining sector. However, the exploitation of natural resources in Ghana has had devastating effects on its mining communities including deprivation and destruction of farmlands, delayed compensation, rising cost of living, inadequate housing, youth unemployment and family disorganisation. Besides, mining communities in Ghana face a number of challenges such as the failure to incorporate in legal provisions wealth creation opportunities for local indigenes as compensation for the deprivation of their land, and conflicts that erupt between mining companies and indigenes due to deprivation of their source of income. Using the doctrinal lecgal research, this article seeks to examine the legal environment regulating investments and investor protection in Ghana’s mining sector. The paper postulates that the prevailing legal regime in Ghana’s mining sector protects investors but ignores the needs of the local communities. It reveals that the current legal regime in Ghana for development of mining communities is heavily dependant on the royalties paid to the state, which has failed to ensure adequate development in mining communities. The article argues for a paradigm shift and advocates for a balance of protection and treatment for investors and mining communities because the existing legal regime for investment gives too much to investors and very little to mining communities.},
 year = {2022}
}

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TY  - JOUR
T1  - Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector
AU  - Chris Adomako-Kwakye
AU  - Richard Obeng Mensah
Y1  - 2022/02/28
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DO  - 10.11648/j.ijls.20220501.24
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
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PB  - Science Publishing Group
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UR  - https://doi.org/10.11648/j.ijls.20220501.24
AB  - Ghana, through its constitutional arrangement, practices the public ownership of natural resources. The state grants mining rights to prospective investors in the mining sector. However, the exploitation of natural resources in Ghana has had devastating effects on its mining communities including deprivation and destruction of farmlands, delayed compensation, rising cost of living, inadequate housing, youth unemployment and family disorganisation. Besides, mining communities in Ghana face a number of challenges such as the failure to incorporate in legal provisions wealth creation opportunities for local indigenes as compensation for the deprivation of their land, and conflicts that erupt between mining companies and indigenes due to deprivation of their source of income. Using the doctrinal lecgal research, this article seeks to examine the legal environment regulating investments and investor protection in Ghana’s mining sector. The paper postulates that the prevailing legal regime in Ghana’s mining sector protects investors but ignores the needs of the local communities. It reveals that the current legal regime in Ghana for development of mining communities is heavily dependant on the royalties paid to the state, which has failed to ensure adequate development in mining communities. The article argues for a paradigm shift and advocates for a balance of protection and treatment for investors and mining communities because the existing legal regime for investment gives too much to investors and very little to mining communities.
VL  - 5
IS  - 1
ER  -

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Author Information

Chris Adomako-Kwakye

Faculty of Law, Kwame Nkrumah University of Science and Technology (KNUST), Kumasi, Ghana
Richard Obeng Mensah

Faculty of Law, Kwame Nkrumah University of Science and Technology (KNUST), Kumasi, Ghana

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APA Style

Chris Adomako-Kwakye, Richard Obeng Mensah. (2022). Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector. International Journal of Law and Society, 5(1), 123-133. https://doi.org/10.11648/j.ijls.20220501.24

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ACS Style

Chris Adomako-Kwakye; Richard Obeng Mensah. Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector. Int. J. Law Soc. 2022, 5(1), 123-133. doi: 10.11648/j.ijls.20220501.24

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AMA Style

Chris Adomako-Kwakye, Richard Obeng Mensah. Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector. Int J Law Soc. 2022;5(1):123-133. doi: 10.11648/j.ijls.20220501.24

Copy | Download

@article{10.11648/j.ijls.20220501.24,
  author = {Chris Adomako-Kwakye and Richard Obeng Mensah},
  title = {Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector},
  journal = {International Journal of Law and Society},
  volume = {5},
  number = {1},
  pages = {123-133},
  doi = {10.11648/j.ijls.20220501.24},
  url = {https://doi.org/10.11648/j.ijls.20220501.24},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20220501.24},
  abstract = {Ghana, through its constitutional arrangement, practices the public ownership of natural resources. The state grants mining rights to prospective investors in the mining sector. However, the exploitation of natural resources in Ghana has had devastating effects on its mining communities including deprivation and destruction of farmlands, delayed compensation, rising cost of living, inadequate housing, youth unemployment and family disorganisation. Besides, mining communities in Ghana face a number of challenges such as the failure to incorporate in legal provisions wealth creation opportunities for local indigenes as compensation for the deprivation of their land, and conflicts that erupt between mining companies and indigenes due to deprivation of their source of income. Using the doctrinal lecgal research, this article seeks to examine the legal environment regulating investments and investor protection in Ghana’s mining sector. The paper postulates that the prevailing legal regime in Ghana’s mining sector protects investors but ignores the needs of the local communities. It reveals that the current legal regime in Ghana for development of mining communities is heavily dependant on the royalties paid to the state, which has failed to ensure adequate development in mining communities. The article argues for a paradigm shift and advocates for a balance of protection and treatment for investors and mining communities because the existing legal regime for investment gives too much to investors and very little to mining communities.},
 year = {2022}
}

Copy | Download

TY  - JOUR
T1  - Too Much, Too Little: the Dilemma of Ghana’s Legal Regime for Investment in the Mining Sector
AU  - Chris Adomako-Kwakye
AU  - Richard Obeng Mensah
Y1  - 2022/02/28
PY  - 2022
N1  - https://doi.org/10.11648/j.ijls.20220501.24
DO  - 10.11648/j.ijls.20220501.24
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 123
EP  - 133
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20220501.24
AB  - Ghana, through its constitutional arrangement, practices the public ownership of natural resources. The state grants mining rights to prospective investors in the mining sector. However, the exploitation of natural resources in Ghana has had devastating effects on its mining communities including deprivation and destruction of farmlands, delayed compensation, rising cost of living, inadequate housing, youth unemployment and family disorganisation. Besides, mining communities in Ghana face a number of challenges such as the failure to incorporate in legal provisions wealth creation opportunities for local indigenes as compensation for the deprivation of their land, and conflicts that erupt between mining companies and indigenes due to deprivation of their source of income. Using the doctrinal lecgal research, this article seeks to examine the legal environment regulating investments and investor protection in Ghana’s mining sector. The paper postulates that the prevailing legal regime in Ghana’s mining sector protects investors but ignores the needs of the local communities. It reveals that the current legal regime in Ghana for development of mining communities is heavily dependant on the royalties paid to the state, which has failed to ensure adequate development in mining communities. The article argues for a paradigm shift and advocates for a balance of protection and treatment for investors and mining communities because the existing legal regime for investment gives too much to investors and very little to mining communities.
VL  - 5
IS  - 1
ER  -

Copy | Download