Response of the Minerals Commission of Ghana to the Report Titled THE COST OF GOLD Published by The Human Rights

Clinic University of Texas, School of Law

Contact Information: For further information on this document, please forward your comments and question to:

Minerals Commission
# 12 Switchback Road Residential Area, Cantonments, P.O. Box M248, Accra Ghana Phone: (233-302) 772783/ 779823/ 773053/ 771318 Facsimile: 233-302-773324 Website: www.ghana-mining.org Email: mincom@mc.ghanamining.org

March 2011
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EXECUTIVE SUMMARY
In June 2010, the Human Rights Clinic at the University of Texas, School of Law released a report entitled The Cost of Gold: Communities Affected by Mining in the Tarkwa Region of Ghana. The report identified and focused on six (6) key issues, namely: a. Lack of prior consultation and consent b. Corruption c. Inadequate compensation d. Unsafe living and working conditions e. Violence associated with mining activities f. Lack of access to justice

The Minerals Commission (the Commission) as part of its investigations into the allegations made, identified and interviewed the specific persons/groups/institutions/companies mentioned in the Report. With regards to specific allegations made against the Environmental Protection Agency (EPA) in the report, the Commission believes that the EPA would respond to those allegations in the report as an institution. LACK OF PRIOR CONSULTATION AND CONSENT With regards to the above, the Commission found that the authors of the report failed to contact the mining companies for their input or responses in respect of the alleged lack of dialogue between the companies and the community members. They also failed to contact the Commission, which is the government agency responsible for mining in Ghana, to ascertain the veracity of some of the information they received. From the investigations conducted by the Commission, it was concluded that the report also had a number of misquotes and misrepresentations. The Commission, from its investigations, found that during the operational phase, there is adequate consultation between the mining companies and the community members. In the report, a recommendation was made to the effect that the Government should provide the public with adequate prior notice with regards to applications for licences/leases and or any other mining activity that will significantly affect the community in a manner that the community understands. The Commission is of the opinion that Section 13 (2) of Act 703 deals with the involvement of the Assemblies in the provision of prior notice of applications.

CORRUPTION The Commission found that the allegations made in the report were made without any evidence to support them. The authors of the report, without conducting independent and thorough investigations into the allegations, made general statements, which are damaging to the hard-earned reputation of the chiefs. The Ghanaian culture is such that chiefs are revered, respected and held in high esteem by their people. To make such unsubstantiated allegations against them is tantamount to causing disaffection and disrespect from the very people the chiefs are expected to rule over and protect. The Commission found that although the report accused the Government of Ghana of turning a blind eye to mining companies illegal advances and dealings with local communities, there was no evidence adduced to substantiate these statements. The report also failed to state whether or not the Governments attention was ever drawn to any specific instances of alleged corrupt practices being undertaken by mining companies, to which the Government turned a blind eye. After conducting its investigations, the Commission did not find any evidence to support the allegations made in the report. The Commission therefore challenges the authors of the report to provide evidence of the alleged corrupt practices. With regards to the Ghana Extractive Industry Transparency Initiative (GEITI), the Commission concedes that at the time the report was being written, Ghana had not been designated EITI Compliant. This was through no fault of the country since Ghana had submitted the documents to the EITI Board for consideration and approval in February 2010. The fact remains that as at 19th October 2010, Ghana had been designated EITI Compliant. The Commission is of the opinion that Ghana not having been declared EITI Compliant does not mean that there is corruption within the Government of Ghana. INADEQUATE COMPENSATION The Commission found that the authors of the report misunderstood the mining law. The rights of the companies emanating from the concessions granted to them are different from the rights of the Government to compulsorily acquire land. The 1992 Constitution and the Minerals and Mining Act, 2006 (Act 703), clearly state that ownership of the land remains with the chiefs/traditional authorities/individuals. The law also states that the minerals are held in trust by the President on behalf of the people of Ghana. Contrary to the assertions made in the report, land is not compulsorily acquired by the mining companies and the landowners do not lose their title to the land. The mineral rights given to the mining companies only entitle the companies to explore and exploit minerals. When the companies conclude their mining operations, the land reverts back to the landowners. Act 703 provides that officials of the Land Valuation Division must be present during the survey of crops. The Commission is of the opinion that if both parties ensured that this is done, the misunderstandings and conflicts surrounding the payment of compensation would be drastically reduced.

The report mentioned the uneven bargaining power between the farmers and the mining companies as well as the inability to seek remedies through the judicial system. The Commission found that the law adequately provides remedies in cases of conflicts. The negotiations for compensation are carried out between the parties and where the parties fail to reach an agreement, the matter is to be referred, by either party, to the Minister. The Minister then, in consultation with the Government agency responsible for land valuation, shall determine the compensation payable. This is at the expense of the Government. There have been many instances where such persons have informed the Minister of their dissatisfaction and the Minister has intervened and determined the compensation payable by the mining companies. If either party is dissatisfied with the compensation determined by the Minister, the party is entitled to refer the matter to the High Court for review. Act 703 requires the payment of compensation regarding the deprivation of the use of land. This is a new concept which was not provided for under the repealed Minerals and Mining Law, 1986 (PNDCL 153). PNDCL 153 simply provided for the payment of compensation without stating what factors were to be taken into consideration when calculating compensation payable. Compensation for the deprivation of the use of land is a concept which is evolving and is still being streamlined to improve the adequacy of compensation. There are currently draft regulations on compensation, which address the problems and difficulties associated with the calculation and determination of compensation. In the report, it was stated that due to the inordinate delay in reviewing the LVD rates, the rates were lower than the current prevailing rates. From its investigations, the Commission found that the Land Valuation Division (LVD) is currently reviewing its rates. UNSAFE LIVING AND WORKING CONDITIONS The report made statements to the effect that mining companies often make no attempt to mitigate the harmful effect of mining, such as environmental degradation, illness and dangerous working conditions. The report stated further that mining companies make no effort to fix mistakes of their making and that there is no legal requirement under Act 703 for companies to rectify such mistakes. The Commission found that contrary to these assertions made in the report, the companies are legally obliged to observe certain terms and conditions and when they breach these terms and conditions, the companies are made to rectify such breaches by the regulatory agencies. Act 703 gives the Minister the power to grant mineral rights and further states that a mineral right is subject to the terms and conditions that are prescribed from time to time [Section 13(7)]. The reconnaissance and prospecting licences, as well as the mining leases granted to mining companies also have clauses which impose certain obligations on the mining companies. The report failed to mention that a lot of the environmental pollution is as a result of the illegal mining being undertaken in the Tarkwa area. These illegal miners do not observe the environmental rules and regulations, which cause a lot of damage to the environment and water bodies. The Government and the security agencies are aware of these operations and concerted efforts are being made to curb the operations of the illegal miners, which has become endemic. The Government, with the help of her Development Partners, is implementing the Natural Resources and Environmental Governance (NREG)

programme to mitigate some of these impacts. Under the programme, several areas are being geologically explored to find suitable grounds for small scale miners. The programme is also supporting the manufacture of the new equipment designed for gold extraction without the use of mercury. This will contribute to reducing pollution from mercury fumes among others. The Government is willing to receive support from other donor agencies to help address the illegal mining challenge. The Commission also found that there are prevalent diseases, such as upper respiratory tract infections and tuberculosis. These diseases were mostly suffered by illegal miners. There is however no available data conclusively linking the diseases to mining operations of the large scale mining companies. The report stated that mining companies are required by Act 703 to give preference to community members for employment opportunities. The authors of the report misread and misunderstood the provision. Act 703 rather provides that the holder of the mineral right shall give preference in employment to citizens to the maximum extent possible and consistent with safety, efficiency and economy [Section 105(2)]. There is a localization policy enshrined in Act 703. The Act is quite explicit on the recruitment and training of Ghanaians, with the intention that after a period, the Ghanaians will replace their foreign counterparts. This provision is being strictly applied and the mining companies are obliged to submit training programmes, with specific takeover dates, which programmes are reviewed and subsequently approved by the Commission. The mining companies have laid down processes and procedures on the employment of community members. With regards to the spillage of cyanide, the Commission anticipates that the Environmental and Protection Agency (EPA) would expatiate on the spillage, which occurred in Suman in October 2001, in its response to the report. The Commission is of the opinion that no operating mine will intentionally cause the spillage of cyanide. Spillages occur due to many and varied factors; some human, some due to defective design among others. The mines have emergency response plans in dealing with mine disasters, including cyanide and chemical spills. VIOLENCE ASSOCIATED WITH MINING The Commission, during its investigations, found that there were indeed demonstrations against some of the mining companies, and that police and military patrols were present to bring the situation under control. During some of the demonstrations, scuffles ensued between the demonstrators and the security personnel, which led to injuries. The Commission also found that the presence of the military and the police was as a result of a rise in robberies and crime, and not upon the invitation or request of the mining companies. LACK OF ACCESS TO JUSTICE The report stated that the community members face a lot of challenges due to their illiteracy and lack of knowledge. The community members, according to the report do not know when their rights are being violated because they do not know their rights. It added that it is the Governments responsibility to disseminate information in a manner which is accessible and informative to the community members. The report stated further that there are insufficient procedural remedies afforded to land owners. With 5

respect to the Government, the report said that the Government did not effectuate periodic checks on mining companies and added that there was no law in place requiring governmental agencies to make visits to mining sites. The Commission admits that it is possible that not every single person in communities affected by mining knows his/her rights and is aware of the mining laws and regulations. The Commission concedes also that it is responsible for educating the people on the mining laws, the effects and impact of mining on communities as well as on the rights of the community members. Prior to the passage of Act 703, the Commission organized a number of stakeholders workshops, which were attended by all manner of persons and institutions, including chiefs, traditional authorities as well as representatives of the Assemblies. Although this to a large extent proved successful, it is possible that the information received did not trickle down to all the community members and more needs to be done to ensure that adequate information on the mining laws and the rights of owners/lawful occupiers is disseminated to as many community members as possible. There is however a large portion of community members who know their rights and who engage the companies in discussions for compensation, resettlement and developmental projects for the communities. It is also knowledge of their rights which drives community members to partake in demonstrations as well as lodge complaints at the Ministry responsible for mines and the Commission. As stated in the report, some community members and associations have taken court action against some mining companies. In conclusion, the Commission is of the opinion that although the report contained some genuine findings and legitimate recommendations, the report on the whole did not reflect the true state of affairs of the effect of mining in Tarkwa. The authors of the report made damning allegations of corruption against the chiefs, the mining companies and the authorities responsible for mining without providing a shred of evidence to substantiate the allegations. The persons named in the report, to which certain statements were attributed, when contacted claimed that the report misrepresented and misquoted what they said to the authors. The authors also misinterpreted provisions of the mining law and drew conclusions which have no legal backing.

INTRODUCTION
In June 2010, the Human Rights Clinic at the University of Texas, School of Law released a report entitled The Cost of Gold: Communities Affected by Mining in the Tarkwa Region of Ghana. The Commission, in conducting its investigations into the allegations made in the report adopted the following as a general strategy for reviewing the report: (a) Review the methodology adopted in the Report (b) Assess the validity of the data obtained and applied in the Report (c) Assess the accuracy of the analysis developed in the Report and the soundness of the findings in the Report. The Commission, in carrying out the above-mentioned actions, identified the specific persons/groups/institutions/companies mentioned in the Report and developed a questionnaire, which was used to interview the parties concerned. The Report identified and focused on six (6) key issues, namely: a. Lack of prior consultation and consent b. Corruption c. Inadequate compensation d. Unsafe living and working conditions e. Violence associated with mining activities f. Lack of access to justice

The Commission identified the following individuals/groups/institutions/companies that were mentioned under each of the key issues as follows: a. Lack of prior consultation and consent Anglogold Ashanti Induapriem Mine James Sarpong (Farmer at Teberebie) Goldfields Ghana Limited Golden Star Resources Abena Koale (Farmer at Abekoase)

Chief Molobah Nyamikeh (Abekoase) Tarkwa Nsuaem Municipal Assembly Prestea-Huni Valley District Assembly

b. Corruption Mr. Larbi (Center for Public Interest Law) Mavies Mieza (Space FM, Tarkwa) Extractive Industries Transparency Initiative (EITI) Prestea-Huni Valley District Assembly Traditional Authorities

c. Inadequate Compensation Anglogold Ashanti Iduapriem Mine Mr. Yeboah (Land Valuation Division Staff) Land Valuation Division of the Lands Commission Environmental Protection Agency Akua Wonkye (Farmer at Atta Ne Atta)

d. Unsafe Living and Working Conditions Environmental Protection Agency Goldfields Ghana Limited Anglogold Ashanti Induapriem Mine Doctors in Government Medical Facilities at Tarkwa and Prestea

e. Violence Associated with Mining Prestea-Huni Valley District Assembly Police Command, Tarkwa Anglogold Ashanti Iduapriem Mine Golden Star (Bogoso/Prestea)

 f.

Anthony Baidoo (Teberebie) Goldfields Ghana Limited Municipal Assembly, Tarkwa-Nsuaem

Lack of Access to Justice Mr. Yeboah (Land Valuation Division staff) Environmental Protection Agency Prestea-Huni Valley District Assembly

INTERVIEWS & ANALYSIS

The following are the interviews conducted and the subsequent analysis made by the Committee on the key issues raised in the report:

1. LACK OF PRIOR CONSULTATION

a) Anglogold Ashanti (Iduapriem) Limited In the report, it was stated that one James Sarpong, a farmer in Teberebie had his farmland and personal property seized by Anglogold, in conjunction with security agencies. The report added that James Sarpong has now sued Anglogold on behalf of Teberebie Concerned Farmers Association, on the grounds that the initial seizure of his farmland by Anglogold was done without prior consultation. When consulted on this issue, Anglogold stated that James Sarpong was one of the farmers affected by waste dump work. According to the company, Sarpong, unlike the other affected farmers rejected the compensation rate applied by the company. All the other farmers were paid off, except James Sarpong, who refused to vacate his farmland. According to the company, the District Assembly as well as the Environmental Protection Agency (EPA) became involved in the matter. The company met James Sarpong on a number of occasions and one such occasion was on 20th December 2006. It was agreed that for safety reasons, James Sarpong should vacate his farmland and find a suitable accommodation, at the expense of the company while he negotiated his compensation with the company. He was given two weeks to do this exercise but he never reverted back to the company on this issue. The dispute over the rate of compensation was also discussed at various meetings held by the Monitory Advisory Group (MAG) in 2007, 2008 and 2009 in an attempt to resolve the matter once and for all. The MAG is a monitoring/advisory body that meets every six (6) months. Its membership includes the convener (an independent expert nominated and approved by all the members), representatives from the company, Environmental Protection Agency (EPA), the District Assembly, the Assemblyman, two (2) community

representatives (selected by the communities) as well as a representative from Wassa Association of Communities Affected by Mining (WACAM).

Picture 1: A meeting between Management of AngloGold Ashanti (Iduapriem) Mine and officials of the Commission According to the company, and evidenced from the minutes of a meeting held by MAG on 4 th June 2009, members agreed that the continued presence of James Sarpong at the toe of the waste dump was of safety concern. At the time, James Sarpong had joined the Teberebie Concerned Farmers Association, which had instituted a court action against Anglogold. For fear of being in contempt of court, members agreed that the company should make an application to the judge to eject James Sarpong. The company stated that it made the application and obtained a court order for the ejection of James Sarpong with a proviso that the police had to be present and an inventory of the personal property of James Sarpong had to be taken. The company concluded that to date James Sarpong has rejected the compensation package offered to him by Anglogold and since the matter was currently pending in court, the company had to await the outcome of the court case. In the report also, it was stated that although a staff of the EPA claimed that the EPA had held public hearings, no community member in Tarkwa could attest to that fact. In the said report it was stated further that in the unlikely event that public hearings were held, it was very likely that the community would be unable to render meaningful contributions due to ignorance and lack of education.

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When contacted on the public hearing issue, Anglogold stated that a public hearing was held on 27th August 2010 in Ajopa. At this hearing, issues bordering on compensation, sources of water and the provision of electricity were raised by the communities. This is contained in a letter from the EPA to the company dated 20th September 2010. On the issue of how many public hearings the company has participated in, the company explained that it was in existence and obtained the mining lease prior to the EPA regulations (L.I. 1652) coming into force in June 1999, which required public hearings to be held. The report stated further that the mining companies refuse to dialogue with community members during their operations. It added that the companies are not willing to discuss issues and concerns raised by the communities. Contrary to this assertion, Anglogold, provided evidence of meetings held with communities over various issues affecting the communities, such as health, education, contract jobs, sources of water and many other issues. Anglogold, in an attempt to deal with all issues, has introduced what it calls a Community Action Plan (CAP). The company has devised a structure to help it monitor and handle issues affected the communities. There is the Community Consultative Committee (CCC), which meets monthly. The CCC focuses on the day-to-day implementation of the CAP or other issues of interest. Members include the Head of the Community, youth representative, women representative and others the community might decide to include. There is also the Community Liason Group (CLG) which meets once every three (3) months and provides the forum for experience sharing and discussion of issues that affect several or all the communities. Members include one representative from each CCC, one representative from WACAM and one representative from the company. According to the company, minutes of meetings held by the CLG are made available to all the stakeholders. The final committee is the MAG, which as stated earlier, is a monitoring/advisory body and meets every six (6) months. b) James Sarpong (Farmer at Teberebie) In the report, it was stated that Mr. James Sarpongs farmland was destroyed and his personal property seized by AngloGold Ashanti and that this was done in conjunction with the security agencies. The report further states that Mr. Sarpong is now supported by WACAM and has sued the company on behalf of the Teberebie Concerned Farmers Association, claiming that the initial seizure of his farmland by the Company in 2003 was executed without prior consultation. The Commission found out that there was prior consultation before the initial seizure of the farmland of Mr. Sarpong by the company. Mr. Sarpong made it clear to officials of the Commission that his main problem with the company stemmed from the fact that in 2003, after the company came to enumerate crops on the land, payment was not forthcoming. Besides, different mechanisms were used in the determination of the compensation rates. Whereas head count method was used in the determination of compensation payable to the Kristo Asafo farmers, the acreage method was used to determine his, a situation he found unacceptable. It is obvious that the company held series of meetings with Mr. Sarpong and other people whose property were affected by the operations of the Company and needed to be compensated. Mr. Sarpong refused to sign for an amount of GH10,200 being compensation for his farm and hamlet after

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assessment of his crops and structure. According to Mr. Sarpong, he refused the amount because the compensation being offered was inadequate.

Picture 2: An interaction between officials of the Commission and James Sarpong, Anthony Baidoo and Emelia Amoateng c) Abena Koale (Farmer at Abekoase) In the report, it was stated that Abena Koale, a 40-year old farmer who had been in the Abekoase community for almost her entire life, intimated that Gold Fields Ghana only met her the day it possessed her land in 2000 merely to inform her that she had to leave and that there was no prior notice or consultation prior to the use of her land. She is also quoted to have blamed the community affairs officer of the company for her predicament, stating that as a Ghanaian outside of the community, he did not really look after the communitys best interest. On 20th January 2011 officials of the Commission visited Madam Koale at Abekoase to ascertain the veracity or otherwise of the statements attributed to her in the report. Madam Koale made it clear to the officials that she did not own any land in the area and therefore could not possibly have made such pronouncements. According to her, it was her mother who had land in the area. When the officials of the Commission read to her what had been attributed to her in the report, she stated that she had been misinterpreted and that the person who accompanied the authors of the report did not understand 12

what she said. According to her, she rather spoke about discoloration of their drinking water, lack of employment, the fact that she preferred to be resettled and that she received compensation which was inadequate. She also spoke about alternative livelihood programme embarked upon through the assistance of the company. She reiterated finally that she did not tell the authors of the report that it was the day she met the company in 2000 that she was requested to vacate the land.

Picture 3: Madam Abena Koale explaining what she said to the Human Right Clinic to officials of the Commission d) Chief Molobah Nyamikeh (Abekoase Chief) In the report, it was stated that according to Chief Molobah Nyamikeh, while mining companies have started consulting and co-operating with the community, they still hold the upper hand in negotiations. The Chief is also reported to have said that he felt that farmers needed to be given more notice about meetings with the company concerning matters tied to mining activity. When the officials of the Commission visited the Chief at his palace on 20th January 2011, the Chief made it clear to the officials of the Commission that he never made a general statement to that effect. According to him, he talked about a small portion of land just at a stone throw from the outskirts of the village, on which the company undertook a project without informing him. He emphasized that it was not always the case and that on most occasions, he is informed. According to him, the company informs him if there is the need to engage on any land. He would then inform the farmers to be affected. A 13

bargaining process begins leading to an agreed compensation to be paid. Payments are made before the company starts work on the property. He further stated that he is a member of the Community Consultative Committee (CCC) comprising community leaders, assemblymen/women, the municipal assembly, public relation officer of the company, the media, agricultural and health officers within the area. According to the Chief, so far, he is satisfied with the performance of the CCC. The Chief further stated that he has never attended any public hearing organized by the company and the EPA. He stated that there is cordial relationship between the company and the Stool. The Company has provided them with hand dug wells and sometimes a Contractor is engaged by the company to service or treat the wells to ensure that the water is potable. According to him, whenever the Community identifies any problem with the wells and the companys attention is drawn to it, the company ensures that the problem is resolved. e) Gold Fields Ghana Limited With regards to the issue of public hearings, Gold Fields stated that a public hearing was held in Pepesa on 27th August 2010. With regards to the statement in the report that the mining companies refuse to dialogue with community members during their operations, Gold Fields provided minutes of some of the meetings held by the Tarkwa Mine Consultative Committee in 2008, 2009 and 2010. The membership includes representatives from the company, chiefs, representatives from radio stations, municipal assembly, district assembly, EPA, Ghana Health Service, Ghana Education Service, opinion leaders, Assembly men and Assembly women. Issues raised at such meetings included the tarring, rehabilitation and maintenance of roads, the provision of boreholes, health services as well as developmental projects being undertaken by the company.

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Picture 4: Meeting between officials of the Commission and some staff members of the Community Affairs Department of GoldFields Ghana Limited Tarkwa f) Tarkwa Nsuaem Municipal Assembly

Mr. Abeku Gachie, the Deputy Municipal Co-ordinating Director, who represented the Municipal Chief Executive, stated that the Assembly over the years has not received any complaints from the communities regarding lack of public hearings. According to him, whenever there is an application for a mineral right, the Commission informs the Assembly of this. The Assembly in turn informs the traditional rulers who are to notify their respective communities. The Assembly could not cite any instance where a mineral right was granted to a company without the knowledge or consent of the Assembly. The Assembly was also not aware of any instances where the mining companies used violent means to disperse demonstrators. According to Mr. Gachie, the Assembly has representatives on both Gold Fields and Anglogolds Community Consultative Committees, where diverse issues are tabled and addressed by all the stakeholders.

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g) Prestea-Huni Valley District Assembly The District Chief Executive (DCE), Hon. Robert Wisdom Cudjoe, explained that there were very few public hearings held in the district because the district was a newly established one and most of the companies were already in existence before the creation of the district. However, there was a public hearing held at Pepesa regarding the operations of Gold Fields. According to the DCE, communication was clear and the community members understood everything that was discussed. The community members were also given the opportunity to voice out their personal grievances and complaints, which the company was directed to deal with. The DCE also stated that the District Assembly is always involved in all the consultative committees of the mining companies. The Assembly is represented mostly by the District Co-ordinating Director at such meetings. According to the DCE, the consultations between the communities and the companies were reasonable, although they could be improved upon. The DCE noted however that in many instances, when the communities have concerns or issues with the companies, the Assembly is not informed at the early stages. When however the negotiations disintegrate and the issues drag, the Assembly is then approached to intervene. According to the DCE, the Assembly does its best to protect the rights of its people and intervenes in a lot of matters on behalf of the communities, which has to a large extent, led to a peaceful co-existence between the communities and the mining companies.

Picture 5: An interaction between officials of the Commission and the Prestea-Huni Valley District Chief Executive and his Coordinating Director

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h) Golden Star Resources On the issue of lack of dialogue between the mining companies and the communities, Golden Star Resources informed the officials of the Commission that it has Community Consultative Committees (CCC) in all the affected communities. These CCCs meet regularly to discuss and address various pertinent issues. Membership includes chiefs, District Assembly, Municipal Assembly, opinion leader, Assembly men and Assembly women, youth representatives and Urban Council representatives.

Picture 6: Officials of the Commission met the General Mines Manager of Golden Star Resources

2)

CORRUPTION

The report stated that given the nature of mining, which involves a multi-million dollar operation, there are many opportunities for bribery. The report proceeds to quote one farmer, only referred to as Matthias who says that the chiefs are in bed with the mining companies, without any evidence to support this statement. The report also repeats allegations of chiefs receiving financial support from mining companies in order to obtain support from the communities. An example was given of a chiefs son whose study abroad is being financed by a mining company. One Mavis Meiza, a reporter at Space FM Radio was quoted in the report as saying that chiefs and elders are paid to hide things regarding mining projects. When contacted, Mavis Meiza denied having made such a statement. She said she never contributed to any research or discussion at which she made

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such a statement. According to her she only informed the authors of the report that on a visit to the Wassa Amenfi area with WACAM, she was approached by some community members who stated that their source of drinking water had been polluted by the operations of illegal miners (galamsey). The report goes on to state that the perception is that the bribes extend further than the chiefs. The report quotes a nameless community member as saying that the companies bribe authorities throughout the chain of mining and this includes EPA. When contacted on this issue, the District Chief Executive (DCE) of Prestea-Huni Valley District Assembly remarked that the Assembly is often accused of having taken bribes from the mining companies when the Assembly is unable to satisfy the needs of community members. The DCE explained that sometimes, community members submitted complaints of lack of compensation and the Assembly takes this up with the mentioned mining company. The Assembly however operates within the law, and if upon investigations, it is concluded that the complaints are unfounded, the Assembly cannot compel the mining companies to pay compensation. When this happens, the community members accuse the DCE of having been bribed by the mining companies. Ghana Extractive Industry Transparency Initiative (GHEITI) In the report, it was stated that in March 2010, Ghana failed to meet the deadline to complete validation and garner acceptance. The officials of the Commission interacted with the GHEITI Coordinator, Mr. Franklin Ashiadey, who stated that in February 2010, GHEITI Secretariat presented a report to the EITI Board for consideration. The Board could not find time to review the document until September 2010. According to Mr. Ashiadey, the EITI Board designated Ghana as EITI Compliant at a meeting in Dar-es-Salaam, Tanzania on 19th October, 2010.

3)

INADEQUATE COMPENSATION

In the report, it was stated that Anglogold, in calculating compensation payable to one Akua Wonkye, did not distinguish between her crops. According to the report, her more valuable crops, such as plantains and cocoa (which have a higher profit margin) were given the same compensation as her less lucrative ones, such as cassava. a) Akua Wonkye (Farmer at Atta Ne Atta) On 19th January 2011 the officials of the Commission visited Madam Akua Wonkye to find out if she made the statement to the effect that her more valuable crops, such as plantains and cocoa, which have a higher profit margin at the market, were given the same compensation as her less lucrative ones, such as cassava. When the officials of the Commission met Madam Wonkye, she stated that she had two farms. She said that she received compensation for the farm that was closest to her residence. Her bone of contention was with the other farm which was located much further from her current residence due to her relocation when the company resettled her community. According to her, due to her old age, she was unable to walk to the farm, so she asked the company to take over her farm and pay her compensation.

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The company however told her that since it did not require her farm for its mining activities, the company could not pay her any compensation. Madam Wonkye admitted that the company had not destroyed anything on the farm.

Picture 7: Madam Akua Wonkye in a chat with officials of the Commission

b) Mr. Peter Yeboah of the Land Valuation Division of the Lands Commission In the report, Mr. Peter Yeboah was referred to as a worker of Land Valuation Board, who remarked that companies would only speak in non-hostile communities. He was also reported to have charged that the Government fails to check whether the mining Companies are complying with legislations designed to protect communities. The report further stated that according to Mr. Yeboah, the Land Valuation Board (LVB) rates tables are not only hard to find, but also difficult to comprehend. On 19th January 2011 the officials of the Commission interviewed Mr. Peter Yeboah who stated that he granted the interview to the authors of the report in his personal capacity and not on behalf of the Land Valuation Division (LVD). He stated that he told the authors of the report that he had attended two public hearings one at Prestea and the other at Kubekro. According to him, whereas the Prestea public hearing was chaotic, the one held at Kubekro was quite peaceful. He stated that he attended those public hearings when he was working as a volunteer with WACAM.

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On the enforcement of the law, he confirmed talking about the weak enforcement of the law and cited as an example, the 2001 cyanide spillage at Abekoase. According to him this resulted in a conflict between the company and the communities. On the issue of compensation rates, he said that the LVD rates are not made public and that people find it difficult to understand the basis for the determination of the rates. He further said that it takes some time for the LVD to review the rates. Mr. Peter Yeboah submitted a written statement to the Commission, in which he stated what in his view, was the discussion he had with the authors. In the statement, he agreed that he echoed the sentiment to the effect that some cases between some companies and the communities had been going through adjournments due to absence of witnesses of the companies during court sittings. Mr. Peter Yeboah said that the report nearly embarrassed him since when the authors of the report approached him, he was not informed about what they were going to use the information gathered from him for. According to him, if he had been informed properly, he would have gathered information to buttress what he said. He further stated that his cardinal aim for eliciting the information to the authors was to enhance the community-company relationship. Mr. Peter Yeboah told the officials of the Commission that he had forgotten most of the things he said to the authors and that if he had gotten a copy of the report earlier, he would have been able to cast his mind back to recall what precisely he said. Although Mr. Peter Yeboah stated that the authors misquoted him, he could not tell the officials of the Commission what exactly he was misquoted on.

Picture 8: Mr. Peter Yeboah explaining his interaction with the Human Right Clinic to the officials of the Commission

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c) Director of Land Valuation Division of the Lands Commission On 7th February 2011 the officials of the Commisson held a meeting with Dr. Winfred K. Anim-Odame, Director, Land Valuation Division of the Land Commission (LVD) to seek his views on the comments made about LVD in the report with respect to mining operations in the Tarkwa District. First and foremost, the Director made it absolutely clear that although Mr. Yeboah works with the LVD, he does not have the mandate to speak on valuation issues. He explained that Mr. Yeboah works with the rating valuation unit and does ratings for the Assemblies. According to the Director, those who have the authority to speak on valuation issues are those with the general valuation wing of the LVD. Mr. Yeboah does not fall in that category and has no mandate whatsoever to speak on valuation issues on behalf of the Division. The Director therefore asked the officials of the Commission to ignore the statements attributed to Mr. Yeboah. According to the Director, the LVD is mandated by Act 703 [Section 72(5)] to participate in the survey of affected crops and other property. The LVD has to be involved in the survey to know beforehand the properties that will be affected. However, the Division does not have the mandate to be involved in the negotiations to determine compensation rates payable. The Division is called upon to intervene if there is a stalemate between the company and the landowner/lawful occupier. He emphasized that if there is any official of LVD participating in any negotiation between the companies and affected surface right owners, then, certainly, that is wrong. The Director stated that in determining the rates, the LVD does not use arithmetic. According to the Director, LVD carries out estimates. Due to this, the rates are only made available to professionals who have the requisite skills to apply the rates and not to the general public. This is to prevent instances where unqualified persons might misapply the rates. In that regard he advised that mining companies and the farmers should employ the services of valuers during their negotiations. In the report, it was stated that due to the inordinate delay in reviewing the LVD rates, the rates were lower than the current prevailing rates. In response to this, the Director stated that the rates may not be high but they are reasonable due to governmental interest. The rates are therefore in a form of a range. The Director added that since 2002 however, the Division, in consultation with the Ministry of Agriculture and the Cocoa Research Institute, has reviewed the rates of some crops. For example, rates for cocoa and teak trees were reviewed in 2008 and 2010 respectively. He attributed capacity deficiency as the main reason for the Divisions inability to review the rates of all crops. He gave the assurance that by the end of the first quarter of 2011, rates of all crops would have been reviewed. The Director stated that the Division is moving away from the traditional way of undertaking valuation (i.e. the counting method). The Division intends to employ the Discounted Cash Flow or Investment approach to determine compensation rates. The Commission found out that most of the mining companies have Compensation Committees, whose membership include representatives of the farmers, the mining companies, chiefs, Assembly men or Assembly women, independent valuers and representatives from Land Valuation Division. These 21

Committees take part in the enumeration of crops and structures on lands to be affected by mining. This enumeration exercise includes the determination of the crop rates to be used for the payment of the crops enumerated on the affected farms. The report mentioned the high level of unemployment in the Tarkwa and added that since many of the community members are illiterates, they are unable to find work with the mines. The officials of the Commission were informed by the mining companies that some of the jobs require skills. When there are job openings, the companies advertise and when persons in the catchment areas apply, they are given preferential treatment, as long as they have the requisite skills. Other companies, like Gold Fields Ghana Limited, have a community data base from which they short list potential employees. Some of the companies have also developed training programmes whereby they train the community members and subsequently employ them. With regards to unskilled labour, some of the companies, like Anglogold Ashanti Induapriem Mine, engage in a rotation system, whereby each community takes its turn in providing unskilled labour. This is usually done through the leaders of the communities.

4)
a)

UNSAFE LIVING AND WORKING CONDITIONS

Gold Fields Ghana Limited

In the report, it was indicated that in October 2001 a dam burst near Tarkwa Gold Mine operated by Gold Fields and unleashed thousands of cubic meters of toxic waste into the Astum River contaminating it with cyanide and various toxic heavy metals. The Commission found out that there was no dam burst. Rather, there was heavy rainfall which caused earth slide on the edge of a Heap Leach Pad. The moving soil pushed a pipe carrying solution from the ponds to the pads and broke it at the coupling joint. The solution escaped from the pipe and ran down the access ramp into the storm water ditch where it escaped to the environment through the culvert. The affected River was Suman and not Astum as indicated in the report. As a result of the spillage, a Committee, established by the then Minister responsible for mines, asked the Company to establish a Community Development and Compensation Trust Fund. In a letter dated Thursday, 29th November 2001, Gold Fields expressed a desire to establish the above mentioned fund to aid those who might have been adversely impacted by the spill of leach solutions from the Companys Tarkwa operation. Gold Fields, in the said letter, offered to deposit GH1,000,000,000.00 into the Ghana Commercial Bank in the name of the Huniso Abekoase Fund. The above mentioned letter was addressed to the Ag. Executive Director of the Environmental Protection Agency. Evidence of payments and execution of projects were made available to the Commission. Corrective actions undertaken when the spillage occurred have been captured in a report submitted to the officials of the Commission by Gold Fields. The officials of the Commission were also briefed on the companys emergency response plans in dealing with mine disasters, including cyanide and chemical spills.

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In the report, it was stated that one of the negative impacts of mining is the unemployment of the community members, following the loss of their farmlands. The Commission found out that the companies have laid down processes and procedures on the employment of community members. Gold Fields Ghana Limited submitted forms to the Commission, attesting to the fact that they indeed have the processes and procedures in place. The form included contractor recruitment procedure. Gold Fields Ghana Limited further submitted to the Commission statistics showing community members engaged by the company from the communities within its operational jurisdiction. Statistics of community members who have applied for employment from the various communities were also made available to the Commission. Contrary to the assertion in the report that even when farmers do not lose their lands, there is the possibility of farming not being permitted on those lands, the officials of the Commission were informed by Gold Fields that at Ajopa, for example, inhabitants are allowed to undertake subsistence farming but not commercial. The officials of the Commission were informed further that in a situation where subsistence farming would be allowed, the company would give the farmers three to six months notice of the companys intention to permit the farmers to engage in subsistence farming. If such a restriction is not imposed, the farmers would create problems for the mineral right holder. In the report, it was stated that the three boreholes drilled by AngloGold for the Teberebie community had broken down. When the officials of the Commission raised the issue of the boreholes, it was informed that all the three were working but one of them was not potable. The company however, stated that there is an on-going project to connect the community to the Bonsa pipe borne water system. In addition, during the 2009/10 period, the company trained some community members to enable them repair the boreholes themselves, in the event that they break down. The objective is to ensure sustainability. b) Diseases associated with mining - Doctors in Government medical facilities

The report associated many health problems suffered by community members to the operations of mining companies. The report extensively quoted community members who attributed skin rashes, dizziness and headaches to air pollution and blasting. The report made a statement that doctors in Obuasi Government medical facilities acknowledged that some diseases are attributable to mining. The authors of the report failed to mention which doctors in particular made this statement or what specific diseases are attributable to mining. The officials of the Commission went further than the authors of the report did, and interviewed one Dr. Mahamadu Mbiniwaya of the Prestea Government Hospital. According to the doctor, the inhalation of a considerable amount of dust could lead to upper respiratory tract infections. He added that skin irritations are as a result of polluted streams and rivers. He however attributed the polluted streams to the operations of illegal miners in the area. He added that most of the horrific wounds and diseases are suffered by the illegal miners because these miners do not use protective gear and do not observe sound environmental and mining practices. The doctor said that a lot of the illegal miners suffer from tuberculosis, upper respiratory tract infections and severe trauma injuries. The doctor noted that most

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of the diseases and illnesses the hospital treated were from the illegal miners and not from the communities or from workers of the large scale mining companies.

Picture 9: An interaction between officials of the Commission and Dr. Mahamadu Mbiniwaya of the Prestea Government Hospital

Three (3) doctors at the Tarkwa Government Hospital were also interviewed on this issue, namely Dr. Jack Galley, Dr. Ebenezer Acquah and Dr. Adam Boadi. The doctors stated that there is no concrete medical evidence directly linking diseases to mining activities. The doctors confirmed the statement of Dr. Mahamadu and stated that tuberculosis, though rampant, was suffered mostly by illegal miners and not by community members due to mining activities of the large scale mining companies. The doctors also stated that they have never received any cases of poisoning as a result of any cyanide spillages. The doctors mentioned trauma as another illness prevalent with illegal miners. The doctors at the Tarkwa Government Hospital noted that they have had cases of upper respiratory tract infections, such as silicosis, which is linked to dust inhalation over a period of time. They explained that this illness is seasonal and is rampant particularly during the dry season. The doctors added that skin diseases may be caused by the quality of water, which might differ from community to community. According to the doctors, scientifically, there is no research which conclusively links the diseases mentioned in the report to mining activities. The hospital does not have any data available to support the assertion that many of the diseases are caused by mining activities.

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Picture 10: Two of the Doctors at Tarkwa Government Hospital and two of the officials of the Commission

5)

VIOLENCE ASSOCIATED WITH MINING

According to the authors of the report, all mining companies, in addition to their own private security, utilize state security personnel to protect their concessions. The report stated that sometimes these state security personnel applied violent and forceful means to terminate demonstrations, resulting in loss of lives, injuries and terror. The report went further to state that Anglogold once issued a statement that sometimes police functions are necessary. The company added that it had occasionally called for military assistance out of desperation due to violent attacks on some of its employees by artisanal miners. When contacted, Anglogold confirmed this and explained that sometimes the presence of the police and military is necessary on site to escort and support bullion shipment. The company added that sometimes the police was used to protect explosives magazines. The police were also sometimes invited by the company to conduct investigations into incidents of theft at the site. With particular reference to an incident that occurred on 2nd February 2006, in which one Anthony Baidoo was injured, the company explained that while demonstrating against a new bypass that had been created for the farmers, the demonstrators blocked the main access road to the mine. According to the company, there was a special unit made up of the police and military known as Operation Calm Life, which was already on patrol in the town, got wind of the demonstration and came to the scene. Operation Calm Life is a collaboration between the District Assembly and the Regional Security Council

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and is made up of the police and military, to curb the high spate of robberies and protect people and property in the municipality. The Commission was given a letter written by the company and addressed to the Inspectorate Division of the Commission, in which the company stated that when the police and military arrived on the scene, there was a scuffle and one soldiers gun accidentally went off and the stray bullet hit Anthony Baidoo on his right upper thigh. Anthony Baidoo was subsequently treated, but has been unable to work due to partial paralysis. According to Anglogold, and from the records made available to the Commission, Anthony Baidoo was receiving a monthly allowance of GHc100 until June 2010, when the allowance was increased to GHc150. ASP Nelson Asomaning, the Divisional Crime Officer at the Tarkwa Divisional Police Headquarters explained that the only instance where the police appears and disperses or disrupts demonstrations is when the police receives information of unauthorized demonstrations. This is because the law requires that any group of persons who would like to embark on a demonstration needs to inform the police and obtain permission before embarking on the demonstration. He stated further that there may be occasional violent incidents associated with demonstrations, but these usually occur when the demonstrators use excessive force and engage in scuffles with the police. He explained further that sometimes during demonstrations, the demonstrators set up road blocks on the main roads, which serve not only the mining companies but also other communities and road users. Such road blocks cause a lot of inconvenience to the public. In such instances therefore, the police have no option but to disperse the demonstrators as peacefully and as orderly as possible. ASP Nelson Asomaning elaborated also on the presence of police and military patrols in the municipality. He stated that this was as a result of a rise in robberies and crime, and not upon the invitation or request of the mining companies.

6)

LACK OF ACCESS TO JUSTICE

The report mentions instances where community members take mining companies to court and there are delays and frustrations on the slow pace of the cases. The report accuses mining companies of filing unnecessary motions to frustrate and delay court cases. These delays are costly to the community members who cannot afford lengthy litigation, and invariably are forced to agree to inadequate settlement. The District Chief Executive (DCE) of Prestea-Huni Valley District Assembly, in an interview, stated that sometimes the Assembly mediated in some of the disputes. He added that District Security Council (DISEC) has been engaging in alternate dispute resolution, as a way of resolving conflicts. This has been successful to a large extent and has reduced the number of demonstrations in the communities. According to the DCE, the District Assembly also has a sub-committee which goes to various districts and educates the people on their rights and interest and how best to resolve disputes. The report concludes on this issue by stating that the chiefs have failed to take up grievances and complaints of their communities, due to conflict of interest. The report alleges that since the chiefs 26

receive royalties from the operations of the mining companies, they are reluctant to support their communities against mining companies. There was also an allegation of a chief refusing to support a court action of some community members because the mining company had offered to pay the chief if he stayed out of court. The Commission, from its interviews with the chiefs and traditional authorities found out that these allegations are untrue and unsubstantiated.

FINDINGS/CONCLUSIONS
A) LACK OF PRIOR CONSULTATION If the authors of the report had taken the trouble of contacting the mining companies in respect of the alleged lack of dialogue between the companies and the community members, they would have been made aware of the various consultative committees the mining companies have established. The authors would have been made privy to the various issues discussed at such meetings. With respect to James Sarpong, consultations were indeed held, offers were made and attempts were made to settle the dispute. The matter should have been referred to the Minister for determination, in accordance with Section 73(3) of Act 703. The report therefore does not reflect precisely what transpired on the ground. The report misinterpreted and misquoted what Abena Koale said. The authors of the report gave interpretations to the statements allegedly made by Chief Molobah. These interpretations did not represent what the Chief meant and therefore the interpretations were misleading. Contrary to the assertions in the report of no public hearing having been held, according to the District Chief Executive (DCE), there was a public hearing held at Pepesa regarding the operations of Gold Fields, at which communication was clear and the community members understood everything that was discussed. The community members were also given the opportunity to voice out their personal grievances and complaints, which the company was directed to deal with.

B) CORRUPTION The allegations made in the report were made without any evidence to support them. The authors of the report, without conducting independent and thorough investigations into the allegations, printed these general statements, which are damaging to the hard-earned reputation of the chiefs. The Ghanaian culture is such that chiefs are revered, respected and held in high esteem by their people. To make such unsubstantiated allegations against them is

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tantamount to causing disaffection and disrespect from the very people the chiefs are expected to rule over and protect. Although the report accused the Government of Ghana of turning a blind eye to mining companies illegal advances and dealings with local communities, there was no evidence adduced to substantiate these spurious statements. The report also failed to state whether or not the Governments attention was ever drawn to any specific instances of alleged corrupt practices being undertaken by mining companies, to which the Government turned a blind eye. After conducting its investigations, the Commission did not find any evidence to support the allegations made in the report. The Commission therefore challenges the authors of the report to provide evidence of the alleged corrupt practices. With regards to GEITI, the Commission agrees with the authors of the report that as at the time the report was written, Ghana had not been designated EITI Compliant. This was through no fault of the country since Ghana had submitted the documents to the EITI Board for consideration and approval in February 2010. The fact remains that as at 19th October 2010, Ghana had been designated EITI Compliant. The Commission is of the opinion that the fact that Ghana had yet not been declared EITI Compliant at the time the report was written, did not mean that there was corruption within the Government of Ghana.

C) INADEQUATE COMPENSATION In the report, it was stated that Ghanas own constitution requires fair and adequate compensation when land is compulsorily taken by the State. It added that many community members who have lost their property in land concessions either have not been compensated, or have been inadequately compensated for their losses. The report kept making reference to land concessions and equated the concessions given to mining companies to instances when the Government compulsorily acquires land. The authors of the report misunderstood the mining law. The rights of the companies emanating from the concessions granted to them are different from the rights of the Government to compulsorily acquire land. The 1992 Constitution and the Minerals and Mining Act, 2006 (Act 703), clearly state that ownership of the land remains with the chiefs/traditional authorities/individuals. The law also states that the minerals are held in trust by the President on behalf of the people of Ghana. This means that the land is not compulsorily acquired and the landowners do not lose their title to the land. The mineral rights given to the mining companies only entitle the companies to explore and exploit minerals. The companies do not own the land. The concessions given are mining concessions. This is why the calculation of the compensation to be paid includes not only the crops and buildings found on the land affected but also includes deprivation of use of the land. When the companies conclude their mining operations, the land reverts back to the landowners.

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The report stated that Act 703 requires surveys of crops should be done in the presence of the land owner/lawful occupier, the mining company and an officer of the Government agency responsible for land valuation. Act 703 also requires a claim for compensation by the owner/lawful occupier to be copied to the Minister and the Government agency responsible for land valuation. It is incumbent therefore on the parties, including the farmers to copy/inform the Minister and Land Valuation Division of the Lands Commission of any claims to compensation. It is also incumbent on both parties to ensure that an officer from the Land Valuation Division is present during the survey of the crops. The Commission finds that if both parties ensure that this is done, the misunderstandings and conflicts surrounding the payment of compensation would be drastically reduced.

The report mentioned the uneven bargaining power between the farmers and the mining companies as well as the inability to seek remedies through the judicial system. The Commission finds that the law adequately provides remedies in cases of conflicts. The negotiations for compensation are carried out between the parties and where the parties fail to reach an agreement, the matter is to be referred, by either party, to the Minister. The Minister then, in consultation with the Government agency responsible for land valuation, shall determine the compensation payable. This is at the expense of the Government. There have been many instances where such persons have informed the Minister of their dissatisfaction and the Minister has intervened and determined the compensation payable by the mining companies. If either party is dissatisfied with the compensation determined by the Minister, the party is entitled to refer the matter to the High Court for review. Although the law makes provision for the parties to refer the matter to the courts, the first point of call, when the parties cannot reach an agreement, should be to the Minister responsible for mines. This is less costly and produces speedy results, as compared to the law courts.

Act 703 requires the payment of compensation regarding the deprivation of the use of land. This is a new concept which was not provided for under the repealed Minerals and Mining Law, 1986 (PNDCL 153). It is a concept which is evolving and is still being considered. There are currently draft regulations on compensation, which address the problems and difficulties associated with compensation. In the report, it was stated that due to the inordinate delay in reviewing the LVD rates, the rates were lower than the current prevailing rates. According to the Land Valuation Division (LVD), it is currently reviewing its rates. LVD hopes to begin an annual review of its rates.

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D) UNSAFE LIVING AND WORKING CONDITIONS The report made statements to the effect that mining companies often make no attempt to mitigate the harmful effect of mining, such as environmental degradation, illness and dangerous working conditions. The report stated further that mining companies make no effort to fix mistakes of their making and that there is no legal requirement under Act 703 for companies to rectify such mistakes. The Commission finds that contrary to the above assertions made in the report, the companies are legally obliged to observe certain terms and conditions and when they breach these terms and conditions, the companies are made to rectify such breaches by the regulatory agencies. Act 703 gives the Minister the power to grant mineral rights and further states that a mineral right is subject to the terms and conditions that are prescribed from time to time [Section 13(7)]. The reconnaissance and prospecting licences, as well as the mining leases granted to mining companies have clauses which impose certain obligations on the mining companies. Particularly, Clauses 4(a) of the Reconnaissance Licences and Prospecting Licences and Clause 5(a) of Mining Leases clearly deal with the obligations of the companies. It is titled Conduct of operations and reads as follows: The company shall conduct all of its operations hereunder with due diligence, efficiency, safety and economy, in accordance with good mining practices and in a proper and workmanlike manner, observing sound technical and engineering principles, using appropriate modern and effective equipment, machinery, materials and methods, and paying particular regard to conservation of resources, reclamation of land and environmental protection generally. The report failed to mention that a lot of the environmental pollution is as a result of the illegal mining being undertaken in the Tarkwa area. These illegal miners do not observe the environmental rules and regulations, which cause a lot of damage to the environment and water bodies. The Government and the security agencies are aware of these operations and concerted efforts are being made to curb the operations of the illegal miners, which has become endemic. The Government, with the help of her Development Partners, is implementing the Natural Resources and Environmental Governance (NREG) programme to mitigate some of these impacts. Under the programme, several areas are being geologically explored to find suitable grounds for small scale miners. The programme is also supporting the manufacture of the new equipment designed for gold extraction without the use of mercury. This will contribute to reducing pollution from mercury fumes among others. The Government is willing to receive support from other donor agencies to help address the illegal mining challenge. The report stated that mining companies are required by Act 703 to give preference to community members for employment opportunities.

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The Commission finds that the authors of the report misread and misunderstood the provision. Act 703 rather provides that the holder of the mineral right shall give preference in employment to citizens to the maximum extent possible and consistent with safety, efficiency and economy [Section 105(2)]. There is a localization policy enshrined in Act 703. The Act is quite explicit on the recruitment and training of Ghanaians, with the intention that after a period, the Ghanaians will replace their foreign counterparts. This provision is being strictly applied and the mining companies are obliged to submit training programmes, with specific takeover dates, which programmes are reviewed and subsequently approved by the Commission. The mining companies have laid down processes and procedures on the employment of community members. The report makes mention of projects of mining companies which are not functioning and others which are inadequate. According to the report, community members complained of broken-down boreholes, lack of the provision of school buses and other amenities required by the communities. Mining companies are required to enter into an agreement with affected communities on what social amenities the communities wish to have provided to them. The mining companies are obliged to submit Environmental Impact Assessment (EIA) to the EPA, in which the mining companies are required to address social issues affecting the communities. The mining companies are also expected to state how the social issues will be addressed and how much the companies intend to expend on the communities. Upon the submission of the EIA, when it is found to be satisfactory, the EPA then grants the mining companies an environmental permit to mine. The EPA has created a new system called AKOBEN, which is an Environmental Performance Ratings and Public Disclosure programme. One of the issues that the programme deals with is how the companies adhere to commitments made towards their corporate social responsibility programmes. The EPA reviews the activities of the mining companies and grades them according to their performance in the communities. No operating mine will intentionally cause the spillage of cyanide. Spillages occur due to many and varied factors; some human, some due to defective design among others. Most of the mines have emergency response plans in dealing with mine disasters, including cyanide and chemical spills. There are prevalent diseases, such as upper respiratory tract infections and tuberculosis. These diseases are mostly suffered by illegal miners. There is also no available data conclusively linking the diseases to mining operations of the large scale mining companies. The report mentioned that there was a lack of legislation on public health, safety and environment. The report added that the mining companies do not account to the Government when they cause harm to the communities near mining sites.

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Act 703 provides that Regulations may be made to give effect to the Act. In that regard there are currently draft regulations which comprehensively deal with the health, safety and environmental issues. The regulations have extensive provisions on the obligations of the mining companies to their employees as well as the communities near mining sites. E) VIOLENCE ASSOCIATED WITH MINING There were demonstrations against some of the mining companies, and that police and military patrols were present to bring the situation under control. During some of the demonstrations, scuffles ensued between the demonstrators and the security personnel, which led to injuries. The presence of the military and the police was as a result of a rise in robberies and crime, and not upon the invitation or request of the mining companies.

F) LACK OF ACCESS TO JUSTICE The report stated that the community members face a lot of challenges due to their illiteracy and lack of knowledge. The community members, according to the report do not know when their rights are being violated because they do not know their rights. It added that it is the Governments responsibility to disseminate information in a manner which is accessible and informative to the community members. The report stated further that there are insufficient procedural remedies afforded to land owners. With respect to the Government, the report said that the Government did not effectuate periodic checks on mining companies and added that there was no law in place requiring governmental agencies to make visits to mining sites. Admittedly, it is possible that not every single person in communities affected by mining knows his/her rights and is aware of the mining laws and regulations. The Commission concedes also that it is responsible for educating the people on the mining laws, the effects and impact of mining on communities as well as on the rights of the community members. Prior to the passage of Act 703, the Commission organized a number of stakeholders workshops, which were attended by all manner of persons and institutions, including chiefs, traditional authorities as well as representatives of the Assemblies. Although this to a large extent proved successful, it is possible that the information received did not trickle down to all the community members and more needs to be done to ensure that adequate information on the mining laws and the rights of owners/lawful occupiers is disseminated to as many community members as possible. There is however a large portion of community members who know their rights and who engage the companies in discussions for compensation, resettlement and developmental projects for the communities. It is also knowledge of their rights which drives community members to partake in demonstrations as well as lodge complaints at the Ministry responsible for mines and the Commission. As stated in the report, some community members and associations have taken court action against some mining companies.

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With regards to the delays associated with court cases, this is not peculiar to only the mining sector. The mining companies cannot therefore be blamed for inordinate delays in court matters and the Government is in no position to interfere in the operations of the Judiciary.

In conclusion and as already stated, the Commission is of the opinion that although the report contained some genuine findings and legitimate recommendations, the report on the whole did not reflect the true state of affairs of the effect of mining in Tarkwa. The authors of the report made damning allegations of corruption against the chiefs, the mining companies and the authorities responsible for mining without providing a shred of evidence to substantiate the allegations. The persons named in the report, to which certain statements were attributed, when contacted claimed that the report misrepresented and misquoted what they said to the authors. The authors also misinterpreted provisions of the mining law and drew conclusions which have no legal backing.

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