Unequal Justice: The Constitutional Crisis in Deporting Foreigners and Prosecuting Ghanaians for Illegal Mining

Illegal mining, popularly known as “galamsey”,has become one of the most pressing environmental and socio-economic challenges in Ghana. In recent years, the government’s attempt to combat the menace has involved the arrest of both foreign nationals and local Ghanaians engaged in illegal mining activities. However, the trend of deporting foreign nationals particularly Chinese citizens while subjecting Ghanaian accomplices to full criminal prosecution raises serious constitutional, legal, and moral concerns. This article interrogates the legality and constitutionality of this selective approach to justice.

The Legal Framework on Illegal Mining in Ghana

Illegal mining in Ghana is primarily regulated under the Minerals and Mining Act, 2006 (Act 703), which was amended in 2015 and 2019 to introduce stiffer penalties for offenders. Section 99 of Act 703 criminalizes mining without a license, with penalties including fines and imprisonment. It is important to note that both Ghanaians and foreigners are subject to this law equally.

The 1992 Constitution of the Republic of Ghana the supreme law of the land enshrines several fundamental legal principles that must guide law enforcement:

1. Equality Before the Law; Article 17(1) and (2) of the Constitution provides that “All persons shall be equal before the law”, and “A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.”

2. Right to Fair Trial: Article 19 guarantees every person the right to a fair trial, including the presumption of innocence, the right to be tried within a reasonable time, and the right to legal representation.

3. Sovereignty and Supremacy of the Constitution: Article 1(2) emphasizes that any law or conduct inconsistent with the Constitution is null and void.

Deportation Versus Prosecution: A Contradiction in Practice

Recent high-profile cases such as the controversial deportation of Chinese national Aisha Huang in 2018, who was later rearrested for similar offences and the announcement by the government of Ghana In April 2025 to deport foreign nationals engaged in illegal mining (also known as “galamsey”).exemplify the disturbing trend where foreign offenders are swiftly deported while their Ghanaian collaborators are subjected to criminal prosecution, incarceration, and public shaming.

This dual approach undermines the principle of equality before the law. By deporting foreigners, the state not only prevents full prosecution but also denies the Ghanaian public the opportunity to hold these offenders accountable through transparent legal processes. Worse still, the deportation policy offers foreign offenders a form of immunity from Ghanaian criminal law, creating the perception that foreigners can exploit the country’s resources with impunity.

Constitutional Implications

The deportation of foreigners instead of prosecuting them raises multiple constitutional red flags:

1. Violation of Article 17 ; Equality Before the Law: By choosing to prosecute Ghanaians while deporting foreigners for the same offence, the state practices de facto discrimination based on nationality, undermining the constitutional guarantee of equality before the law.

2. Undermining Rule of Law and Due Process: Deporting an accused person prior to prosecution and conviction subverts the judicial process. It short-circuits justice, denying both the accused and the victims (in this case, the Ghanaian state and people) their day in court.

3. Contravention of International Legal Obligations: Ghana is a signatory to several international conventions on criminal justice and environmental protection. The failure to prosecute foreign nationals involved in environmental crimes contradicts these obligations and erodes Ghana’s global standing.

Policy and Moral Concerns

The current approach also poses grave policy implications. It sends the wrong message to the international community and potential investors about Ghana’s commitment to the rule of law and environmental governance. Moreover, it breeds resentment and disillusionment among the Ghanaian populace who see their fellow citizens suffer harsh punishment while foreign nationals escape with mere deportation.

The Way Forward

To restore public trust and uphold the Constitution, the government must adopt a non-discriminatory, law-based approach to illegal mining offences:

1. Prosecute All Offenders Equally: Whether foreign or local, all individuals involved in illegal mining must be prosecuted under Ghanaian law. Deportation should only be considered after conviction and the full serving of sentences.

2. Reform Immigration and Criminal Enforcement Procedures: The collaboration between the Ghana Immigration Service and the Attorney-General’s Department must be strengthened to ensure that immigration procedures do not override criminal justice obligations.

3. Strengthen Bilateral Agreements: Ghana must engage in bilateral arrangements with countries such as China to ensure that their nationals who commit environmental crimes in Ghana are held accountable through mutual legal assistance frameworks.

4. Enhance Judicial Capacity: Special courts or dedicated dockets may be set up for environmental and mining-related offences to fast-track cases and ensure efficient justice delivery.

Conclusion

The selective justice approach where foreign nationals are deported while Ghanaians face the full brunt of the law offends the Constitution of Ghana, undermines the rule of law, and dilutes the fight against illegal mining. To sustain public trust and uphold national integrity, Ghana must adopt a more just, transparent, and constitutionally compliant framework for dealing with all illegal mining offenders, irrespective of their nationality.

Only then can we build a just society where the law reigns supreme and justice is truly blind to race, nationality, or social status.

The writer Enoch Anhwere Afoakwah is a lawyer, an International Relations Specialist and public policy analyst. Enoch writes on legal, constitutional, and governance issues in Ghana.