1. INTRODUCTION: THE GAP IN THE GALAMSEY LITERATURE
Galamsey is a colloquial abbreviation derived from the phrase “gather and sell.” Initially, the term referred to the practice of individuals seeking small fragments of gold from abandoned mining sites or from sites where operations had concluded without adequate site reclamation.
In contemporary usage, the term has evolved to denote the practice of unlicensed mining. Although various minerals are extracted through this method, gold is the most notorious, leading to the term becoming closely associated with small-scale, illegal gold mining.
Public discussions have predominantly focused on the environmental degradation resulting from galamsey, including river contamination, deforestation, and reduced arable land.
However, there has been significantly less focus on the criminal justice dimension: the application of the law, the conduct of prosecutions, and the challenges associated with securing convictions.
Ergo, this article aims to examine galamsey not solely as a socio-environmental issue but as a legal problem, grounded in the evidentiary, procedural, and constitutional realities of Ghanaian law.
It will comprehensively analyse the legal frameworks governing illegal mining, commonly known as galamsey, and evaluate the legal deficiencies that impede the effective prosecution of individuals arrested and charged with this offence.
a) A Judicial Perspective: The Discrepancy Between Legislative Intent and Courtroom Reality
As a judge with experience presiding over cases related to galamsey, I can attest to the systemic factors contributing to the frequent failure of prosecution in such matters.
The prevailing outcome is often an acquittal or discharge rather than a conviction. As a result, these legal proceedings frequently fall short of achieving the significant deterrent effect that Parliament envisioned when it enhanced the penalties under Act 995.
To address the volume of these cases, the Chief Justice has designated specific courts in regions most impacted by this issue. These judicial focal points include courts in the Eastern Region (Koforidua), the Ashanti Region, and the Western, Western North, and Northern Regions.
It is within these courtrooms that the legal battle against galamsey is being contested, and, from a prosecutorial perspective, largely lost.
In light of the magnitude of the problem, there are increasing calls to establish additional designated courts, both High and Circuit Courts, to expedite the trial of galamsey cases.
While the intention to accelerate the delivery of justice is commendable, it may be prudent to first investigate the underlying reasons for the current pace of litigation.
A strategic approach would involve commissioning research to determine why existing cases are not progressing as swiftly as anticipated, before replicating the existing framework.
This would ensure that any expansion of the judicial system is targeted and effective, addressing the root causes of delay rather than merely increasing the number of venues where the same evidential challenges persist.
2. THE LEGAL FRAMEWORK AND THE BURDEN OF PROOF
i) The Law on Paper: A Stringent Arsenal
Currently, individuals apprehended for illegal mining are charged under Section 99 of the Minerals and Mining Act, 2006 (Act 703) as amended by the Minerals and Mining (Amendment) Act, 2019 (Act 995), which delineates the offence of illegal mining.
The core offence is defined under Section 99(1) of Act 703. It stipulates that a person shall not engage in mining or exploratory activity unless they have a licence or right granted by the Minister responsible for Mines under this Act.
The amendment introduces a more severe penalty for individuals convicted of this offence. A convicted individual may face a fine ranging from a minimum of ten thousand penalty units to a maximum of fifteen thousand penalty units, or a term of imprisonment between 15 and 25 years, or both. It is important to note that one penalty unit is equivalent to GH¢12.
Additionally, upon conviction for the offence, the court is mandated to order the forfeiture of any minerals or mineral products obtained through illegal mining, as well as any equipment, machinery, tools, assets, or properties derived from the proceeds of illegal mining.
ii) The Law in Practice
The stringent penalties outlined in the law remain largely theoretical for many offenders, as the state consistently fails to meet the requisite burden of proof necessary to secure a conviction. This failure results in the acquittals and discharges I have observed from the bench.
Given the expansive nature of mining, it is common for multiple individuals to be arrested simultaneously and charged. Typically, they are charged with conspiracy to commit the offence as a primary count, followed by the actual commission of the offence as a secondary count.
In accordance with universally accepted principles of a fair trial, the law presumes that any person charged with an offence is innocent until they plead guilty or are proven guilty by the state.
Hence, upon their arraignment in court, it becomes the sole responsibility of the prosecution to present clear, cogent, and credible evidence to establish the accused individual’s guilt beyond a reasonable doubt.
a. The Prima Facie Hurdle: A Judge’s Assessment
In practice, this entails the prosecution opening its case and calling witnesses who may introduce documents or physical items, such as weapons, implements, and photographs of the scene, as evidence.
Each prosecution witness is subject to cross-examination by the accused or their legal representative. The prosecution concludes its case after presenting its final witness.
The court must then determine whether the prosecution has established a prima facie case against the accused. This involves assessing whether:
- The prosecution has proven each element of the offence,
- The evidence adduced by the prosecution has been so discredited as a result of cross-examination; or
- The evidence is so manifestly unreliable that no reasonable tribunal could safely convict upon it, or
- The evidence is evenly balanced, in that it is consistent with two likely explanations: one consistent with guilt and the other with innocence.
It is only when the court finds that the prosecution has satisfied these conditions that it will hold that a prima facie case has been established. The court will then invite the accused to open their defence.
Where the prosecution fails to establish any element of the offence, the accused individual must be acquitted and discharged. Similarly, if the evidence is so discredited, unreliable, or open to multiple interpretations, the court must also acquit and discharge the accused.
3. THE EVIDENTIAL BLACK HOLE: PROVING THE “ACT” OF MINING
In practice, it is rare for the prosecution to prove all elements, particularly the element of mining. The central failure lies in an inability to distinguish mere presence from active participation.
a. The Core Failure: Proving the “What” and “How”
Regarding the substantive act of mining without a licence, the prosecution must first establish that the accused were engaged in mining, and then prove that the mining was conducted without a licence.
The prosecution must demonstrate that each accused individual was involved in mining activities, not merely that they were present at a mining site. The court must be satisfied that each accused person participated in the act of mining as defined by law.
This is where the prosecution frequently falters. Arrests are usually made in mass swoops involving several suspects, and there is little effort to particularise the role of each accused individual at the mining site. This leads to situations where arrests are made without sufficient evidence.
Whereas the ‘when’ and ‘where’ are easy to prove during trial, the thorny areas are the ‘what’ and ‘how.’ The prosecution can show that the accused individuals were found at a mining site on a particular day, but cannot prove exactly what they were doing and how they were engaged in illegal mining.
There are instances in which the prosecution lacks photographic documentation of the mining site where the accused were apprehended. Additionally, it is not uncommon for the prosecution to be without photographs of the accused at the time of their arrest.
The adage “a picture is worth a thousand words” underscores the importance of visual evidence. Therefore, one would reasonably expect the arresting officers to collect and present photographs or video evidence of the accused either engaged in the alleged activity or taken immediately after their arrest, which would meet the criteria for contemporaneous evidence during the trial. Unfortunately, this expectation is often unmet.
Thus, unless the accused individual admits to the offence or one of them serves as a prosecution witness, the evidence often amounts to: “We received intelligence that the accused persons were engaged in galamsey, proceeded to the scene, and found them engaged in galamsey. They were arrested, but some managed to escape.”
Under cross-examination by learned counsel for the accused, the prosecution witness might be asked, “In paragraph 3 of your evidence in chief, you stated you found the accused persons engaged in galamsey when you arrived. Can you specify what each of them was doing?”
The typical response is, “My Lord, they were engaged in galamsey.” Learned counsel for the accused will pursue this line of questioning, but the prosecution witness will fail to specify the particular or collective acts of illegal mining each accused was engaged in. At best, the witness may speculate; at worst, they may evade the question entirely.
b. The Conspiracy Conundrum: Proving an Invisible Agreement
This evidential failure is compounded in conspiracy charges. To prove conspiracy, the prosecution must demonstrate that the accused individuals agreed to act together for the common purpose of undertaking the criminal enterprise of mining without a licence.
It is essential to recognise that the offence of conspiracy is difficult to establish by direct evidence of an agreement. Rather, it is typically proven through circumstantial evidence, which, when evaluated collectively, must lead to only one conclusion: that the accused individuals acted in concert for a criminal purpose.
For circumstantial evidence to hold, the prosecution must demonstrate the specific role(s) each accused played in relation to the offence, thereby leading to a reasonable inference that they agreed to act together to commit it.
This presents a significant challenge: demonstrating how each accused was involved. This task is Herculean because law enforcement agencies often arrest all individuals found at a mining site without documenting crucial evidence of each person’s specific actions.
For instance, was A1 operating an excavator? Were A2 and A3 using a pump machine to drain water? Was A4 using mercury for blasting? Was A6 using cyanide to leach or dissolve the extracted ore?
Essentially, what specific actions were each of them engaged in that would allow a reasonable mind to conclude, prima facie and ultimately beyond a reasonable doubt, that they had conspired to engage in the criminal enterprise of mining without a licence?
4. ILLUSTRATIVE FAILURES AND JUDICIAL CONSTRAINTS
a. A Glaring Imbalance: The Ease of Proving the “Without a Licence” Element
While the establishment of the actus reus of the offence, the physical act of mining, poses a consistent challenge to prosecution, it generally succeeds in demonstrating the second element, that the mining was conducted without a license.
A mining concession should not be conflated with a mining license. A concession is granted by the Minister of Lands and subsequently ratified by Parliament. Following this, the concession holder is obligated to engage with the Minerals Commission and the Environmental Protection Agency (EPA) to secure the requisite licenses (reconnaissance, prospecting, and mining licenses) and permits, respectively, prior to commencing mining operations. (EP A).
To secure a conviction, except in cases where an accused person has pleaded guilty, the prosecution bears the legal burden of proving the positive fact that the accused lacked the requisite license. It is not the responsibility of the accused to prove the negative, namely, that they possessed one.
While an accused person’s failure to produce a license upon request may raise an evidential inference, it does not, ipso facto, relieve the prosecution of its ultimate burden. The prosecution must actively present evidence of nonexistence to establish the absence of a license.
Given that both the Minerals Commission and the Environmental Protection Agency (EPA) are state agencies, obtaining a formal document confirming that no license exists for a named individual or entity is a straightforward task that a diligent investigator should endeavour to complete.
Consequently, even when the prosecution successfully demonstrates the absence of a license, its systemic failure to prove the actus reus of mining itself necessitates an acquittal. The law mandates proof of every element of the offence; proficiency in establishing one element cannot compensate for the deficiency in another.
b. The Court’s Constraint: When the Law Demands an Acquittal
At the close of the prosecution’s case, when evaluating the evidence to determine whether or not a prima facie case has been established, a court may ultimately find that the prosecution has failed to lead sufficient evidence to prove a vital element of the offence.
It would then be obligated to acquit and discharge the accused individual even without calling upon him to open his defence. This recurring outcome has generated public frustration and a misperception that the courts are lenient, when in fact the acquittals stem from prosecutorial inadequacy rather than judicial sympathy.
c. A Tale of Two Failures
The practical consequences of this evidential failure are starkly illustrated by cases that have come before the courts.
- The “Idle Miner”
In a particular case, the prosecution’s own facts indicated that at the time of their arrest, the accused individuals were present at a mining site with various equipment, including a shovel and a stationary excavator.
However, they were not engaged in any mining activity with this equipment, as one of their colleagues had gone to town to procure fuel for the excavator machine. Despite this context, the accused were charged with conspiracy to engage in mining without a licence and for conducting mining activities without a licence.
Clearly, in the absence of direct evidence of conspiracy, it would be challenging for the prosecution to substantiate its case, as the accused were not involved in any actions from which the court could reasonably infer an agreement to act together for the common purpose of engaging in the illicit enterprise of unlicensed mining.
Furthermore, since they were idle at the site at the time of their arrest, the prosecution could also not prove that they were engaged in mining operations.
Perhaps, a charge of the inchoate offence of preparation to engage in mining without a license may have been appropriate.
- The “Uncorroborated Informant”
In another instance, the prosecution’s summary of facts indicated that, following a tip-off that the accused individuals were engaged in mining in a river, the police swiftly arrived at the location to apprehend them.
At that moment, the accused individuals were not participating in any activities, and neither were they in possession of any mining equipment; however, the informant asserted that prior to notifying the police, he had observed them engaged in mining.
The brief facts further noted that the informant failed to provide any corroborative evidence for his claims and could not specify the actions of each accused individual to the investigator.
Upon reviewing the facts, the learned state attorney acknowledged that the state lacked sufficient evidence to proceed but indicated to the court that he felt compelled to bring the accused before the court due to public interest considerations.
Ultimately, the case was struck out as withdrawn, as it would not have been a judicious allocation of state resources to proceed to trial in the absence of supporting evidence for the charges.
5. IN SEARCH OF SOLUTIONS
a) Patching the Evidential Hole
One might quickly suggest that the solution is for the prosecution to gather sufficient evidence of the accused individuals engaging in the act before arresting them. While this is a commendable suggestion, it presents significant challenges.
i) A Hostile Terrain: When Evidence Gathering Becomes a Combat Mission
One major challenge of gathering evidence prior to arrest is the inherent risk involved. News reports of arrests for illegal mining indicate the presence of various firearms at such sites, suggesting that these arms are intended for protection or confrontation with rival miners or law enforcement.
The availability of such weapons means that anyone attempting to gather evidence prior to arrest risks potential fatal harm if detected. Even the use of drones could be thwarted, as individuals engaged in illegal mining could shoot them down.
ii) The Corruption Compromise: When Enforcers Become Accomplices
A further, deeply corrosive factor that undermines the evidentiary process is the compelling allure of quick financial gain. The individuals and units charged with clandestine evidence-gathering operate in an environment permeated by abundant illicit capital, thereby creating a significant risk of compromise.
This concern extends beyond mere theoretical speculation and is substantiated by documented instances. Notably, one can refer to numerous news reports on Operation Vanguard, the state’s principal anti-galamsey task force.
Personnel drawn from the police, military, and national security apparatus have been publicly implicated in schemes involving the acceptance of monetary payments from illegal miners in lieu of making arrests.
More insidiously, some members of the task force were discovered to have acted as informants for mining syndicates, providing advance notice of impending law enforcement operations.
This precedent establishes a clear and present danger. When the potential rewards for collusion are substantial, the integrity of the evidence-gathering chain is significantly undermined.
The likelihood that critical pre-arrest intelligence could be leaked, or that evidence could be intentionally mishandled to create reasonable doubt, becomes unacceptably high.
This form of institutional corruption does not merely hinder individual cases; it systematically taints the foundation of prosecution, ensuring that even the most well-intentioned legal frameworks are rendered ineffective before a case reaches the courtroom.
b) Amending the Law: The Perils of Shifting the Burden of Proof
Another potential solution for ensuring expeditious and successful prosecution is for Parliament to amend the law to reflect the realities on the ground. A possible amendment could state: “Any person found at a mining site without a licence, proof of which shall be on him, commits an offence.”
Such an amendment would address the current situation where many individuals are arrested at mining sites without clear evidence of their actions. Additionally, this amendment would share the burden of proof between the prosecution and the accused.
The prosecution would be tasked with proving that an accused individual was found at a mining site, after which the burden would shift to the accused to prove that their presence was lawful, i.e., that they possessed a mining licence or were present for a purpose other than mining.
c. Challenge – Sins Against the Presumption of Innocence
This, however, is the crux of the matter: the legal and philosophical hurdle we must carefully consider. The suggested amendment, while pragmatic, runs headlong into a fundamental pillar of our criminal justice system: the presumption of innocence as enshrined in clause 2 (c) of Article 19 of the Constitution, 1992.
Currently, the burden is on the Republic to prove every element of the offence. The accused person has no legal obligation to prove anything. To shift the burden of proof onto the accused person to show that they had a mining license is, in essence, to presume their guilt simply because they were found at a mining site.
It forces them to present evidence to avoid a conviction, effectively turning the principle on its head. Our courts have historically been very protective of this right.
It is not a mere technicality; it is the bedrock of a just society, the very golden thread that separates a system of justice governed by the rule of law from a system of oppression.
To erode it, even for a cause as pressing as the fight against galamsey, is a dangerous path to tread. We may be creating a precedent in which the state, frustrated by evidentiary challenges, can criminalise a situation rather than a proven act.
6. NAVIGATING THE CONSTITUTIONAL QUAGMIRE
Are we, then, confronted with an impasse? Must we decide between an ineffective law and one that violates constitutional principles? I contend that a middle ground exists, one that honours constitutional tenets while recognising the unique and harmful implications of illegal mining.
One prospective solution involves instituting a rebuttable presumption within the law. The amendment could be articulated as follows: “Any individual found at a site where unlicensed mining is visibly and actively occurring shall be presumed to be engaged in illegal mining.”
Such an amendment may not contravene fair trial principles, particularly the presumption of innocence. This is predicated on the understanding that the Constitution itself, in its inherent wisdom, recognises that this right to a fair trial is not an absolute and unyielding construct in the face of competing societal interests. The Constitution incorporates its own internal mechanism for achieving a calibrated balance.
In this context, clause 16(a) of Article 19 of the Constitution, 1992, provides a significant saving clause. It states:
“Nothing in, or done under the authority of, any law shall be held to be inconsistent with, or in contravention of, the following provisions
(a) paragraph (c) of clause (2) of this article, to the extent that the law in question imposes upon a person charged with a criminal offence the burden of proving particular facts.”
This provision explicitly authorises Parliament to enact laws that impose an evidential burden on an accused individual to prove particular facts.
The philosophical rationale is that, in certain circumstances where an accused individual possesses exclusive knowledge of a fact crucial to their defence, it does not undermine fair-trial principles or the administration of justice to require him to present evidence of that fact.
To the extent that the amendment would require an accused individual to establish the particular fact of a lawful explanation for their presence on the land, it appears to find constitutional support within the exception delineated by clause 16 (a) of Article 19 of the Constitution, 1992.
The amendment would merely require the accused to present credible evidence of their lawful purpose, a fact uniquely within their personal knowledge. Failure to do so would allow the court to draw an adverse inference.
For example, if the accused can demonstrate that they were merely a passer-by, a food vendor, or a resident of a nearby village who inadvertently wandered onto the site out of curiosity, and the courts find their explanation to be credible, reasonably probable or raising a defence in their favour, it would have to acquit and discharge.
This methodology is not without precedent; analogous statutory presumptions exist within our laws, such as cases involving possession of recently stolen property and possession of narcotic substances.
It acknowledges the practical realities of large- and small-scale, clandestine operations like illegal mining, where it is exceedingly unlikely that an innocent individual would be present at an active, remote, and often hazardous mining site. Such locations are not conducive to leisurely strolls.
a) Communal Rights versus Individual Rights
The Constitution of our Republic is not merely a static document existing in a sterile vacuum, nor is it solely concerned with abstract rights. Rather, it serves as a dynamic framework that addresses the pressing and existential threats confronting society. It is imperative to acknowledge that the enjoyment of the rights enshrined within the Constitution is accompanied by a corresponding duty incumbent upon all citizens. The Constitution itself articulates this inextricable connection.
In this regard, Article 41(k)of the Constitution, 1992 stipulates:
“The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen
(k) to protect and safeguard the environment.”
This provision is not a mere suggestion; it represents a fundamental civic obligation mandated by the supreme law of our land.
In addition, Clause (9) of Article 36 of the 1992 Constitution mandates the State to undertake “appropriate measures needed to protect and safeguard the national environment for posterity” and to “seek co-operation with other States and bodies for purposes of protecting the wider international environment for mankind.”
These constitutional directives transcend mere policy considerations; they constitute a solemn duty imposed on the State and, by extension, all entities operating within its jurisdiction. It affirms that environmental protection is not a discretionary objective but a constitutional necessity intrinsically linked to the principle of intergenerational equity.
The environmental degradation resulting from illegal mining thus constitutes not only an ecological crisis but also a constitutional breach with profound human rights implications.
The unregulated use of hazardous substances, such as mercury and cyanide, has led to the contamination of rivers and water bodies, thereby depriving entire communities of their right to safe drinking water; right implicit in the broader guarantees of dignity and life enshrined in Articles 15 and 13 of the Constitution.
The repercussions extend beyond the current generation: the pollution of agricultural land, deforestation, and chemical contamination jeopardise food security and biodiversity, thereby undermining the State’s constitutional obligation to protect the environment “for posterity.”
The circumstances are both alarming and tragic. In certain mining-affected regions, children are being born with deformities and developmental disorders attributable to prolonged exposure to heavy metals.
This represents the human face of environmental neglect. It transforms what may otherwise appear to be a policy concern into a question of justice, concerning constitutional fidelity and moral accountability.
As the framers of the Constitution envisaged, the protection of the environment is not solely about preserving trees and rivers; it is about preserving life itself and the continuity of the Ghanaian people and, by extension, the Ghanaian state.
Thus, to the extent that galamsey endangers the health, dignity, and future of citizens, it offends not only the letter but also the spirit of the Constitution. It undermines the fundamental right to a clean and safe environment, violates the directive principles of State policy, and erodes the legacy owed to future generations.
At present, we may have to engage in a delicate balancing act: to uphold the individual’s right to a fair trial while simultaneously affirming the collective duty to protect our environment for both current and future generations.
Given the ills of illegal mining, it may not serve the collective interest to rigidly adhere to the presumption of innocence without considering the broader implications for the rest of society.
7. BEYOND LEGISLATIVE AMENDMENTS: THE HUMAN ELEMENT
However, the responsibility should not rest exclusively on Parliament. The challenges faced in prosecution often originate well before the accused individuals are formally charged. They begin with the investigative agencies.
There is an urgent need for specialised training for police, national security, and military units involved in these operations. These personnel must be equipped not only as arresting officers but also as evidence-gathering agents. Furthermore, such teams would benefit from the inclusion of investigators, professional photographers and videographers, and legal experts.
Additionally, implementing a standardised protocol could yield significant improvements. Upon securing a site, officers/personnel should be trained to:
- Ensure Site Security by maintaining the presence of all individuals who have been arrested on the premises and restricting access to the site to authorised personnel only. This necessitates that armed personnel remain vigilant even after the arrests are completed.
- Document the scene immediately through photographs and videos, capturing individuals in situ with the tools and machinery associated with illegal mining.
- Create a rudimentary site plan detailing the location and specific activities of each arrested individual at the moment of intervention.
- Separate and record initial statements at the scene, prior to the opportunity for the accused to collude on a unified account.
While this approach would not eliminate all risks, it would furnish the prosecution with a more robust foundational narrative than the current, generic assertion of “we found them engaged in illegal mining.” It transitions the evidence from mere conclusion to demonstrable fact.
- In Digression: Publishing the Human Cost
It is imperative that in the quest for legal resolution, we do not turn a blind eye to the human realities underlying the menace of galamsey. For many individuals engaged in illegal mining, their involvement is driven not by greed or defiance but by an urgent necessity, the need to survive in a socio-economic landscape that offers scant safety nets for the unemployed and vulnerable populations.
The lack of effective social protection systems, particularly for young individuals in marginalized communities, has cultivated an environment ripe for desperation. It is this desperation, rather than any criminal intent, that frequently compels otherwise promising young men and women to engage in the hazardous activities associated with unregulated mining.
Although the motivation may be survival, the rewards are painfully transient. The income generated, while appearing substantial in the short term, is often swiftly depleted by the very impoverished conditions that prompted the engagement in such practices. Eventually, what remains are the severe health consequences that result from prolonged exposure to toxic substances and unsafe working conditions.
Chemicals such as cyanide and mercury, utilised in illegal mining, contaminate not only the environment but also the miners themselves, entering their bloodstream, damaging their respiratory systems, and undermining their capacity to lead healthy and fulfilling lives.
In this context, the true cost of galamsey is not merely quantifiable in terms of Ghana cedis and pesewas, but rather in the lives and futures it silently undermines. Young individuals pay with their health, dignity, and ultimately, their life.
Many begin to experience respiratory illnesses, including silicosis and mercury poisoning, after only a few seasons of work, slowly diminishing their life expectancy. The tragedy lies in the fact that these health repercussions often remain unnoticed by the broader public.
To address this issue, a practical and compassionate approach is to publish the human cost of galamsey. Public education campaigns, documentaries, and community outreach initiatives should illuminate the suffering that lies beneath the allure of quick income.
The youth must be made aware that the temporary financial relief offered by illegal mining is vastly overshadowed by the long-term consequences, such as disease, disability, and death. By revealing the human cost, we may awaken the nation’s collective conscience to confront this issue not solely as a criminal concern but as a moral and public health crisis.
CONCLUSION
The enforcement of illegal mining laws in Ghana illustrates a continued tension between the public demand for deterrent punishment and the judicial obligation to uphold procedural justice. Courts are constrained to act solely on credible evidence; they do not operate as instruments of public policy independent of substantiated proof.
Consequently, the shortcomings observed in galamsey prosecutions stem not from judicial empathy but rather from systemic deficiencies in prosecutorial and investigative processes.
Ultimately, the struggle against illegal mining is being compromised not only in the fields and riverbeds but also within our courtrooms. The existing legal framework, despite its good intentions, is constrained by evidential requirements that are nearly insurmountable given the realities of enforcement.
Legislative intervention is essential, yet it must be executed thoughtfully. An amendment that introduces a carefully constructed rebuttable presumption could equip prosecutors with the necessary tools without entirely compromising our revered presumption of innocence. Coupled with a renewed emphasis on professional, evidence-based policing, such measures could initiate a positive shift.
Otherwise, we risk witnessing a continuous procession of accused individuals passing through our courts, discharged not due to their innocence but because the state, impeded by an inefficient process and an unsuitable law, could not establish their guilt. The environment continues to deteriorate, public outcry intensifies, and the integrity of the legal system is called into question. We can, and must, strive for better.
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The Author is a Judge and an Alumna of Harvard Law School.
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