The Member of Parliament for Old Tafo, Vincent Ekow Assafuah, has backed a move by the Attorney-General to appeal the jail term handed to Chinese national Aisha Huang for illegal small-scale mining (Galamsey).
In the view of Assafuah, the judge made a mistake with the number of years she handed to Aisha Huang, which is four and a half years in prison.
“The question is, was the judge wrong or did the judge err in pronouncing that Aisha Huang after her conviction be given a term of four and a half years? The combined effect of Articles 19 (5) and 19(11) is very clear. The combined effect is that at every material time, there should be a definition of an offense and that offense should also have the punishment that has been stated in a written law. To me, you cannot even go to court without Articles 19 (5) and 19(11). Articles 19(5) and 19(11), to me, is prerequisites for you to initiate Article 19(6), a prerequisite because you have to go to court first to initiate a prosecution against the person and after the conviction of the supposed accused person then Article 19 (6) can come in. That is why the judge said she cannot give any severe punishment to the accused person.
“I was tempted to lean with the A-G that there should be an appeal because to me the judge erred based on Article 19(6) because 19(5) and 19(11) is the combined effect for any initiation of any precautions,” he said on the Big Issue on TV3 Wednesday, December 5.
The High Court presided over by Justice Lydia Osei-Marfo, on Monday, December 4 sentenced Aisha Huang to four years in prison under the Minerals and Mining (Amendment) Act, 2015 (Act 900) after being found guilty of engaging in Galamsey.
She was also fined GHC48,000.00.
The Court ruled that Aisha Huang did not have a license to undertake any mining activities in Ghana.
But scores of Ghanaians expressed concern about the nature of the punishment.
For instance, a Private legal practitioner Sheila Minkah-Premo, said she expected a harsher punishment for Aisha Huang.
Commenting on this on the Ghana Tonight show on TV3 Monday, December 4, Madam Sheila Minkah-Premo said “I have followed the case a bit, in my view, I think the punishment is a bit lenient.
“I expected something heavier once she was found to be guilty. But I guess the judge gave her own reasons why the sentencing came as it is.”
But the Attorney-General (A-G) Godfred Dame served notice that he would appeal the judgement. Mr Dame said he intends to test the soundness of the decision of the trial court to punish Aisha Huang under Act 900 instead of Act 995.
The Attorney-General noted that he will ensure that the new sentencing regime imposed by Act 995 is applied in this case.
“Whilst applauding the efficiency of the justice delivery system witnessed in the trial of Aisha Huang, the Attorney-General will, however, test the soundness of the decision of the trial court to punish the accused person under Act 900, by filing an appeal at the Court of Appeal, against the sentence in order to ensure that the new sentencing regime imposed by Act 995 is applied to the accused person,” he stated.
The A-G in a statement said “The attention of the Attorney-General has been drawn to various misleading comments by some sections of the public in reaction to the judgment.
The Attorney-General hereby respectfully, entreats members of the public including lawyers, to be mindful of the facts stated above and desist from comments which not only jeopardise the sound and efficient administration of justice, but also undermines the fight against illegal mining (galamsey).”
The Attorney-General expressed appreciation for the relatively swift manner (a little over one year) in which justice has been dispensed in this case.
“Same underscores the commitment to the punishment of illegal mining offences,” he assured.
Below is the A-G’s full statement…
In 2017, Aisha Huang was charged with illegal mining offences committed between 2015 and May, 2017. On 19th December 2018, the Attorney-General entered nolle prosequi and terminated the trial. The Comptroller-General of Ghana Immigration Service revoked her permit to remain in Ghana indefinitely and ordered her immediate repatriation to China
pursuant to section 20 (2) of the Immigration Act, 2000, Act 573.
Aisha Huang was indeed put on Ethiopian Airlines flight, which took off at about 12:50 pm on 19th December 2018 to Addis Ababa, enroute to Guangzhou-China. She sat on seat No. 32 F (Economy Class). Subsequently, Aisha Huang was found to have re-entered Ghana
contrary to the order of the Comptroller-General. She was arrested again on 2nd September 2022 in Kumasi.
Immediately, the Attorney-General directed the prosecution of Aisha Huang for all past and present offences committed by her. The process and judgment After a trial in which the prosecution called 11 witnesses and the accused person gave evidence in her defence, the High Court presided over by Her Ladyship Justice Lydia Osei-Marfo, on 4th December, 2023, convicted the accused of all offences and sentenced her to various terms in prison to run concurrently.
i. Counts one and two – four (4) years and six (6) months in prison (in hard labour) as well as a fine of three thousand (3000) penalty units;
ii. Count three – twelve (12) months in prison (in hard labour);
iii. Count four – one thousand (1000) penalty units or in default,
to serve a term of three (3) years imprisonment.
The learned judge considered the fact that the offences of undertaking a mining operation without a licence and facilitating the participation of persons engaged in a mining operation without a licence with which the accused was charged, were committed
between February, 2015 and May, 2017, at a time that the Minerals and Mining (Amendment) Act, 2019 (Act 995), which imposes a punishment of a minimum of twenty (20) years in prison for a non-Ghanaian together with a fine of between one hundred thousand penalty units and three hundred and fifty thousand penalty units, had not been passed.
In the view of the trial judge, article 19(6) of the Constitution prohibits a penalty from being imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time that it was
committed.
The legislation in place at the time Aisha Huang committed the offences of undertaking a mining operation without a licence and facilitating the participation of persons engaged in a mining operation without a licence (February 2015 – May, 2017), was the Minerals and Mining (Amendment) Act, 2015 (Act 900), which mandated a fine of not more than three thousand penalty units or to a term of imprisonment of not more than five years or to both.
The learned judge thus, taking account of the fact that the accused had already spent more than one year in custody, sentenced her in the manner stated above.
The attention of the Attorney-General has been drawn to various misleading comments by some sections of the public in reaction to the judgment. The Attorney-General hereby respectfully, entreats members of the public including lawyers, to be mindful of the facts stated above and desist from comments which not only jeopardise the sound and efficient administration of justice but also undermine the fight against illegal mining (galamsey).
The Attorney-General expresses appreciation for the relatively swift manner (a little over one year) in which justice has been dispensed in this case. Same underscores the commitment to the punishment of illegal mining offences. Whilst applauding the efficiency of the justice delivery system witnessed in the trial of Aisha Huang, the Attorney-General will however test the soundness of the decision of the trial court to punish the accused person under Act 900, by filing an appeal at the Court of Appeal, against the sentence in order to ensure that the new sentencing regime imposed by Act 995 is applied to the accused person.
