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Part A: General Topics - 22. General Offenses and Penalties | 22.1 General Provisions on Offenses and Penalties

A mining law should seek to define general offenses that apply to all mining rights and the legal consequences imposed, in addition to ones unique to specific mining rights. A mining law may also incorporate references to appropriate offenses and legal consequences as enumerated under other national laws such as criminal, fraud, labour etc. Penalties need to be commensurate with the type and gravity of the offence, as well as correlated with different applicable sanctions. If appropriate, the law should primarily provide for administrative sanctions or fines, which are generally easier to impose/execute than criminal sanctions.

Some countries like Uganda provide for a general penalties law that specifies the fines to be paid in “currency points” or “currency units”. This is to accommodate currency fluctuations and regulate severity of the fines without modification of the mining law.

22.1 Example 1:

Article [_]

(1) No person may explore or prospect for, or retain or mine or dispose of any mineral in [Country] except under, and in accordance with, a licence issued under this [Act][Code][Law].

(2) Any person who contravenes subsection (1) of this section commits an offence and is liable on conviction –

(a) in the case of an individual, to a fine not exceeding twenty-five currency points, or imprisonment for a term not exceeding one year or both; and

(b) In the case of a body corporate, to a fine not exceeding fifty currency points.

(3) Where a person is convicted of an offence under subsection (2) of this section, the court before which such person is convicted may –

(a) Order the forfeiture of all minerals unlawfully obtained by such person;

(b) And in the event that the minerals cannot for any reason be forfeited, order the forfeiture of such sums of money as the court shall assess as the reasonable value of the minerals; and any minerals or their value so forfeited shall become the property of the Government and shall be disposed of as the [Regulating Authority] may direct.

Annotation

Drawn from Uganda’s mining law (2003), the provision includes a difference of the severity of the fines between individuals and corporations. This is based on the alleged different capacity to bear a fine but more specifically as a disincentivizing measure.

The example also establishes a procedure that involves courts for its execution. In African countries with civil law systems, fines may be treated as an administrative punishment, and thus be decided and enforced by administrative entities without need for judges, who would in any case be able to control the legality and constitutionality of government actions.

22.1 Example 2:

Article [_]

(1) Any person who contravenes chapters 4, 5, 6, and 7 of this [Law][Act][Code] hereof shall be guilty of an offense and shall be liable upon conviction in a court of law.

a. In this case of an individual, to a fine not exceeding Two Thousand United States Dollars (USD$2,000:00) or its equivalent in Liberian Dollars or to imprisonment for a term not exceeding twenty –four (24) months or to both such fine and imprisonment and

b. In the case of any other Persons to a fine not exceeding twenty-five thousand United States Dollars (USD$25,000:00) or its equivalent in Liberian Dollars.

(2) The court before whom a Person is convicted under Section [_] hereof may order the forfeiture of all Minerals obtained by such Person or if such Minerals cannot be located of such sum of money as may represent the value of such minerals. Any mineral so confiscated shall be sold or otherwise disposed of as the Court may direct and the proceeds of such sales shall be paid into the Mineral Development Fund.

Annotation

Drawn from Liberia’s mining law (2000), this provision focuses on violations of the code with criminal law implications. Depending on the harm caused by the offense, governments can consider using criminal law penalties. However, officers must know that the enforcement of criminal penalties requires a higher legal standard of evidence, which makes them more difficult to be successfully applied. The criminal procedure is usually regulated in a specific procedural code.

In all cases, including the previous example, the forfeiture of the mineral extracted as the result of a legal violation is part of the penalty or a mechanism to enforce the economic penalties.