When Justice Audrey Kocuvie-Tay pronounced 20 years with hard labour on Bernard Antwi Boasiako, Chairman Wontumi, two groups were unhappy.
His supporters said: “Why didn’t she give him the minimum 15 years? He is a first offender.”
His critics said: “Why didn’t she give him the maximum 25 years? He destroyed the forest.”
Both are asking the same question: Why 20 years?
The answer is in how judges sentence in Ghana. It is not lottery. It is mathematics.
THE LAW GIVES THE JUDGE A LADDER
Under the Minerals and Mining Amendment Act, 2019, Act 995, the punishment for facilitating illegal mining is a ladder.
The bottom of the ladder is 15 years. The top of the ladder is 25 years. The middle is 20 years.
Parliament put the ladder there because it wanted to stop judges from giving fines and 1-year sentences as they used to do under the old law. But Parliament still left 10 steps between 15 and 25 for the judge to decide where you deserve to stand.
Where you stand depends on two baskets the judge carries.
BASKET ONE: WHAT REDUCES YOUR SENTENCE – THE MITIGATING FACTORS
The judge must look for good things about you.
In Wontumi’s case, his lawyers put these in Basket One:
1. First Offender: He has never been convicted by any court in Ghana before. In Ghana law, this is a big deal. The law believes first offenders deserve a second chance, but not a free chance.
2. Family Man and Age: He is over 50, with a family, children, and dependants. He is not a young man who can easily restart life.
3. Businessman Who Employs: Akonta Mining employs Ghanaians, pays some taxes, and contributes to the economy.
4. Did Not Run Away: He submitted himself to investigation, came to court, and did not abscond like some galamseyers who run to neighbouring countries.
If the judge looked at only this basket, she would have given him 15 years, the minimum. That is what first offender normally attracts.
BASKET TWO: WHAT INCREASES YOUR SENTENCE – THE AGGRAVATING FACTORS
The judge must also look for bad things about the crime.
The prosecution and the facts of the case put these in Basket Two:
1. The Scale and Place of the Crime:* This was not galamsey in someone’s backyard. It was in the Tano Nimiri Forest Reserve area, a protected forest. Under Ghana’s laws, forest reserves are red zones. Destroying them threatens our water and cocoa.
2. The Role of the Convict: He was not a labourer holding a pickaxe earning GH¢200 a day. He was the owner of the concession, the mastermind, the one who had the license and knew the law. Section 14 of Act 703 says you cannot give your concession to another person without ministerial approval. He broke that rule himself.
3. No Remorse, Afterthought Defence: The judge specifically said Wontumi’s coconut reclamation story was an afterthought. In sentencing, remorse is key. If you say “I am sorry, I made a mistake, I have learned,” judges reduce sentence. If you say “I was planting coconut” when excavators were found, the judge sees it as lack of remorse.
4. Deception of State Institutions: Using the name of reclamation to cover mining undermines the Minerals Commission and Forestry Commission.
If the judge looked at only this basket, she would have given him 25 years, the maximum.
WHY 20 YEARS IS THE BALANCE
Justice Kocuvie-Tay did what Supreme Court guidelines call the balancing act.
She did not ignore that he is a first offender. If she ignored it, she would have given 25 years.
She did not ignore that the crime was serious and in a forest. If she ignored that, she would have given 15 years.
She put both baskets on a scale. The first offender pushed it down. The forest reserve and lack of remorse pushed it up.
The scale settled in the middle – 20 years.
In law, this is called a starting point sentence. For a first offender who is also a concession owner facilitating galamsey in a forest, 20 years is the starting point. If you plead guilty early and show real remorse, you get 15 to 18 years. If you are a repeat offender or you destroy a water body completely, you get 22 to 25 years.
WHY THE JUDGE COULD NOT GIVE LESS THAN 15 OR MORE THAN 25
Some people think a judge can do anything. No.
Article 19 of the 1992 Constitution says a person cannot be given a punishment heavier than the law says. So she cannot give 30 years.
And because Act 995 says “not less than 15 years,” she cannot give 14 years, 10 years, or 5 years, even though he is a first offender. If she does, the Attorney-General will appeal and the Court of Appeal will add the years back.
The only person who can remove the 15-year minimum is Parliament or the Supreme Court if it declares it unconstitutional. As of today, neither has done so.
So why 20 years and not 15 or 25?
15 years would have meant the crime was not serious and only the first offender status mattered.
25 years would have meant he was a hardened criminal with previous convictions.
20 years means exactly what the judge wanted to say: You are a first offender, so I will not give you the maximum. But you are a big man who knew the law, destroyed a forest, and showed no remorse, so I will not give you the minimum.
It is the middle. And in this case, the middle is the message.