Today I continue with my series on the paper: Is Ghana's FLEGT VPA grinding to a halt and failing to achieve improvement in forest governance? I will tackle the challenge of administrative abuse of the permits regime and its consequences and why all stakeholders especially government needs to do more to achieve improvements by enforcing the VPA requirements.
2.2 Administrative abuse of timber
permits regime
Ghana’s
timber permit regime is still faced with irregularities and the underlying
challenge of corruption and abuse of the system has worsened since the VPA was
ratified. Several studies and statements from CSOs have pointed to this
challenge but authorities (Forestry Commission and its parent Ministry) have
remained adamant to not only admit the problem but also fail to find lasting
solutions that address them. An example
of the challenge facing the permits regime is the administrative abuse of
salvage permits[1]. In
2010, Forest Watch Ghana communicated to the Ministry of Lands and Natural
Resource and Parliament’s Select Committee on Lands and Forestry on alleged cases
of abuse of the timber permits regime resulting from analysis of the process of
awarding the permits and the content of over 100 salvage permits that had been
issued between 2009 and 2010. These concerns were also raised during the Joint
Monitoring and Review Mechanism (JMRM)[2] of the
VPA. The analysis showed that in the over 100 salvage permits issued, an
average of 130 trees were allocated per permit. Several permits were granted
for harvesting more 300 trees and at least one permit had been issued for an
excess of 1000 trees. In total the number of trees according to the FC that needed salvage in 2009
and 2010 was in excess of 15, 800. It is intriguing to note that the
Forestry Commission in contrast to its own practice however had held Timber
Utilization Contracts (TUC)[3] auction
for lots as small as 40 trees in the past. In a recent report published by
Global Witness[4],
there has been a sharp increase in salvage permits issued since 2010. The
number of salvage permits issued in 2009 and 2010 had increased by about 360%
(from 120 to 430)[5]
compared to the number issued between 2011 and 2012. There are a number of
legal difficulties that arise from the abuse of the salvage permits. First of
all, these
permits are awarded in contravention of the Timber Resources Management Act (1997),
Act 547 and its amendments. Section 9 of the Timber Resources Management Regulations, 2003 (LI 1649)
says that timber rights can only be allocated by auction involving
pre-qualified bidders. As far as records available to CSOs suggests, none of
these were auctioned (or at least not publicly). Secondly, Article 268 of
Ghana’s Constitution requires parliamentary ratification of all grants of
natural resource rights. CSOs maintain that salvage permits as a category of
permits needs parliamentary ratification. This allows parliament to verify that
due process has been followed. None of these salvaging permits received
parliamentary ratification. In recent times when the issue had been put forward
to the Forestry Commission, their response has been that they have acted within
their legal remit citing provisions in the 1992 Constitution article 269 (2)
which states “parliament may, by
resolution supported by votes of not less than two-thirds of all the members of
parliament, exempt from the provisions of clause (1) of this article any
particular class of transactions, contract or undertakings”. There is no
evidence that such a waiver has been provided by parliament. The Forestry
Commission must therefore come clean and explain to the public the rate of
increase in issuance of salvage permits in recent years (2009 to 2012). There
are critical questions that need answers. What processes did the Forestry
Commission go through to determine that so many trees needed salvage? In each
case what assessments were carried out? Who was consulted? What was District
Assembly’s involvement? What other alternatives were considered? How is all of
this documented? With this challenge persisting, Ghana’s timber carries
a high risk for EU importers. In light of the EUTR, such importers should be
worried. The FC’s blatant abuse of the salvage permits upon persistent pressure
from CSOs will not only undermine the credibility of Ghana’s timber exports to
the EU, undermine the credibility of the Ghana-EU VPA and pose a high risk to
EU buyers but is also a decoy to evade the transparency and competitive requirements
of the law[6].
[1] Section 38 (1) of the Timber Resource Management Regulations, 1998 (LI
1649) as amended allows the FC to issue salvaging permits “... for the salvage
of trees from an area of land undergoing development such as road
construction, expansion of human settlement or cultivation of farms (emphasis
added)”. This is contained in FWG’s media statement challenging the
administrative abuse of salvage permits. In law, there is no exact number trees
to be awarded for salvage, however in practice if the number is reasonably high
(more than 40 by the FC’s own standards), it is prudent to rather allocate the
rights to harvest the timber through a TUC than a salvage permit to allow for
the maximum revenue to be derived from the operation.
[2] The JMRM is made up of representatives of the EU and the Government of Ghana
responsible for monitoring and reporting on the implementation of the VPA. The
concerns raised are recorded in the Aide Memoir of the JMRM held from the 4-6
July, 2011 and available at the FC website at www.fcghana.org
[3] TUC is the only type of permits allowed for medium to large scale timber
companies to harvest timber and process for trade. Permits are awarded through
competitive bidding according to the Timber Resources Management Regulation
(2003) and are expected to bring in the maximum revenue possible to government
in the exploitation of timber resources.
[4] Records on permits issued between 2009 to 2012 obtained by GW from the
Forestry Commission was used in analysis and subsequent report on abuse of
permits system in Ghana; available on http://www.globalwitness.org/ghanapermits
[5] Data on permits issued by government that was provided to GW by the
Forestry Commission, contained information on all types of permits including
salvage permits issued from 2009 to 2012. The analysis is also based on data
sourced by FWG in 2011 which showed the number of salvage permits issued by
Forestry Commission in 2009 and 2010.
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