Fisheries crimes and prosecution: Has Ghana’s Alternative Dispute Resolution (ADR) proven effective?
In Ghana, there are concerns about the continuous depletion of the fish stock with fishing boats often returning from sea empty, a situation which can be attributed to illegal fishing activities, as well as over-capacity across the industrial trawl and artisanal sectors.
Illegalities are thriving in the sector, partly because of the lack of effective monitoring and enforcement of the regulations. The arrest and prosecution of persons who indulge in such illegalities remain a major challenge.
Rampant IUU on the sea
More than 10 per cent of Ghana’s population is engaged in the fisheries sector. The Ministry of Fisheries and Aquaculture Development (MoFAD), says the majority of those dependent on fisheries are artisanal fisher-folks and fishmongers.
However, Ghana’s fisheries sector is at risk due to widespread illegal, unreported and unregulated (IUU) fishing which spans indiscriminate use of chemicals and explosives by canoe fishermen to increase fish catch and light fishing by both small-scale and tuna vessels.
Saiko is a severely destructive form of illegal fishing, where industrial trawlers target the staple catch of artisanal fishers and sell this fish back to local coastal communities at a profit. This illegal activity continues unabated, threatening jobs and food security thus endangering Ghana’s economy.
Saiko catches sold in 2017 alone, according to an Environmental Justice Foundation (EJF) report, amounted to between $40.6 and $50.7 million when sold at sea and to between $52.7 and $81.1 million when sold at the landing site.
Fisheries arrests and prosecutions
The Fisheries Act 625 of 2002, amended in 2014 by the Fisheries (Amendment) Act 880, and Fisheries Regulation (L.I 1968) of 2010 are the major tools in place to regulate the fisheries industry in Ghana.
Several actors and institutions such as the Fisheries Commission, Ghana Navy, Ghana Police Service, as well as the Ministry of Justice and Attorney-General are involved in ensuring successful prosecution of fisheries related crimes.
According to a baseline analysis of Fisheries Arrests and Prosecution in the Western and Eastern Commands by the USAID Sustainable Fisheries Management Project (SFMP) in 2015, many fisheries offenses end up being settled out of court. But generally, it said prosecution of fisheries offenses in Ghana are largely unsuccessful mainly due to weaknesses in the prosecutorial system for offenders.
In April 2017, a World Bank Mission identified issues such as a large gap between the number of offenses and the number of prosecutions, inconsistent prosecution amounts, provisions of penalty waivers without clear reasons, license renewal for offenders, irregular infractions reporting and follow-up, and high proportion of uncollected fines.
A 2019 USAID Political Economy Analysis (PEA) on Advancing reforms to promote sustainable management of Ghana’s small pelagic fisheries also noted that front companies for Chinese-operated industrial trawlers are owned by politically influential, yet unnamed, Ghanaians, whose interventions with legal and regulatory authorities allow industrial trawlers to engage in transshipment of saiko and other forms of IUU fishing.
Between 2007 to 2015, a total of 199 fishing vessels were arrested for various fishery offenses in Ghana, according to the 2015 USAID report.
Rough figures from the Western Command of the Marine Police indicate that about 11 artisanal canoes and semi-industrial vessels were arrested in 2018 for various fisheries crimes with some opting for out of court settlement. Although there were no arrests of industrial trawlers at sea in 2018, infractions were detected by fisheries observers on board the vessels and the cases settled.
In 2019, authorities arrested five industrial trawl vessels. All five cases went through the out of court settlement procedure and fines paid with the exception of the $1 million fine imposed on the vessel Lu Rong Yuan Yu 956 which defaulted in payment.
Currently, according to the Marine Police, four industrial trawler cases are pending in court at the Western Command including the Lu Rong Yuan Yu 956 and 920.
This data is incomplete because the Fisheries Commission was unable to share this information and therefore it only represents a partial picture of the fisheries arrest and prosecutions for the years reviewed for the purpose of this article.
Ghana’s ADR system
The Fisheries Act stipulates the establishment of an out of court settlement procedure known as the Alternative Dispute Resolution (ADR).
The Committee is made up of representatives of the Marine Police, the Navy, Fisheries Commission (FC) and the Attorney General. There are two such committees, one in Tema and the other in Takoradi. By the Act, all fisheries crimes may be settled through ADR. As per section 116 of Act 625, the committee may only impose the minimum fines and nothing below the minimum.
A source at the Marine Police Unit explained how the ADR system works. When an offender is arrested, the person is first processed for court where he/she would have the option to opt for an out of court settlement. The offender would only be arraigned before the ADR committee after the court has granted the plea. The source added that as soon as an offender asks for an out of court settlement, it indicates he/she is guilty and as such he/she only goes to the ADR committee to mitigate the sanctions thereof.
Mr. Christian Nii Aponsah is the Head of the Monitoring, Control and Surveillance (MCS) Division of the Fisheries Commission. He described the ADR system as “perfect” if it is allowed to work.
The Marine Police sources say that the system is very good on paper but not effective in practice. To them, the system is often manipulated to give small sanctions to offenders and more so, their decisions were sometimes disrespected.
“If you are arrested and you are supposed to pay a fine, you have to pay the fine. But in some instances, the people are fined and they do not pay the fines”, the source stated.
Mr. Aponsah acknowledged that at times, offenders refuse to pay the fines imposed having pleaded guilty before the ADR committee. He was, however, quick to add that it was not always deliberate but, at times, the fines were too huge to pay.
“Some do not pay because they do not have the moneydue to the huge amount involved. We assume that they make so much money but at times they do not make much. They spend a lot on fuel, servicing, getting the crew and the crew payment,” he said.
According to Mr. Aponsah, the Fisheries Commission has had to withdraw the licenses of many trawlers because of their inability to pay the fines.
“What is happening now is that some of them have been banned, we do not give them license because once you have not paid, it shows you are not ready,” he said, stating that the licenses of many vessels would be withdrawn.
“There is another list of vessels whose licenses are going to be withdrawn so they will not be able to operate in 2021. They are more than ten,” he added.
“The compounding of the offense (i.e pleading guilty) is of no effect if the full amount of the penalty is not deposited with the Fisheries Commission within 30 days of the decision and the matter sent to court,” the Marine Police source stressed.
When asked if the punishments as outlined in the Fisheries Act were deterrent enough to the perpetrators, a source at the prosecution unit of the Marine Police responded in the affirmative. “Yes, it is deterrent not only to the industrial trawlers but when you come to artisanal, some of them have been fined five thousand dollars and even more, and there are instances where the law prescribes imprisonment”.
The Weaknesses in the ADR system
Though not clearly outlined in the Fisheries Act, the Marine Police sources spoke about the practice where successive Fisheries Ministers have created some discretionary powers to vary the decision of the ADR.
By this, the sources explained that an ADR committee could fine a fishing vessel one million dollars and the Minister could scale it down to an amount he/she thinks is feasible. The legal basis for this Ministerial discretion is unclear.
Professor Wisdom Akpalu, a Fisheries Economist and Director of the Environment and Natural Resource Research Initiative (ENRRI-EFD Ghana), also spoke against this discretionary power and wondered why one person should be deciding what should be paid to the state.
“We are observing trawlers violating all these regulations and nothing happens to them. Even when they are caught, the punishment is so low for them since these cases are not settled in court but through an alternative dispute resolution arrangement where these cases are arbitrated behind closed doors. ”
“The Minister in charge of fisheries has that prerogative in deciding what these trawlers should pay to the country and why should that be the case?” He asked in frustration.
The 2015 USAID report noted that some fines imposed by the ADR committee were not paid in full and in some cases the Minister of Fisheries accepted less than the amount imposed which confirmed the concern raised by the Marine Police.
For instance, an industrial trawler by name Jin Hai 608 (AF 745) belonging to Itavan Ventures was arrested on April 12, 2015 for taking on board undersized fish. The case was settled out of court on April 23, 2015, where the offenders were expected to pay a fine of GH¢38,799 and $250,000. However, the culprit rather paid GH¢200,000 as accepted by the Minister of Fisheries.
In another instance, an industrial trawler, Lu Rong Yuan Yu 959 (AF 741), belonging to Rockpoint Co. Ltd was arrested on 11th April, 2015 for taking on board undersized fish. Instead of paying a fine of GH¢47,980 & $250,000, by the out-of-court agreement, the culprit paid GH¢200,000 as accepted by the Minister of Fisheries.
All the above happened in spite of the fact that the 2014 Fisheries Amendment Act, which imposes a minimum fine of $1 million for taking on board undersized fish, had come into force. However, the amount imposed by the ADR committee was significantly lower than what is stipulated in the 2014 Fisheries Amendment Act.
“I think if all these things are scrapped and amended in the law such that all cases are made to principally go to the court for the court to adjudicate on them, we will not be having these problems, ” the Marine Police source said.
The Marine Police source believed that, due to the weakness in the system, the Lu Rong Yuan Yu 956, which failed to pay a $1 million fine imposed in October 2019, was re-licensed to continue fishing and was re-arrested.
According to the Marine Police source, in the second arrest in May 2020, lawyers of the Lu Rong Yuan Yu 956 vessel asked for an out of court settlement which was granted.
This, the source claimed, was against the backdrop that the settlement committee had been dissolved since the beginning of the year 2020. “In open court, the judge was told there is no ADR committee but still went ahead to permit that,” the source said.
Interestingly, Mr. Michael Arthur Dadzie, Executive Director of the Fisheries Commission, insists that there is an ADR committee in place which had been reconstituted since September 2020. This is about three months after the second arrest of the Lu Rong Yuan Yu 956 vessel.
“Yes, there is an ADR committee and it’s headed by the Chief State Attorney. We reconstituted the committee about two months ago” Mr. Dadzie said when asked if there was an ADR committee in place. We dissolved the old one and reconstituted it. We have representatives from the Marine Police, Ghana Navy, Fisheries Commission as well as the Police investigator and prosecutor on it,” he added.
But, the source at the Marine Police insisted that they have not been involved or informed that the committee is reconstituted.
“The Navy have their representative and none of us is taking part in it. So, who and who are on it?” He quizzed when told that according to the FC, there was an existing ADR committee.
Speaking specifically on why Lu Rong Yuan Yu 956 vessel was re-licensed to continue fishing, despite their refusal to pay the $1 million fine, Mr. Nii Aponsah of the Monitoring, Control and Surveillance (MCS) Division of the Fisheries Commission, said it was an oversight from the commission and that their license has since been withdrawn.
“We did not realise it early so when we realised it, we withdrew their licenses and they are no more working. If you go to the port now, you will see the vessel parked there, “says Mr. Nii Aponsah.
But reacting to why vessels get re-licensed even after failing to pay fines imposed by the ADR committee, Mr. Arthur Dadzie says sometimes it is purely a matter of law, indicating that it was the court that asked that they should be re-licensed.
The Ripple Effect
The Marine Police sources believed that the ineffectiveness of the ADR system erodes confidence in the law enforcement agencies and the whole judicial process.
“It must be noted that fisheries entail a lot of stakeholders, while we are pursuing some people who are to pay heavy fines, we are also pursuing artisanal fishers too. If you go and catch them, they will make reference to the fact that industrial trawlers who flout the law were defaulting in payment. It makes other people recalcitrant and continue to do what they are doing,” the source indicated.
“If somebody goes out there and commits an offense, the person is arrested with all the risks involved on the sea and investigations conducted only for reduced sanctions. It demoralizes everybody fighting for the right thing to be done.”
It is clear that the decisions of the ADR committee are not being respected as they should and it is also subject to manipulation. Thus, Prof Akpalu and the sources at the Marine Police want the ADR system strengthened devoid of political influence. They have called for the establishment of maritime or fisheries courts along the coastal belt of the country to specifically adjudicate fisheries cases. Having a marine or fisheries court, they believed would ensure that the ADR system was efficient in delivering on its mandate.
Again, they want systems to be put in place to preclude the Fisheries Minister from exercising any discretionary powers to accept fines below the minimum stipulated in the law.
“ADR committee can fine a fishing vessel $1 million and the Minister can scale it down to an amount he/she thinks is feasible. All these things must be checked,” the Marine Police source said.
When we make arrest and there is a specialized court with trained judges, registrars and prosecutors, we should not have the problem and frustration that we are going through,” the source added.
“People must be made to face the full rigour of the law. Either that or sooner or later, there will be no fish there to catch and the over three million people who depend on the sea will add to the already existing unemployment situation”.
Furthermore, the source recommends for the security services and the FC to be strengthened to ensure the enforcement of the law. The Marine Police, for instance, must be fully resourced with the right equipment and more personnel, while calling for the establishment of additional Marine Police commands along the coast.
Mr. Nii Aponsah of the MCS Division of the FC also says extra efforts have to be put in to ensure that when offenders are fined, they pay. Again, he said the FC should be bold enough to withdraw the license of offenders when they refuse to pay the fines.
The USAID Political Economy Analysis called for support for the FC in strengthening prosecution of fisheries crime by reforming the use of the ADR mechanism and to require final settlement conditions to be returned to the court to ensure that they comply with judicial guidelines.
By Afedzi Abdullah