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STATE GOLD MINING CORPORATION INSTRUMENT, 1978 (LI 1144)

IN exercise of the powers conferred on the Supreme Military Council by sections 1, 2 and 4 of the Statutory Corporations Act, 1964 (Act 232) this Instrument is made this 17th day of February, 1978.

PART I—ESTABLISHMENT OF CORPORATION

Section 1—State Gold Mining Corporation Continued in Existence.

The State Gold Mining Corporation referred to in this Instrument as “the Corporation” existing immediately before the commencement of this instrument under the State Gold Mining corporation Instrument, 1965 (L.I. 400) shall continue to operate subject to the provisions of this Instrument as a body corporate with perpetual succession and a common seal; and may sue and be sued in its corporate name.

Section 2—Acquisition of Property by Corporation.

Where there is any hindrance to the acquisition by the Corporation of any property in pursuance of its powers under section 3 of the Statutory Corporations Act, 1964 (Act 232), the property may be acquired for the Corporation under the State Property and  Contracts Act, 1960 (C. A. 6) or as the case may be, under the State Lands Act, 1962 (Act 125) and each such Act shall apply in relation to any such acquisition with Such modifications as my be necessary to provide for the vesting of the property acquired there under in the Corporation and for the cost of such acquisition to be defrayed by the Corporation.

PART II—OBJECTS OF THE CORPORATION

Section 3—Objects of the Corporation.

(1) The objects of the Corporation are:

(a)  the mining of gold ore and other allied or associated minerals, of all grades and quality;

(b)  the carrying out of beneficiation of gold ore and allied or associated minerals;

(c)  the processing of gold ore, chemically pure gold and other by-products;

(d)  the marketing of gold and other minerals aforesaid in Ghana and outside Ghana:

(e) the carrying on of such other activities as may appear to the Corporation, to be incidental or conducive to the attainment of the said objects.

(2) In carrying out the objects specified in sub-paragraph (1) of this paragraph, the Corporation shall, as far as practicable aim at operating viable mines.

(3) Notwithstanding sub-paragraph (2) of this paragraph, the Government may request the Corporation to operate non-viable mines:

Provided that in such case, the Government shall be responsible for providing the state capital and the Corporation shall also provide the working capital requiring for the operation of such non-viable mines.

(4) The Corporation may enter into joint-ventures with foreign or indigenous investors, or   both.

Section 4—Corporation Conduct  its Affairs and Sound Commercial

(1) It shall be the duty of the Corporation to conduct its affairs on sound commercial lines, and in particular, so to carry out its functions under this Instrument as to ensure that its revenues are sufficient to produce on the fair value of its assets, a reasonable return measured by taking its net operating income as a percentage of the fair value of its fixed assets in operation plus an appropriate allowance for its working capital.

(2) In determining what constitutes a reasonable return. All pertinent economic and financial considerations shall be taken into account, including but not limited to the need for net operating income in an amount sufficient—

(a) to meet interest payments on borrowings.

(b) to provide for repayment to be made each year in respect of loans incurred by the Corporation.

(c) to provide a reasonable proportion of the funds needed for expanding the Corporation’s activities and improving its working capital.

(d) to provide reserves for replacement, expansion or other purposes if and to the extent to which the Board deems it necessary to establish such reserves, and.

(e) to make such reasonable payments to the Consolidated Fund from time to time as may be determined under paragraph 19 of this Instrument.

(3) In this paragraph, the words “net operating income” mean the amount of income remaining after submitting from total operating revenues all charges which in the normal conduct of business are proper to be charged to revenue account including provision for adequate maintenance and depreciation of assets, but before deducting interest and other charges on borrowing.

PART III—THE BOARD

Section 5—Board.

(1)  The governing body of the Corporation shall be the Board.

(2)  The Board shall consist of a Chairman and eight other members appointed but the Supreme  Military Council in this Instrument referred to as “the Council” on the recommendation of the Commissioner responsible for Mineral Resources in this Instrument referred to as the “Commissioner and shall include the Managing Director and the Deputy Managing Director both referred to in paragraph 10 of this Instrument.

Section 6—Qualifications and Tenure of Office of members of the Board.

(1) The members of the Board other than the Managing Director and the Deputy Managing Director shall hold office for three years.

(2)  No person shall be qualified to be a member of the Board who—

(a) has been sentenced to death or to a term of imprisonment exceeding twelve months without the option of a fine or has been convicted of an offence involving dishonesty or moral turpitude and has not in each case been granted a free pardon, or 

(b) having been declared as an insolvent or a bankrupt under any law for the time being in force in Ghana or any other country, is an undischarged  insolvent or bankrupt, or

(c)  is adjudged to be a person of unsound mind.

(3) Any member of the Board may resign his office by notice in writing addressed to the Commissioner and without prejudice to the general effect of sub-paragraph (2) of this paragraph, any such person may be removed from office by the Council acting in accordance with the advice of the Commissioner.

(4) Where the office of a member of the Board becomes vacant the Commissioner shall notify the Council of the occurrence of such vacancy and in the case of a member other than the Managing Director or Deputy Managing Director, where the vacancy occurs before his term of office expires under sub-paragraph (1) of this paragraph another person shall be appointed in accordance with paragraph 5 of this Instrument to hold office for the unexpired portion of that member’s term of office.

(5)  Subject to the provisions of this Instrument, where any member of the Board is incapacitated by absence from Ghana, or illness or any other sufficient cause from performing the duties of his office, the Council acting on the advice of the Commissioner may appoint another person to hold office in his place until the incapacity of that person has terminated or until the expiry of the term of office of such member, whichever first occurs.

(6)  Every member of the Board shall, on ceasing to be a member, be eligible for re-appointment.

Section 7—Remuneration of Board Members.

Any person appointed to the Board under sub-paragraph (2) of paragraph 5 of this Instrument as well as any person co-opted to the Board under paragraph 8 of this Instrument may be paid such remuneration (if any as the Board may, with the approval of the Commissioner determine in relation to him.

Section 8—Meetings of Board.

(1)  The Board shall ordinarily meet for the dispatch of business at such times and at such places as the Board may determine but shall meet at least once in every month.

(2)  A special meeting of the Board shall be called upon a written request signed by the Chairman or by a majority of the members of the Board addressed to the Secretary of the Corporation.

(3) at every meeting of the Board at which he is present, the Chairman shall preside and in his absence a member of the Board appointed by the members present from their number, shall preside.

(4) Questions proposed at a meeting of the Board shall be determined by a simple majority of member present and voting and in the event of any quality of votes the person presiding shall leave a second or casting vote.

(5)  The quorum at any meeting of the Board shall be five and shall include either the Managing Director or Deputy Managing Director.

(6)  The Board may, at any time co-opt any person or persons to act as an adviser or advisers at any of its meetings, so however, that no person so co-opted shall be entitled to vote at any such meetings on any matter for decision by the Board.

(7) The validity of any proceedings of the Board shall not be affected by any vacancy among its members or by any defect in the appointment of any of them.

(8)  Any member of the Board who has any interest in any company or undertaking with which the Corporation proposes to make any contract or who has any interest in any contract which the Corporation proposes to make shall disclose in writing to the Board the nature of his interest and shall unless the Board otherwise directs be disqualified from participating in any deliberations of the Board on the contract and shall in any case be disqualified from voting in any decision of the Board on such contract and any member who infringes the provisions of this sub-paragraph shall be liable to be removed from the Board.

PART IV—MANAGEMENT AND STAFF OF CORPORATION

Section 9—Board to be in Control of General Policy of Corporation.

The Board shall subject to the provisions of this Instrument, have general control of the management of the corporation on matters of policy.

Section 10—Managing Director and Deputy Managing Director.

(1)  The Corporation shall have a Managing Director.

(2)  The Managing Director shall be appointed by the Council acting in accordance with the advice of the Commissioner and shall hold office upon such terms and conditions as may be specified in his instrument of appointment.

(3)  Where the office of the Managing Director becomes the Board shall notify the Commissioner thereof and the Commissioner shall in turn notify the Council of the occurrence of the vacancy.

(4)  The Corporation shall also have a Deputy Managing Director.

(5) The Deputy Managing Director shall be appointed by the Council, acting in accordance with the advice of the Commissioner, and shall hold office upon such terms and conditions as may be specified in his instrument of appointment.

(6) The Deputy Managing Director shall assist the Managing Director in the performance of his functions, and shall act for the Managing director in his absence.

(7) Subject to the provisions of this Instrument, the Managing Director shall be the Chief Executive of the Corporation and shall, subject to the general control of the Board on matters of policy, be charged with direction of the day-to-day business of the Corporation and of its administration and organisation and control of all the employees of the corporation.

(8) Subject to sub-paragraph (7) of this paragraph the Managing Director may delegate to any employee of the Corporation any of his functions under this Instrument and may impose conditions with respect to the exercise of such delegated functions as he may think fit:

Provided that nothing in this sub-paragraph shall be construed so as to absolve the Managing Director from ultimate responsibility for any act done by any person in pursuance of any such delegation.

Section 11—Executive of Contract, Etc.

(1) The use of the seal of the Corporation shall be authenticated by two signatures, namely

(a)  the signature of the Managing Director or some other member of the Board authorised by the Board to authenticate the application of the seal, and

(b) the signature of the Secretary or some other officer of the Corporation authorised by the Board to act in the Secretary’s place for that purpose.

(2)  The Corporation may by instrument in writing under its common seal empower any person either generally or in respect of any specified matters as its attorney, to execute deeds on its behalf in any place not situated in Ghana; and every deed signed by such attorney on behalf of the Corporation and under his seal, shall be binding on the Corporation and have the same effect as if it were under the common seal of the Corporation.

(3) Any instrument or contract which, if executed or entered into by a person other than a body corporate would not require to be under seal, may be executed or entered into on behalf of the Corporation by the Managing Director or any member of the Board if such person has previously been authorised by a resolution of the Board to execute or enter into that particular instrument or contract:

Provided that if the Corporation thinks fit it may be writing under its common seal appoint any person outside Ghana as agent to execute or enter into the instrument or contract and the instrument or contract if executed or entered into on behalf of the Corporation shall have effect as if it had been duly executed or entered into as prescribed for the purposes of this sub-paragraph.

(4) Every document purporting to be an instrument executed or issued by or on behalf of the Corporation and to be—

(a) sealed with the common seal of the Corporation authenticated in the manner provided by sub-paragraph (1) of this paragraph, or

(b) signed by and under the seal of a person appointed as attorney under sub-paragraph (20 of this paragraph, or

(c) signed by the Managing Director or by a member of the Board or other person authorised in accordance with sub-paragraph (3) of this paragraph to act for that purpose.

Shall be deemed to be so executed or issued until the contrary is shown.

Section 12—Staff of the Corporation.

(1)  The Corporation may from time to time engage such employees as may be necessary for the proper and efficient conduct of the business and functions of the Corporation.

(2) The Corporation may also engage the services of such consultants and advisors as the Board may upon the recommendations of the Managing Director determine.

(3) The employees of the Corporation shall be appointed by the Board acting in consultation with the Public Services Commission.

(4)  Notwithstanding sub-paragraph (3) of this paragraph the Board may with regard to such category of employees as it may determine delegate to the Managing Director the power to appoint these employees.

(5) The employees, consultants and advisers of the Corporation shall be engaged on such terms and conditions as the Board may on the recommendations of the Managing Director determine.

(6) Public officers may be transferred or seconded to the Corporation or may otherwise give assistance thereto.

Section 13—Secretary of the Corporation.

(1) The Corporation shall have an officer to be designated as the Secretary of the Corporation.

(2) The Secretary shall act as Secretary to the Board and shall, subject to the directions of the Board, arrange the business for and cause to be recorded and kept minutes of all meetings of the Board.

(3) The Secretary shall also perform such functions as the Board may by writing direct or as the Managing Director may by writing delegate to him and shall be assisted in his functions by such of the staff of the Corporation as the board may on the recommendations of the Managing Director direct.

Section 14—Internal Auditor.

(1) The Corporation shall have an Internal

(2) Subject to the provision of this Instrument, the Internal Auditor shall be responsible to the Managing Director for the performance of his functions.

(3) As part of his functions under this Instrument the Internal Auditor shall, at intervals of three months, prepare a report on the internal audit work carried out by him during the period of three months immediately preceding the preparation of the report and submit the report to the Managing Director.

(4) Without prejudice to the general effect of sub-paragraph (3) of this paragraph, the Internal Auditor shall make in each report such observations as appear to him necessary to the conduct of the financial affairs of the Corporation during the period to which the report relates.

(5)  The Internal Auditor shall send a copy of each report prepared by him under this paragraph to

the Commissioner and also to each of the following :—

the Commissioner responsible for Finance,

the Auditor-General, and

the Chairman and each of the other members of the Board.

Section 15—Board of Members not to Sponsor Appointment.

No member of the Board shall personally sponsor any application for the employment of any person under this Part of this Instrument and any member who infringes the provisions of this paragraph shall be liable to be removed from the Board.

PART V—FINANCIAL PROVISIONS.

Section 16—Capital Lands Funds of Corporation.

The Government may provide to the Corporation as working capital and also as moneys required for carrying out the functions of the Corporation such sums as the Commissioner may after consultation with the Council agree, being sums requested by the Board from the Government.

Section 17—Staff Welfare Fund.

(1)  The Corporation shall have a staff welfare fund.

(2) At the end of each financial year, the Corporation shall transfer to the staff  welfare fund such sum, not exceeding five per centum of the net profits of the Corporation, as the Board may determine.

(3)  The Corporation may, with the approval of the Commissioner, use the staff welfare fund for the provision of staff welfare facilities such as canteens.  Low interest bearing staff welfare loans and for other purposes aimed at enhancing the welfare of the staff of the Corporation.

(4)  The operation of the staff welfare fund shall be subject to such specific rules and regulations as may be made by the Board.

Section 18—Depreciation Fund.

(1) The Corporation shall have a depreciation fund and for that purpose the Corporation shall have a depreciation fund and for that purpose the Corporation shall open a Depreciation Reserve Account with the Bank of Ghana.

(2)  At the end of each financial year, the Corporation shall transfer to the credit of the Depreciation Reserve Account all amounts charged to profit and loss account in respect of depreciation for buildings, plant and equipment, fixtures and other fixed assets.

(3) Amount so transferred to the Depreciation Reserve Account shall be utilised only to replace fixed assets and equipment  which are worn out or have become obsolete.

(4) Expenditure in respect of current repairs and in respect of purchases of spare parts shall not be met out of the Depreciation Reserve Account but shall be charged to the income and expenditure account of the Corporation for the financial year during which the expenditure is incurred.

Section 19—Corporation to Pay Sums into Consolidated Fund.

Subject to paragraph 4 of this Instrument at the end of each financial year, after the Corporation has made provision for bad and doubtful debts, depreciation of assets, contributions to staff and superannuation funds and for other contingencies if any and after appropriation has been made to the staff  welfare fund under paragraph 17 of this Instrument, such part of the profits of the Corporation remaining as the Commissioner after a consultation with the Board and with the Commissioner responsible for Finance may by writing direct shall be paid into the consolidated Fund.

Section 20—Borrowing Powers.

(1)  The Corporation may obtain loans and other credit facilities, on the guarantee of the Government from the National Investment Bank or from such other Bank as the Commissioner and the Commissioner responsible for Finance may approve.

(2)  Apart from the powers of the Corporation under sub-paragraph (1) of this paragraph, the Corporation may, with the prior approval of the Commissioner and the Commissioner responsible for Finance borrow money from any other source.

(3)  For the purpose of any technical arrangement in connection with the raising of any loan under sub-paragraph (2) of this paragraph, the Corporation shall, if the National Investment Bank agrees, use the services of the Bank.

(4)  The Corporation may borrow temporarily by way of overdraft or otherwise, such sums as it may require for meeting its obligations or discharging its functions.

(5) The Commissioner responsible for Finance may on behalf of the Government, guarantee the performance of any obligation or undertaking by the Corporation under this paragraph.

(6) The Commissioner responsible for Finance may from time to time prescribe the maximum sums which the Corporation may borrow under sub-paragraph (1) or (2) of this paragraph.

Section 21—Corporation to Keep Proper Books of Account.

The Corporation shall keep proper books of account and proper records in relation thereto and Account books and records of the Corporation shall be in such form as the Auditor-General may approve.

Section 22—Financial Year of Corporation.

The financial year of the Corporation shall end on the 30th day of June in each year.

Section 23—Audit.

(1) The books and accounts of the Corporation shall each year be audited by the Auditor-General or an auditor appointed by him.

(2) The Corporation shall pay in respect of such audit such fee (if any) as the Auditor-General and the Board may agree or in the case of failure to agree, such fee as the Commissioner may prescribe.

(3) It shall be the duty of the Board as soon as possible upon receiving the report of the Auditor-General under this paragraph, to forward a copy of such report to the Commissioner.

(4) The Commissioner shall as soon as practicable upon receipt thereof, cause to be laid before the Council a copy of the Auditor –General’s report forwarded to him under this paragraph.

Section 24—Annual Report, etc.

(1)  The Corporation shall. As soon as possible after the expiration of each financial year but within three months after the termination of that financial year, submit to the Commissioner an annual report dealing generally with the activities and operations of the Corporation within that year which shall, without prejudice to the generality of the foregoing include—

(a)  a copy of the audited accounts of the Corporation together with the Auditor-General’s report thereon,

(b)  each report submitted in relation to that financial year by the Internal Auditor under paragraph 14 of this Instrument.

(c)  A statement of all directions given by the Commissioner to the Corporation under paragraph  25 of this Instrument within that year,

(d) Such other information as the Commissioner may by writing request.

(2)  A copy of the annual report of the Corporation shall also be sent by the Corporation to the Commissioner responsible for Finance and the Head of the Central Bureau of Statistics.

(3) The Commissioner shall as soon as possible after receiving the annual report of the Corporation, cause the report to be laid before the Council.

(4) The Corporation shall also submit to the Commissioner such other reports on its operations as the Commissioner may by writing reasonably request from time to time.

Section 25—Commissioner To Give General Direction.

Subject to the provisions of paragraph 4 of this Instrument (which requires the Corporation to operate on sound commercial lines), the Commissioner may give general directions in writing to the Corporation on matters of policy and the Corporation shall be bound to comply with such directions.

Section 26—Bye-laws and Other Instruments.

(1)  The Board may make bye-laws for the purpose of carrying into effect the provisions and principles of this Instrument and regulating any matter falling within the scope of the functions of the Corporation.

(2)  Without prejudice to the general effect of sub-paragraph (1) of this paragraph, the Board may, subject to the provisions of the Social Security Decree, 1972 (N.R.C.D. 127) make bye-laws or other instruments providing for the conditions of service of the staff of the Corporation.

Section 27—Interpretation.

In this Instrument, unless the context otherwise requires:

“Commissioner” means the Commissioner responsible for Mineral Resources;

“Council” means the Supreme Military Council.

Section 28—Revocation and Saving.

(1)  The following Instruments are hereby revoked:—

Instrument of Incorporation of the State Gold Mining Corporation (L.I. 400);

State Gold Mining Corporation (Amendment) Instrument, 1967 (L.I. 569).

State Gold Mining Corporation (Amendment) Instrument, 1974 (L.I. 874).

(2) Notwithstanding the revocation of the Instrument of Corporation of the Sate Gold Mining Corporation, 1965 (L.I. 400.) as amended, every bye-law or other instrument made thereunder and in force immediately before the commencement of this Instrument, shall until altered, revoked or modified, continue in force as if made under the corresponding provisions of this Instrument.

GENERAL I. K. ACHEAMPONG

Chairman of the Supreme Military Council

Date of Gazette Notification: 23rd June, 1978.