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CLOSED, BUT NOT CLOSED FOR FISHI DECLARING : Declaring The 2024 Fishing Closed Season in Accordance With Section 84 (1) Of The Fisheries Act, 2002 (Act 625)

Ghana, in 2016, took a significant step towards ensuring sustainable fishing with its implementation of the fishing closed season. At the time, the ban was limited to the industrial sector fisheries. It was expanded to cover the artisanal sector fisheries in 2019. Since then, closed seasons have consistently been imposed every year, except in 2020 when the global pandemic COVID-19 turned the world upside down.

When a fishing closed season is in place, it signifies a ban or restriction on fishing activities during that period of closure. Section 140 of the Fisheries Act, 2002 (Act 625), clearly states that during any such period, there is a ban on fishing activities in respect of the type of fish, area, zone, method of capture or the parameters specified in the notice. Engaging in any fishing activity when a closed season is in force is an offence. To enforce this ban and prevent any offender from escaping punishment, it is important to ensure that the declaration of the closed season conforms with the Fisheries Act.

The harsh reality, however, is that the implementation of fishing closed seasons since 2016 has failed to comply with statutory requirements. The successful prosecution of a fisher caught breaking the fishing ban largely depends on the due publication of the notice of declaration in the Gazette. It is against this background that due process must be followed to avoid the mistakes of the past in implementing the 2024 closed season.

Importance of Fishing Closed Seasons

 The closed season imposes a ban, restriction or prohibition on fishing during a particular time or identified periods of the year, within a defined area or possibly catching a species of fish. Such measures are necessary to manage fisheries sustainably. Closed seasons are not only mandated measures in fisheries management. They form part of other management measures for natural resource conservation.

In fisheries management, closed seasons allow reproduction and growth of fishes before harvest and as such may be declared when spawning is known to occur. The goal of this management measure is to help rebuild depleted fish stocks and maximize the spawning potential of the fish stocks. Terms such as “biological rest period” or “no harvesting period” aptly describe and underline the function of a closed season in any fishery. The imposition of a closed season is increasingly becoming a preferred management strategy to conserve declining fishery resources. The Marine Fisheries Management Plan 2022-2026 seeks to rebuild fish stocks by opting for annual closed seasons to align fishing efforts with estimated sustainable annual levels.

Monitoring reports of the relevant stakeholders point to general compliance by fishers. Biological assessments after closed seasons have also been positive which is indeed refreshing! For instance, it was observed in the biological assessment conducted after the 2022 closed season that landings of small pelagics (round sardinella and anchovy) increased remarkably. Also, prior to the observance of that very year’s closed season, there was an incredibly higher proportion of immature gonads of both sexes in sampled landings. However, the proportion of immature gonads strikingly decreased while that of matured gonads increased after the closed season – an indication that the closed season had allowed more gonads to mature.

The implementation of the closed season in Ghana has largely been successful and has drawn strong support and advocacy for a regional fishing closed season. The impending 2024 closed season is expected to be implemented with the participation of Togo, Côte d’Ivoire, Liberia and Benin. Since ‘fish know no political or national boundaries’, it is indisputable that a regional fishing closed season would immensely contribute to effective sustainable fisheries management.

Authority to Declare Closed Seasons

The closed season usually commences with the issuance of circulars, notices, and letters to f isher associations and the public. With a key in hand at the beach, the Minister of Fisheries and Aquaculture Development (MoFAD) symbolically locks the sea on the first day of the closed season. Fishers and the industry have generally respected and complied with these circulars, notices and gestures that mimic the declaration of closed seasons under the Fisheries Act 2002 (Act 625).

Section 84 of the Fisheries Act, which provides the legal authority to impose a closed season contemplates the publication of the notice in the Gazette, declaring the closed season. To declare a fishing closed season, the Fisheries Commission qua Commission must necessarily publish the notice declaring the closed season in the Gazette.

It is worth noting in section 84(1) of the Fisheries Act that there are three cardinal requirements for the imposition or declaration of a closed season – the Commission has the singular responsibility to declare a closed season, the closed season is declared by notice in the Gazette, and the duration and applicable fishery to which the closed season affects must be specified in the Gazette notification. Notwithstanding these requirements, section 84(3) of the Fisheries Act recognizes a closed season declared by an international body to which Ghana is a member to be binding as a closed season under the Fisheries Act.

Section 84 of the Fisheries Act having unambiguously specified how the fishing closed season may be declared, there cannot and should be no excuse for deviation from the method or manner things must be done.

The received learning in law is that where a statute provides the manner of doing something, that thing may only be done in the specified manner. It is therefore not a good defence to either equate or substitute the letters, circulars and notices of the Ministry and/or Commission for the required Gazette notification. The fact that it has been indicated in the Marine Fisheries Management Plan 2022 – 2026 or previous marine fisheries management plans that fishing closed seasons would be implemented should not and does not obviate the need for the Gazette notification. Besides, the Marine Fisheries Management Plan is distinct from the Gazette!

One may be tempted to argue that since the Marine Fisheries Management Plan (which among others indicates that a closed season would be declared) is also published in the Gazette in accordance with section 44 (4) of the Fisheries Act, then that dispenses with the need for a separate Gazette notification of the closed season. This argument is flawed because it implies that a provision of the Fisheries Act is redundant or surplus. The duty to publish the Gazette notification of the closed season is specifically provided in another part of the Fisheries Act, and, in statutory interpretation, there is a presumption against redundancy or surplusage. That is why the Gazette notification of the Marine Fisheries Management Plan does not dispense with the Gazette notification of the closed season.

The significance of the letters, circulars and notices to fishers, industry and the public may be taken to be the publicization of the closed season. Section 84 (2) of the Fisheries Act requires that the declaration should be given reasonable publicity and where possible given in advance of the commencement of the closed season. It is therefore important to appreciate that without the Commission’s Gazette notification of the declaration of the closed season, there is no legal ban on fishing.

Punishment for Fishing During Closed Season

Section 84(4) of the Fisheries Act creates an offence for fishing during a close season but there is a caveat – the closed season must be “declared in accordance with” section 84(1) of the Fisheries Act (i.e. the Commission’s notice in the Gazette declaring the closed season).

This emphasizes that a closed season that is not declared consistent with section 84(1) of the Fisheries Act fails to be a closed season and therefore a person cannot be liable for the offence of fishing during a closed season. If the closed season is declared in accordance with section 84(1) of the Fisheries Act, any person convicted for breaking the fishing ban can be sentenced to a fine of not less than US$500,000 and not more than US$2,000,000 in the case of local industrial or semi-industrial fishing vessel, or a foreign fishing vessel or to a fine of 100 penalty units (GHS1,200.00) and not more than 500 penalty units (GHS6,000.00) in any other case. In addition to the fine, the catch, fishing gear or vessel may also be forfeited to the State.

An Opportunity to do it Right in the 2024 Closed Season

 It should be noted that since the start of the implementation of closed seasons, the Commission has yet to publish notification in the Gazette declaring closed seasons as required by section 84 of the Fisheries Act. The Commission has a duty to notify the public through the Gazette when it implements the closed season. The Gazette is the Official Government Bulletin and notification in the Gazette is deemed public notice.

To give the closed season legitimacy and to enforce fishing bans by punishing any erring fisher, publication in the Gazette and by the Commission is sine quo non. Since the closed season is yet to commence, the Commission has the opportunity to publish the notice in the Gazette and it must be done immediately. The errors of the past must be rectified in this year’s implementation of the closed season.