But, regrettably,
thenon-chalant
manner in which he and
others had dealt with the
issues have tended to raise
rather than assuage passions
among many GaDangmes.
For a moment, let us look at
the key issues.
First, it is a fact that in
the past, government had
acquired several parcels of
GaDangme lands under various
legal instruments including
the Administration of Land Act
123 and the
State Lands Act
125 of
1962. It is also a
fact that compensation had
been paid for some of
the lands so acquired while
payments on others are still
outstanding.
Second, it is absolutely
true that some of the lands
acquired for stated public
purposes have been
“flagrantly diverted for
purposes other than those
stated”. Obviously,
the misapplied use of those
lands is wrong, improper,
offensive, painful and
damaging to GaDangmes and
inconsistent with the law.
The above-mentioned Acts are
therefore considered
inimical to the interests of
the GaDangme people.
Third, in the light of the
above, GaDangme urgently
calls on government to
repeal those inimical laws.
In addition, government must
return all misapplied and/or
unused lands to the allodial
owners.
Fourth, GaDangme calls for
the payment of all
outstanding compensations
due on lands so acquired.
Fifth, GaDangme calls on
government for an immediate end
to any further acquisition
of GaDangme lands for public
purposes. (See
Press Release dated
Thursday, February 8, 2001,
issued after a meeting
between all GaDangme chiefs
and the GaDangme Council at
Marina Hotel, in Dodowa).
Sixth, GaDangme urges the
repeal of the Land
Development (Protection of
Purchasers) Acts 1960, Act 2
which seeks to protect
purchasers of land who have
no lawful title to the land
but have constructed a
building on it.
GaDangme also calls for the
repeal of Legislative
Instrument, L.I. 118 on the
grounds that these two laws
are “discriminatory in form,
content and substance to the
extent that they are only
applicable to landowners in
Accra alone.” The
lawyers will deal with the
details later.
Now, let us examine some of
the comments made on the
GaDangme positions above and
see what makes sense and
what may not contain much
sense in the following
examples.
1. In
the Metro TV programme “Good
Evening Ghana” hosted by
Paul Adom- Otchere on
Thursday, May 5, 2005 an
official from the Ministry
of Lands, Forestry and Mines
very callously and gleefully
stated that actions taken by
previous governments on
GaDangme lands (and by
extension, all acquired
lands) could not be
revisited. To him,
those actions were final!
In other words, nothing can
be done about those lands
acquired no matter how
loudly and bitterly the Gas
or any others cried about
them. The Executive
Secretary of the Lands
Commission Alhaji Baryeh,
was reported to have
expressed the same view a
few days earlier.
At page 31 of the Daily
Graphic, Thursday,
April 28, Alhaji
Baryeh stated that “government
was not bound by law to
revert land which it has
acquired but has not been
used to their original
owners …(and that) the
reversion was not automatic,
since it had to be declared,
particularly when
compensations have already
been paid.” Alhaji
Baryeh further stated that
“if a land was acquired 30
years ago for a purpose in
the public interest and the
user of the land has since
changed, it cannot be
revisited and therefore be
reverted to is original
owners”.
2. I
am not a lawyer but the
above submission seems
really weird and raises a
number of questions that
ought to be carefully
considered and
satisfactorily answered.
(a) Alhaji
Baryeh does not deny the
fact that there are parcels
of acquired land which are
lying vacant and others are
not being used for the
stated public purposes.
His only problem is that
vacant lands have to be so
declared before they could
be given back to their
owners. If that is the
case, then what prevents the
government from making such
a declaration so that the
owners – the chiefs and
peoples – would have control
over these resources to
develop their respective
areas?
(b) Baryeh
also argues that once the
user of land acquired 30
years ago has changed, the
question cannot be
revisited. This is
strange because Article 3 of
the “Public Lands Ordinance”
(CAP. 134) of 1876 (Amended
by 28 of 1936, s2.) in part,
has this to say on the
Acquisition and Vesting of
lands for public purposes.
“(That) … all lands …
purchased or taken shall be
conveyed or surrendered to
and become vested in and
held by the Governor of the
Gold Coast for the time
being and his
successors in office (own
emphasis) in trust for Her
Majesty for the Public
Service of the Gold Coast.”
(Amended by 28 of 1936, s 3
and by 56 of 1950, s 3.)
In my view, the surrender of
land to and vesting of same
in the Governor (as
head of administration of
the affairs of the state at
that time) and his
successors in
office suggests
that there is never a
change of ownership of state
property. Once, it was
the Government of the Gold
Coast and now the Government
of Ghana.
(c) The
State Property and Contracts
Act, 1960 (C.A.6) Part I;
Clause 1 (I) also affirms
this notion of one
government succeeding
another. Here, this is
what the law says.
“Any property vested in the
Crown as trustee for the
Public Service of Ghana and
whether situate in or
outside Ghana shall, on the
coming into operation of
this Act, vest without any
further authority than this
section in the President in
trust for and on behalf of
the people of Ghana for the
Public Service of the
Republic of Ghana.”
(d) In
Article 257 (1) of the 1992
Constitution, we also find
that “all public lands in
Ghana shall be vested in the
President on behalf of and
in trust for, the people of
Ghana.” This means
whoever the President of
Ghana might be and therefore
there can be no change in
ownership of state property
although the individuals
holding the office may
change.
(e) Further,
in Article 257 (2) “public
lands” is defined as
including “any land which immediately
before the coming into force
of this Constitution, was
vested in the Government of
Ghana on behalf of, or in
trust for, the people of
Ghana for the public service
of Ghana, and any other land
acquired in the public
interest, for the purposes
of the Government of Ghana before, on
or after that date.”
(own emphasis)
3. The
above provision in the 1992
Constitution does NOT grant
or prescribe any time limit
when land acquired in
the public interest,
or for public
purposes may
be so considered and
therefore subject to all the
laws on such acquisitions.
In my opinion, Article 257
(2) points to one important
fact which is this.
Questions relating to lands
acquired even 100 years ago
and vested in the Government
of Ghana can still be
revisited under the 1992
Constitution. This
provision thus invalidates
Alhaji Baryeh’s submission
that actions taken 30 years
ago by previous governments
cannot be revisited with
current governments.
4. As
a layman, the legal
provisions referred to above
seem to suggest that one
government [B]
succeeds another government
[A] not only in the
enjoyment of the latter’s
rights but also it
[government B] is liable for
the duties and obligations
of government [A]. If
this argument is not
tenable, then one may ask
the following question.
On what grounds will the
present government pay
compensation to victims of
human rights abuses
perpetrated by previous
regimes as had just been
recommended by the National
Reconciliation Council since
those atrocities were not
committed by the NPP
government?
5. Still
on the question of the need
to return acquired lands not
being used for “public
purposes” or “in the public
interest” to the original
owners, the official from
the Ministry of Lands,
Forestry and Mines tried to
give a completely new, if
not absurd definition or
interpretation of the terms.
His argument seemed to
suggest that the government
could at any time decide
what to do with any acquired
lands regardless of the original
stated purpose.
In that case, one could not
talk of “misapplied” land.
This is contrary to what had
been known and accepted over
several decades throughout
the period of colonial rule
and since then.
6. Over
the years, the terms “public
interest” or “public
purposes” have been
defined as “… any right or
advantage which enures or is
intended to enure for the
benefit generally of the
whole of the people of
Ghana.” (See 1979
Constitution; page 163).
In several other legal
documents (e.g. the 1969 and
1992 Constitutions) it is
further stated, and quite
clearly that “Any such
property of whatever
description compulsorily
taken possession of, and any
interest in or right over
property of any description
compulsorily acquired in the
public interest or for
public purposes, shall be
used only in
the public interest or for
public purposes.” And
for the avoidance of doubt,
the law lays down the
conditions which must be
satisfied for any such
acquisition. These are
“in the interests of
defence, public safety,
public order, public
morality, public health,
town and country planning or
the development or
utilization as to promote
the public benefit.”
7. From
the foregoing, it is
difficult to justify the
blatant diversion of large
tracts of land acquired for
“public purposes” for
private uses. See the
area where the Star Hotel
used to be and you would
find luxurious private
residences built by private
companies or group of
private persons for private
benefit. Again, look
around Cantonments and you
would realize the “hurry”
with which estate developers
are building high-class
residences for the
advantaged few in the
society. It is obvious
that successive governments
have all abandoned the
construction of low-cost
houses for the poor and
disadvantaged in our
society. Lands
acquired ostensibly for the
purpose have been given up
for other uses and worse
still, for private gain to
the detriment of the
original owners of such
lands.
8. We
have just seen in paragraph
5 above the meaning of the
two terms “public
purposes” or “public
interest.” It
therefore seems odd that
some current government
officials might want to give
a new twist to their
meaning. It should be
obvious that any new
interpretation of the term
that is contrary to the
accepted meaning is void and
will be offensive to all
right thinking persons. Above
all, Ghanaians must note
that any disingenuous
attempts by the executive,
or the legislature or the
judiciary to change the
accepted meaning of the
terms to the detriment of
GaDangmes or other Ghanaians
in other regions with
similar problems are bound
to be fiercely resisted.
History clearly teaches us
that there is never any
peace whenever and wherever
peoples’ lands have been
forcefully taken or
deviously acquired.
This is NO threat to anyone.
It is simply a common sense
issue that is just, right
and proper and must be
respected by all.
9. In
the TV Programme of May 5,
2005, the official from the
Ministry of Lands, Forestry
and Mines stated that “after
all ONLY 13 per cent of Ga
lands had been acquired.”
He therefore wondered what
the Gas had done with the
remaining 87 percent! And,
as if to say “Amen”, the
other participant – an
official from the Home
Finance Company (HFC) –
decided to admonish Gas to “educate
their chiefs” against
the sale of the same piece
of Ga land to multiple
buyers.
10. The
issue here is not about
the size of Ga lands that
had been acquired or what
the Gas should teach their
chiefs about. Those
two statements are
insulting, to say the least,
and it would be better not
to comment further on them.
The point is that, land
acquired (whether
large or small) for
public purposes or in the
public interest which are
not being used for the
stated purposes must be
returned to the original
owners. I do believe,
this requirement refers to
lands for which due
compensation had not yet
been paid. On the
other hand, in cases where
compensation had already
been paid, the law requires
that the original owners
should be given the first
option to buy back the land.
*Fiobi Kwashie is the pen
name of Mr. E. Amatei Akuete
Cont'd..........1/2
