non-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
