9700717

CRITICALLY DISCUSS THE POSSIBLE LEGAL EFFECTS,

UNCERTAINTIES AND CHALLENGES UNDER ARTICLE
20,CLAUSES ONE TO SIX OF THE 1992 CONSTITUTION OF
GHANA.

Compulsory acquisition is the legitimate takeover or access to a

private property by the State on the pretext of public interest followed
by the payment of prompt, adequate and effective compensation. In
Ghana,the state doesn't own lands. Title in the lands is vested in
stools, skins and families. Hence, the constitutional formula
governing the means by which the state acquire property (land)
compulsorily is the provisions laid down in Article 20 of the 1992
Constitution of Ghana. In this regard,Article 20 of the Constitution
operates in conjuction with the provisions of the State Land Act
1962, Act 125 to govern the procedure and processes undertaken by
the government in its compulsory acquisition of land. The question
that arises is that of the legal effect of lands acquired compulsorily
under this constitutional provisions. It is the aim of this essay to
discuss some of the possible legal effects, the uncertainties that exist
and the resultant challenges under Article 20 of the 1992 Constitution
of Ghana.

Firstly, Lands acquired under this Act vest in the President for and on
behalf of Republic.1 This means the President exclusively controls
lands compulsorily acquired under this Act at the expense of the
previous interest holder(s). The exclusive control of the land by the
President relates to the disposal, lease or license, 2 and decisions
regarding development of the land respectively.

In addition, lands acquired under Article 20 of the 1992 Consitution

of Ghana extinguishes any interest so held in the land. Customarily,
any land has in it some interest held by their respective holders. This
interest may be allodial, usufruct, lease or tenancy. Upon the
acquisition of land under Article 20(1) of the Consitution, all these
interests with its incidents cease with immediate effect and transfers
to the State accordingly. However, this does not extinguish the right
to compensation by the interest holder(s), which is provided for in
Article 20 (2)(b) of the Constitution . Under Article 20 (1) a right or
interest in the land cannot be said to be extinguished if the laid

1
Ibid. s 1(5)
2
Ibid. s 6
procedures therein are not complied with in the acquiring the land
and the purported acquisition will be in effect invalid.

Last but not least, compulsory acquisition of land under Article 20 of

the Consitution characterize lands so acquired as public lands and
demands its use to be for public purpose. This means that the nature
and character of the land changes to be public in nature. Being public
land, it is incumbent on the Government to use the land for the public
purpose acquired for accordingly. This creates an obligation on the
Government the failure of which the interest in the land reverse to the
previous holder under Article 20 (6). Thus, the Government is under
a constitutional duty to use the land only for the public interest on
which it was acquired. Public interest is defined in article 296 of the
Constitution as any right or advantage which enures or is intended to
enure to the benefit generally of the whole of the people of Ghana.
Notwithstanding this, activities, which are incidental to the intended
purpose for which the land was acquired, have been held as not a
deviation or lawful. In Nikoi Olai Amontia v MD,Ghana
Telecom(2006 2 GMLI 69CA), the plaintiffs sued the defendants to
claim back land which had been compulsorily acquired by the
colonial government in 1945. The plaintiffs averred that the land
situate at Abubiashie,was taken by the government for the purpose of
building a cable and wireless station, but were actually building
bungalows on the land, hence rendering the compulsory acquisition
invalid in so fast as it was not used for the public purpose for which it
was acquired. The Court upon finding that the bungalows were to
house the workers of Ghana Telecom, held that the housing complex
which the plaintiffs so objected to were for the staff of Ghana
Telecom and was therefore ancillary to the core public purpose for
which the land was acquired. In essence, the land acquired must be
used purposefully and incidental activities are allowed accordingly.

Uncertainties

However, Article 20 also creates certain uncertainties in that it

remains silent on certain matters which should have been provided in
the Constitution. Thus, article 20 (2)(a) of the Constitution, fails to
define what is meant by 'prompt payment of fair and adequate
compensation'. Therefore it leaves owners of property compulsorily
acquired at the mercy of the government who may take unfair
advantage and delay in payment of compensation, eventually paying
only a paltry amount once it considers it fair.
Also, under article 20 (3) of the 1992 Constitution, what happens
where the government resettles displaced inhabitants on alternative
land which does not suit their economic wellbeing and social and
cultural values. For instance, should the government purports to
relocate a coastal community, trained as fisherman, to forest areas to
live on and make proceeds from farming, what rights of action accrue
to either parties? Can the government forcibly resettle them and
compensate them to make up for the unsuitability of the alternative
land? Can th inhabitants refuse to vacate the land seeking to be
acquired by the government and seek a declaration in court to that
effect? These are some of the uncertainties resident in article 20 of
the Constitution, which have been a major influence to the various
problems which are discussed below.

Challenges
The main prominent defect about Article 20 of the 1992 Consitution which the State Lands Act, 1962 (Act 125)

failed to remedy is the fact that payment of compensation for lands compulsorily acquired is not a condition
pre-requisite for any valid acquisition. Though payment of compensation is a prerequisite condition for a taking

of land by the government to qualify as compulsory acquisition,the payment of compensation on the face of

Article 20(2)(a) of the Constitution appears to be permissive and not mandatory. Sadly, some owners are not

even paid any compensation. Additionally, there is no specific time frame under Article 20 (2)(a) within which

the government must pay the assessed compensation. The Lands Commission on the other hand has an

unlimited time frame within which to assess the quantum of compensation payable. It can be said, albeit sadly,

that indifference of the leaders and play of politics is the driving premise behind these unfortunate events.

Moreover, the amount of compensation for lands compulsorily acquired has been very ridiculous and well below

the prevailing market values. As a result, landholders feel cheated when the appropriate compensation is not

paid by government particularly, when they see the government allocating the very land from which they were

evicted to private persons and corporate entities for commercial and industrial developments other than the

primary purpose for which their lands were acquired.

Also,per article 20 (3) of the 1992 Constitution, the government may

fail to consider the economic wellbeing and social and cultural values
of the communities who are displaced as a result of the compulsory
acquisition. This will in turn create social instability and hostile
tensions that may evolve into strifes.

Although Article 20 falls under the chapter of the 1992 Constitution

of Ghana which protects fundamental human rights and freedoms and
is entitled 'protection from deprivation of property', it's provisions
regarding compulsory acquisition has given the government a blanket
opportunity to trample upon the rights of individuals and
communities in their landed properties.

In conclusion, it is submitted that, lands compulsorily acquired under

Act 125 vests all rights or interest previously held in the Republic and
creates a legal duty concerning its usage or disposal respectively.