The right to property and compulsory land acquisition in Ghana: an analysis of the laws and policies towards greater protection PDF

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THE RIGHT TO PROPERTY AND COMPULSORY LAND ACQUISITION IN GHANA: AN ANALYSIS OF THE LAWS AND POLICIES TOWARDS GREATER PROTECTION. A DISSERTATION SUBMITTED TO THE CENTRE FOR HUMAN RIGHTS, FACULTY OF LAW, UNIVERSITY OF PRETORIA IN PARTIAL FULFILMENT OF THE REQUIREMENTS OF THE DEGREE OF MASTER OF LAWS (...

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THE RIGHT TO PROPERTY AND COMPULSORY LAND ACQUISITION IN GHANA: AN ANALYSIS OF THE LAWS AND POLICIES TOWARDS GREATER PROTECTION.

A DISSERTATION SUBMITTED TO THE CENTRE FOR HUMAN RIGHTS, FACULTY OF LAW, UNIVERSITY OF PRETORIA IN PARTIAL FULFILMENT OF THE REQUIREMENTS OF THE DEGREE OF MASTER OF LAWS (LLM) IN HUMAN RIGHTS AND DEMOCRATISATION IN AFRICA

BY MICHAEL GYAN NYARKO STUDENT NUMBER: 04631537

PREPARED UNDER THE SUPERVISION OF DR ROSE NAKAYI

SCHOOL OF LAW, MAKERERE UNIVERSITY, UGANDA 30 OCTOBER 2014

PLAGIARISM DECLARATION

I, student number 04631537, do hereby declare:

1. That I understand what plagiarism entails and am aware of the University’s policy in this regard.

2. That this dissertation is my own, original work. Where someone’s work has been used (whether from a printed source, the internet or any other source) due acknowledgment has been given and reference made according to the requirements of the Faculty of Law.

3. That I did not make use of another student’s work and submit it as my own.

4. That I did not allow anyone to copy my work with the aim of presenting it as his or her own work.

SIGNATURE: MGN

DATE: 30 October 2014

i

DEDICATION

To Tawiah, Afua and Kwabena – I couldn’t have wished for a better family in this life. This dissertation is also dedicated to my uncle Frempong, for believing in me.

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ACKNOWLEDGMENT A big thank you to the Centre for Human Rights, University of Pretoria for giving me this opportunity to be part of a truly live changing programme.

To the staff of and management of the School of Law, Makerere University, thank you for always going the extra mile to make our stay in Kampala a memorable one.

My sincere gratitude to Dr Rose Nakayi, for supervising my work and responding to my usually late submissions with such promptness despite your own tight schedules. I couldn’t have done this without your guidance.

Finally, to Drishty for making this the best year of my life and keeping me motivated when I was distracted.

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LIST OF ABBREVIATIONS ACHR

American Convention on Human Rights

ACHPR

African Charter on Human and Peoples’ Rights

ASEAN

Association of Southeast Asian Nations

CEDAW

Convention on the Elimination of All forms of Discrimination Against Women

CRPD

Convention on the Rights of Persons with Disabilities

FAO

Food and Agricultural Organisation

ECHR

European Convention on Human Rights

HRC

Human Rights Committee

ICCPR

International Covenant on Civil and Political Rights

ICERD

International Convention on the Elimination of All Forms of Racial Discrimination

ICESCR

ICESCR International Covenant on Economic, Social and Cultural Rights

ICJ

International Court of Justice

ILO

International Labour Organisation

UN

United Nations

UNGA

United Nations General Assembly

iv

TABLE OF CONTENTS COVER PAGE DECLARATION

i

DEDICATION

ii

ACKNOWLEDGMENT

iii

LIST OF ABBREVIATIONS

iv

TABLE OF CONTENTS

v

CHAPTER ONE: INTRODUCTION

1

1.1

Background to the study

1

1.2

Problem statement

4

1.3

Research objectives

6

1.4

Research questions

6

1.5

Significance of the study

7

1.6

Preliminary literature review

7

1.7

Research methodology

11

1.8

Limitations of study

11

1.9

Outline of chapters

12

CHAPTER

TWO:

INTERNATIONAL

LEGAL

FRAMEWORK

FOR

THE

PROTECTION OF THE RIGHT TO PROPERTY

14

2.0

Introduction

14

2.1

International level

14

2.1.1

The Universal Declaration of Human Rights and the right to property

14

2.1.2

The Covenants

17

2.1.3

Group specific treaties

18

2.1.4

The right to property as customary international law

20

2.2

Regional level

23

2.2.1

African human rights system

25

2.3

Conclusion

28

CHAPTER THREE: THE RIGHT TO PROPERTY AND COMPULSORY LAND

v

ACQUISITION IN GHANA

30

3.0

Introduction

30

3.1

Compulsory land acquisition: Emerging international best practice

30

3.1.1

Voluntary Guidelines

32

3.2

Human rights based approach to development

33

3.3

Brief overview of land tenure system of Ghana

34

3.4

Legislative framework

36

3.4.1

The Constitution of Ghana

37

3.4.2

State Lands Act, 1992 (Act 125)

39

3.4.3

Administration of Lands Act 1962 (Act 123)

44

3.4.4

Minerals and Mining Act, 2006 (Act 703)

46

3.5

Policy framework

48

3.5.1

National Land Policy (1999)

48

3.6

Conclusion

49

CHAPTER FOUR: CONCLUSION AND RECOMMENDATIONS

50

4.1

Summary of finding and conclusion

50

4.1.1

Legislative framework

51

4.1.2

Policy framework

51

4.2

Recommendations

52

4.2.1

International community

52

4.2.2

African Commission

53

4.2.3

Government of Ghana

53

4.2.3.1 Strengthening regulatory framework

53

4.2.3.2 Capacity building

54

4.2.3.3 Legally recognizing customary land rights

54

4.3

Investors

55

4.4

Civil society

55

BIBLIOGRAPHY

55

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CHAPTER ONE INTRODUCTION 1.1 Background to the study There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property...1

The right to property is fundamental pillar of all democratic societies. 2 Whilst the right to property is wide and may encompass any ‘vested interest’3, access to land is perhaps the most fundamental of all property rights. This is even more relevant for developing countries where land makes up three quarters of wealth.4 ‘The land is more than a physical entity; it is the most important ingredient in the economic life of the people; it is religion to others and also has political connotations’.5 For many people, access to land is essential for the attainment of a dignified life.6 Land rights serve as a catalyst for economic growth, social development and poverty alleviation.7 It is a crucial issue for ‘social justice and equality’.8 Access to land constitutes the basis of access to food,9 housing10 and development and the lack of access creates vulnerability and economic insecurity for many people.11 For instance, research has shown that lack of access to land makes women more vulnerable to HIV/AIDS

1

W Blackstone Commentaries on the Laws of England (1765-69) cited in CM Rose ‘Canons of Property Talk, or, Blackstone’s Anxiety’ (1998-99) 108 Yale Law Journal 601. 2 A Alias & N Daud ‘Payment of adequate compensation for land acquisition in Malaysia’ (2006)12:3 Pacific Rim Property Research Journal 326 329. 3 T R G van Banning The Human Right to Property (2002) 12. 4 H de Soto The mystery of capital: why capitalism triumphs in the West and Fails Everywhere Else (2000) 86; USAID Land and conflict: a toolkit for intervention (2005) 35; K Deininger ‘Land policies for growth and poverty reduction: a Word Bank policy research report’ (2003) 292. 5 P Kuntu-Mensah ‘land tenure and title registration in Ghana’ (1997) available at < http://www.spatial.maine.edu/~onsrud/Landtenure/CountryReport/Ghana.html> (accessed 15 September 2014). 6 P Gelbspan and FGV Thea ‘Land in the struggle for social justice: social movement strategies to secure human rights’ (2013) published by Terra de Direitos available at http://www.terradedireitos.org.br (accessed on 16 September 2014) 7 J Gilbert ‘Land rights as human rights: the case for a specific right to land’ (2013) 18 SUR Journal 115. 8 Gilbert (n 7 above) 116. 9 Commission on Human Rights, Report of the Special Rapporteur on the right to food, Jean Ziegler, U.N. Doc. A/57/356 (Aug. 27, 2002) (Ziegler Report) para 22. 10 Commission on Human Rights, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, U.N. Doc. E/CN.4/2005/48 (March 3, 2005) para 41. 11 International Land Coalition ‘Towards a common platform on access to land: the catalyst to reduce rural poverty and the incentive for sustainable natural resource management’( Rome,2003) available at < http://www.landcoalition.org/sites/default/files/legacy/legacypdf/CPe.pdf?q=pdf/CPe.pdf > (accessed 2 August 2014).

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infections, violence and exploitation.12 The UN Special Rapporteur on the right to food ‘believes that access to land is one of the key elements necessary for eliminating hunger in the world’.13 Despite the importance of land in the lives of many people it is estimated that half of the world’s rural population are faced with insecure property rights in land and about a quarter of the world’s population are landless making insecure land titles and landlessness a major contributory factor to poverty around the world.14 For these many reasons, access to land is clearly a human rights issue.

Land is becoming scarce as a result of population growth and large scale land acquisition for commercial purposes use.15 This has led to adoption of many international guidelines including the FAO Voluntary Guidelines on the Governance of Tenure of Land, Forests and Fisheries, the World Bank Voluntary Principles on Responsible Agricultural Investments, the UN Special Rapporteur on the Right to Food’s Principles on Large-scale Land Acquisitions and Leases, UN Guiding Principles on Business and Human Rights, AU Framework and Guidelines on Land Policy in Africa amongst others. Although these guidelines are not legally binding, they provide persuasive norms that states have incentive to follow. It has also engendered renewed discussions on the issue of land management and land rights with some calling for the recognition of the right to land as a standalone right.16 The issue of land management is currently being discussed as one of the major themes for the post 2015 agenda.17

12

UN Office of the High Commissioner for Human Rights (OHCHR)/ UN Women ‘Realizing women’s right to land and other productive resources’ (2013) 2. 13 Ziegler Report (n 9 above), para 22. 14 UN-HABITAT ‘Secure Land Rights for all’ (2008) 4. 15 15 L Cotula et al ‘Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa’ (2009) 15. 16 Gilbert (n 7 above) 116-129 ; Economic and Social Council, Development Cooperation Forum, Annual 2008 High-Level Segment Ministerial Declaration, Implementing the internationally agreed goals and commitments in regard to sustainable development, draft declaration, UN Doc. E/2008/L.10 para 28 (July 3, 2008); United Nations Public-Private Alliance for Rural Development, Ministerial Declaration on Rural Development, “Promoting an integrated approach to rural development in developing countries for poverty eradication and sustainable development,”, Doc. A58/3/Rev1 (July 3, 2003) para 24; Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN Doc. A/HRC/4/18 (Feb. 5, 2007) para 31- 33. 17 German Development Institute ‘Post 2015: Why is the Water-Energy-Land Nexus Important for the Future Development Agenda?’ Briefing Paper 3/2013 available at (accessed 19 August 2014).

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Whilst highlighting the importance of the property right to land, it is also essential to emphasize that it is almost universally recognized that governments have the rights to compulsorily acquire property in the public interest subject to the payment of compensation.18 The situation is not different in Ghana. The constitution guarantees the right to property19 and also recognizes that government may compulsorily acquire land in the public interest or for public purpose.20 In Ghana, land is primarily owned by customary institutions and the state can only access land through the instrument of compulsory acquisition.21 Government also reserve the power to order the occupation of private land which deprives land owners of seeking compensation until the land is formally acquired by the government.22 In most instances, government’s power to order occupation of private land is used in favour of mining companies, wherein companies can avoid paying compensation for the land, save the chattels on the land. The use of compulsory land acquisition powers by government has often left a trail of unsolved problems such as unpaid compensation, lack of consultation with land owning communities, divestiture of compulsorily acquired land for the use of private persons to the dissatisfaction of the original owner.23

It is within this context that compulsory land acquisition and the right to property in Ghana is discussed. This study considers the current position of Ghanaian law on compulsory land acquisition and assesses its conformity to the human right to property under international human rights law.

18

JL Knetsch Property rights and compensation: compulsory acquisition and other loses (1988) 142; B Denyer-Green Compulsory purchase and compensation (2005) 64. 19 Government of Ghana, Constitution (1992) article 18. 20 Constittion of Ghana (n 19 above) article 20. 21 WO Larbi ‘Compulsory Land acquisition and compensation in Ghana: searching for alternative policies and strategies’, paper presented at FIG/FAO/CNG International Seminar on State and Public Sector Land Management, Verona, Italy, (September 910, 2008) 2. 22 Asare v Ashanti Goldfields Co and Others [I 999-2000] 1 GLR 474 – 477. 23 Larbi (n 21above) 1.

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1.2 Problem statement Ghana is considered to be endowed with natural resources amongst which arable land ranks very high. It is estimated that 69.9% of the total surface of Ghana is arable24 with a total of 50.6% of the working population of Ghana found in the agricultural sector.25 This makes the issue of land management even more pertinent in the context of Ghana. In spite of the importance of land in the lives of the majority of Ghanaians land management issues are mostly approached from an economic rather than a human rights based approach. As a result despite the constitutional guarantee of the right to property as a fundamental human right and the requirement that property rights be curtailed in the public interest upon the payment of fair and adequate compensation,26 this has not triggered a review of the major compulsory land acquisition laws to reflect human rights best practices. For instance compulsory land acquisition in Ghana is essentially completed upon the publication of an Executive Instrument (EI) by the President, subsequent to which all previous interests in the land are extinguished.27 There is no requirement for prior consultation or even notification of the land owners much less informed consent. The land owners only become involved in the process after the acquisition instrument has been published, where compensation is payable. Compensation payment is therefore treated as a separate issue after the acquisition and not as part of the process.28 This process excludes the land owners from the decision-making processes.29

Experience has shown that

governments do not have the incentive to pay prompt and adequate compensation once they are in possession of the property. Like many African countries, land ownership in Ghana is controlled by a mixed system of statutory and customary law. Under customary law land is ‘generally held in common and not privately owned’.30 Customary land holding is intergenerational31 and different interests in land may exist at the same time making land ownership and occupation more complex. 24

World Bank ‘Agricultural land(% of land area)’ available at (accessed 20 August 2014). 25 Republic of Ghana, Ministry of Food and Agriculture ‘Agriculture in Ghana: Facts and Figures(2010)’ (2011) 7. 26 Constitution of Ghana (n 19 above) article 20(2). 27 Republic of Ghana, State Lands Act, 1962 (Act 125), section 1. 28 WO Larbi et al ‘ Compulsory Land acquisition in Ghana – policy and praxis (2004) 21 Land Use Policy 115 118 29 Larbi et al (n 28 above) 118; RT Abdulai ‘Land registration and poverty reduction in Ghana’ in Robert Home (ed) Local Case Studies in African Land Law (2011) 163. 30 LK Agbosu ‘ Land law in Ghana: a contradiction between Anglo-American and customary conceptions of tenure and practices’ (2000) Land Tenure Centre – University of Wisconsin-Madison, working Paper No33 2. 31 NA Ollenu Principles of Customary Law in Ghana (1962) 23.

4

This very nature of customary landholding makes land management an interesting challenge that requires careful attention.

Additionally, with regards to lands compulsorily acquired for mining operations, the law shifts the obligation to the private mining companies to negotiate compensation with the land owners32 contrary to the government’s constitutional obligation to pay compensation for lands compulsorily acquired. This ignores the power imbalance between the mining companies and the affected persons or communities and exposes them to exploitation by powerful mining companies. Again, the affected communities are only involved in the process subsequent to government entering into agreement with the mining company and not prior. This culminates in a situation where consultation becomes a mere issue of determining compensation and not an empowering tool aimed at ensuring that community interests are taking into account throughout the project cycle.

In terms of institutional arrangements the Lands Commission which is responsible for managing compulsorily acquired land ...