ACHIMOTA FOREST, AND THE QUESTION OF LAND IN GHANA

1. PERISCOPE DEPTH

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1. Ghana happens to be blessed with one of the finest foundational republican grundnorms in terms of laws, what we  have come to call the the Constitution of the Republic of Ghana, 1992. Even though this document has many warts and faults, it is still a formidable treatise for the administration of any group of people.
2. Amending any part of the 1992 Constitution takes labourous work. In other wods, it is not easy to amend any part of the 1992 Constitution, which is the beauty of that document. The 1992 Constitution protects and asserts itself. In the view of the framers of our constitution, however, the provisions of our constitution were to be divided into two, namely enshrined provisions, and entrenched provisions. As stated above, amending any part of the 1992 Constitution requires hard work, but it seems that when it comes to the entrenced provisions, they are virtually cast in stone. A bill to amend an entrenched provision has to be laid before parliament, be reffered by the Speaker to the Council of State for advice, shall be published in the Gazzette and exhibited for six months, and then sent back to parliament to be read for the first time.
3. It shall then be submitted to a national referendum, at which a least forty percent of people entitled to vote, voted, and at least seventy-five percent of the people who voted, agreed to the passage of the bill.
4. Even without Ghana’s highly polarized political terrain, these provisions are virtually insurmountable on any day. Given the NPP and NDC duopoly, where the two political parties tend to disagree with whatever the other is proposing on any day with total lack of consideration for what is good for the nation, one can state that whatever one party proposes to be done, the other would disagree, in the principle of opposing for the sake of opposing. A classic example is when the current NPP administration sought to lessen the power of the president in the appointment of MMDCEs. To my mind, this proposal, which required a constitutional amendment of Article 243 of the 1992 Constitution, would have been the single most progressive democratic step taken by this country since 1992. It would have been comparable to Ghana’s independence struggle and the promulgation of the 1992 Constitution itself. It would have been the single most progressive political legacy of the current President. The NDC, predictably, opposed it, because they stated that the behaviour of politicians in Ghana was too asinine to introduce into local government. Yes, the NDC is principally made up of politicians. And how they behaved towards the proposal to give the people the vote in local government, was asinine.
5. Article 290 of the 1992 Constitution lists the set of constitutional provisions which are entrenched. Among them is the whole of Chapter Five of the 1992 Constitution, which has to do with fundamental human rights. Article 20. (1) of the 1992 Constitution which falls under fundamental human rights, provides as follows;
6. “No property of any description, or interest in or right over any property shall be compulsorily taken possession or acquired by the State unless the following conditions are satisfied-

• the taking of possession or acquisition is necessary in the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such a manner as to promote the public benefit;
• the necessity for the acquisition is clearly stated and is such as to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over the property.”

1. Article 20. (2) provides as follows;
2. “Compulsory acquisition of property by the State shall only be made under a law which makes provision for-

• the prompt payment of fair and adequate compensation; and
• a right of access to the High Court by any person who has an interest in or right over the property whether direct or on appeal from any authority, for the determination of his interest or right and the amount of compensation to which he is entitled.”

1. Article 20. (6) of the 1992 Constitution provides further;
2. “Where the property is not used in the public interest or for the purpose for which it was acquired, the owner of the property immediately before the compulsory acquisition, shall be given the first option of acquiring the property and shall, on such re-acquisition refund the whole or part of the compensation paid to him as provided for by law or such amount as is commensurate with the value of the property at the time of the re-acquisition.”
3. In place of the word ‘property’ substitute the word ‘land’. Government cannot acquire your land until it undergoes the rigorous provisions stated above.
4. We must note that there has been a constitutional interpretation with regard to Article 20. (6), where the Supreme Court ruled in the case of Nii Kpobi Tettey Tsuru III v AG that that article was prospective, in other words, it had no bearing or effect on land acquired before the promulgation of the 1992 Constitution. So that, those whose lands were acquired after the coming into force of the 1992 Constitution, cannot take advantage of it.
5. But even assuming that they can take advantage of Article 20. (6), that provision itself sets up nearly insurmountable obstacles, that any prospective land owner, particularly those who received considered compensation for their land, have to take into contemplation when asking for their land back.
6. For instance, with regard to the now famous Achimota Forest brouhaha, the first parcel was acquired from the Owoo Family a hundred years ago for a consideration of Four Thousand British Pounds Sterling. Now, one may hear that figure today and raise up his nose in contempt. But 4000 pounds sterling in the year 1922, was a humongous amount of money, literally millions of pounds sterling in today’s terms.
7. Again, a hundred years ago, what is now Achimota Forest, was a huge and dark piece of forest standing far out of town, and it would have taken a true visionary to have recognized, back then, that just an acre of the same land, a hundred years later, can fetch over a million pounds sterling.
8. For the family to be able to ask for the land back, they must be asked to meet the terms of Article 20. (6) of the 1992 Constitution, which are as follows;
9. “Where the property is not used in the public interest or for the purpose for which it was acquired, the owner of the property immediately before the compulsory acquisition, shall be given the first option of acquiring the property and shall, on such re-acquisition;

• refund the whole or part of the compensation paid to him as provided for by law, or
• such amount as is commensurate with the value of the property at the time of the re-acquisition.”

1. Taking up the first leg, the owners of the Achimota Forest Land would be required to refund the whole or part of the compensation paid to him (them) as provided for by law. This statement, is not as simple as it seems. The four thousand pounds taken a hundred years ago would have to be revalued in today’s terms. It must be calculated taken in factors of interest, per capita value a hundred years ago and today, and other factors. The accountants know how to do that, and it would run literally into hundreds of millions of Ghana cedis, an unpayable sum.
2. Or, they could proceed on the second leg, that is to pay back to government an amount that is commensurate with the value of the asset in today’s terms. That again would put the value of the asset out of reach of the allodial owners of the land.
3. Contracts are in perpetuity, and remain enforceable against agents, assigns and benefactors. Once the family willfully and for consideration devised itself off the interest in the property years ago, it should not be rightful, that decades later, it sets up an interest in the same land. But assuming that they set up an interest, then they must be forced to go through the litmus test of Article 20. (6).
4. On lands generally, I believe that Ghana’s history in property rights is unique, and beneficial. Land ownership is generally widespread according to traditional councils, families and individuals. Therefore, historically, people have always had access to land. It is still possible to acquire land for whatever purpose one needs it for in this country, and Article 20 of the 1992 Constitution reinforces that position. I believe that government has a duty to hold on to what has already been acquired, and to look to acquiring more where public interest so dictates, subject to the payment of appropriate compensation. We should encourage government (by which I mean all governments) to guard what has been already acquired, through keeping off encroachers, and against pillage by officials.
5. (This article was first published in the column PERISCOPE DEPTH of the Daily Searchlight of 25/05/2022. The Daily Searchlight appears on the newsstands of Ghana every working day and for sale online twenty-four hours a day all day throughout the world on www.ghananewsstand.com).