Feature: OccupyGhana writes to Lands Commission

Our Ref: OG/2023/017

10 July 2023

The Minister
Ministry of Lands and Natural Resources
Accra

Executive Secretary
Lands Commission
Accra

Dear Sirs:

DEMAND TO CEASE AND DESIST FROM ALL PLANNED RELEASE OF PUBLIC LANDS TO ALLEGED PRE-ACQUISITION OWNERS

We write to demand that the Government and Lands Commission (1) properly account to Ghanaians for all public lands that have been purportedly released to alleged, previous owners or any other persons, and (2) immediately cease and desist from implementing any plans to cede ownership of further public lands, until you comply with constitutional conditions-precedent to any such transactions.

PRESIDENT AS TRUSTEE, LANDS COMMISSION AS MANAGER
Under the Constitution, all compulsorily acquired lands are ‘public lands.’ According to the Supreme Court, this applies whether the land is vested in the State ‘or assigned to a particular public service institution.’

While public lands are vested in President in trust for the people, the power to manage such lands is vested exclusively in the Lands Commission. We contend that the Lands Commission’s power to manage does not include the unilateral power to cede ownership of public lands to any other person.

According to the Constitution, in the performance of its functions, the Lands Commission is independent of ‘any person or authority,’ subject only to limitations provided in either the Constitution itself or other constitutionally-compliant laws.

The Constitution then binds the Lands Commission to comply with only Presidentially-Approved Written General Directions (‘PAWGDs’) issued by the Lands and Natural Resources Minister.

Thus, the Minister may only make approved directions of a general nature, but cannot be involved in or instruct on any acts that amount to direct and specific management of public lands. Those would be unconstitutional and void.

LANDS COMMISSION’S FIDUCIARY OBLIGATIONS
The Constitution also imposes on the Lands Commission, as the ‘manager of public lands,’ the same fiduciary and accountability obligations of trustees. Therefore, neither  the Government nor the Lands Commission may dispose of any public lands, being trust property, without observing the constitutional architecture put in place to prevent a wanton dissipation of such lands.

If public lands must be sold, then first, the Government, acting in utmost good faith, observing its trust duties of honesty, integrity and loyalty, and considering what is in the best interest of the people, would have to issue a relevant PAWGD. It is only after that, that the Lands Commission, observing the same trust duties, would independently manage the process.

ABSENCE OF PAWGDs
However, and following the unfortunate, but thankfully, failed attempt to release Achimota Forest lands to so-called pre-acquisition owners, both the Ministry of Lands and Natural Resources (in a letter dated 14 July 2022, ref GA 110/280/01) and the Lands Commission (in a letter dated 14 July 2022, ref SCR/LCS 3/v.7/13) have admitted to us that there are no PAWGDs in place.

We are convinced that the Constitution provided for PAWGDs because public lands must be managed in the supreme interest of the people of Ghana, and not any section of us.

If the public ownership of those lands must be relinquished, then the people of Ghana (as the owners and beneficiaries of those lands) must have the opportunity to see and debate the draft PAWGDs and express our views on them.

We are firmly convinced that without the relevant PAWGDs, it is unconstitutional for either the Government and/or the Lands Commission, to cede ownership of any public lands, thereby depriving the people of ultimate ownership.

LANDS COMMISSION’S DISCLOSURES
In partial answer to our right to information request, the Lands Commission has claimed, by a letter dated 13 March 2023 ref SCR/LCS 3/v.7/73, that only six tracts of public lands have been released to so-called pre-acquisition owners. These lands cover a massive total area of 2,371.867 acres in Accra, namely Mpehuasem, Nungua, Madina and Adentan.

Two of those land tracts (covering 1582.83 acres) have been leased back to the original owners at either peppercorn or no rent.

The Lands Commission explains that economic rent would be applicable upon transfer of interest to third parties. We are aware that all of those lands have indeed been assigned or sublet to third parties.

Yet the Lands Commission, in clear breach of its constitutional duties, is unable or unwilling to disclose who the current assignees and sublessees are, and how much economic rent has been recovered, if any.

The remaining four land tracts (covering 779.037 acres) have been released to the original owners, absolutely and for free.

However, instead of issuing PAWGDs, different Lands Ministers simply assumed unconstitutional land management powers and issued Executive Instruments to redraw the boundaries, and thereby effectively released the lands. These are unconstitutional and void.

Further, the Lands Commission’s 13 March 2023 letter does not appear to have considered other public lands that had been assigned to other public institutions, and which may have also been released.

According to the Supreme Court, such lands still constitute public lands, and that even where such institutions have ‘no further use of the land…, the land reverts to the State represented by the Lands Commission.’

Thus, to the extent that any state institution has released any such lands, instead of returning them to the Lands Commission, those releases are also unconstitutional and void.

CEASE AND DESIST
It is in the light of the above that we write to demand that:

(1)      the Lands Commission should FORTHWITH, properly disclose to us, information on the current holders of ALL public lands (within the definition provided by the Supreme Court) that have been released throughout the country, and how much has been derived by way of economic rent from third-party leases; and

(2)      the Government and Lands Commission should suspend all planned releases of public lands (including the Achimota Forest lands) until the Government has, after public debate, issued the constitutionally-required PAWGDs.

Take notice that if you ignore these demands and/or proceed with any such unconstitutional transactions, we will sue both the Government and the Lands Commission to restrain such unconstitutional conduct, and to reverse such acts.

Yours in the service of God and Country.

OccupyGhana

cc.
Speaker of Parliament
Parliament House
Accra

Chief of Staff
Office of the President
Jubilee House
Accra

Attorney-General and Minister for Justice
Office of the Attorney-General and Ministry of Justice
Accra