Govts and Power of Eminent Domain - An Infringement of People's Rights

By Helena Selby

The democratic dispensation guarantees individual rights, which include the right to own property. Article 18(1) states: "Every person has the right to own property either alone or in association with others." Land has economic, social and cultural significance, and is considered a source of pride for individuals, families and clans. In Ghana, lands could be owned by families, stools, clans and individuals, who sometimes hold it in trust for the living, the dead, and generations yet unborn. In Ghana, land forms the basis of our beliefs and cultural systems, and many people recognise that their family lands were gained through difficult sacrifices made by their forefathers. The larger the tract of lands owned by an individual, family or stool, the higher the status in the community.

In as much as the constitution gives people the chance to own property and protect them, it as well has the right to take land away from any individual or family through the Power of Eminent Domain. Eminent Domain gives power to the president or government to take away any land, with or without the consent of the property owner, in the interest of national development. The 1992 Constitution of Ghana however guarantees the prompt payment of fair and adequate compensation, in cases of compulsory acquisition of property for national developments, such as railway, roads, hospitals, and other social amenities. The need to have a look at the power of the state to take people's property for development, results from experiences of communities in mining areas, which have complained that they are not paid fair and adequate compensation when their lands are taken over for surface mining operations. The Minister for Environment, Science and Technology, Ms. Sherry Ayittey, recently expressed worry over the large tracts of land given to mining companies as concessions, which deprives indigenous people of their lands for farming and other economic activities. The communities sometimes prefer to remain farmers, rather than have one-time payment of compensation, and lose their lands forever.

What is Eminent Domain?

According to the Wikipedia website, Eminent Domain is the compulsory purchase, resumption/compulsory acquisition or expropriation. It is the inherent power of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent. The property is taken either for government use or by delegation to third parties who will devote it to public or civic use, or in some cases, economic development. The most common uses of properties taken under Eminent Domain are for public utilities, highways, and railroads. The original intention was for land that would only be used for the common good. Land taken through Eminent Domain is paid for very well by governments.

Governments have the right to acquire privately owned land through the exercise of the Power of Eminent Domain. Eminent Domain is the right or power of a unit of government or a designated private individual to take private property for public use, following the payment of a fair amount of money to the owner of the property. The theory behind Eminent Domain is that the local government can exercise such power to promote the general welfare, in areas of public concern, such as health, safety, or morals.

Property owning in Ghana

The right to own property in Ghana has been made possible for everyone due to the existence of democracy. Article 18 (1) provides that every person has the right to own property either alone or in the association with others. Our democracy has given people the right to sell, buy and own land for any purpose of their choice, be it for commercial or private purposes. A rightful owner of a land cannot be intimidated, nor have his/her rights infringed upon, since the person is protected by the national constitution. Article 18 (2) states that no person shall be subjected to interference with privacy of his home, property, correspondence or communication, except in accordance with law, and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of crime, or for the protection of the rights or freedoms of others.

Power of eminent domain

This power is exercised very often in Ghana, due to the intention of every reigning government of developing the country. However, one of the commonest instances where Eminent Domain takes place is towns with lands endowed with natural mineral resources. Every now and then, due to the Power of Eminent Domain people in remote areas tend to lose their lands and properties to the government, through the power of the President. A lot of farmlands like cocoa and citrus farms in places such as Ahafo, Obuasi, Tarkwa and Nzema are destroyed through the practice of these mining companies.

The Ghana Constitution Chapter 5 article 20 (6) states: Every mineral in its natural state in, under or upon any land in Ghana, rivers, stream, water courses throughout Ghana, the exclusive economic zone and any area covered by the territorial sea or continental shelf is the property of the republic of Ghana and shall be vested in the president on behalf of and in trust for the people of Ghana.

In most cases, the government takes these lands with mineral resources, and gives them to mining companies with the intention of generating revenue for the country. Since the lands are owned and considered the livelihood of the people, the company which takes over is expected to compensate the people on behalf of the government, as the constitution makes it clear.

The Constitution of Ghana - Chapter 5 article 20(3) where a compulsory acquisition or possession of land effected by the state in accordance with clause (1) of this article involves displacement of any inhabitants, the state shall resettle the displaced inhabitants on suitable alternative land with due regard for their economic well-being and social and cultural values).

Eminent Domain and mining towns

In Ghana, the Eminent Domain in the 1992 Constitution is expressed in Article 257(6), which states: "Every mineral in its natural state, in, under, or upon any land in Ghana, rivers, streams, water courses throughout Ghana, the exclusive economic zone, and any area covered by the territorial sea or continental self, is the property of the Republic of Ghana, and shall be vested in the President on behalf of, and, in trust for the people of Ghana." This forms the basis of the power of the President to take lands from people in mining towns such as Ahafo, Obuasi, Tarkwa and Nzema, and give the community lands to mining companies for surface mining operations.

Even though it is expected that people affected by the exercise of the Power of Eminent Domain, would be treated fairly in terms of compensation, it does not work that way. Whilst Article 20(3) of the 1992 Constitution of Ghana states: "Where a compulsory acquisition or possession of land effected by the state in accordance with clause (1) of this article involves displacement of any inhabitants, the state shall resettle the displaced inhabitants on suitable alternative land with due regard for their economic well-being and social and cultural values," communities that have been forced to resettle, live with situations where they cannot continue to undertake their farming activities because of the absence of land. This is a clear violation of the provisions in the 1992 Constitution of Ghana.

ConclusionThough experts would like to state that the Eminent Domain is entrenched in our constitution, there should be a national debate to discuss the merits and demerits of the power of the state to take the minerals in the land of a citizen, and when the mineral is mined he or she is paid a paltry compensation, and then as aresult is made poorer.

This defeats the spirit of the provision in the national constitution to protect the property of citizens of Ghana. Moreover, the government gives out mineral rights to companies as a way of generating employment and revenue. The idea that surface mining generates employment is exposed by critics who say that surface mining destroys the livelihoods of thousands of host communities, and generates little employment, because of the use of heavy machinery.

The world is changing, and it is time for us to ensure that we empower our people to be able to protect their properties against the power of multinational companies.

Dispossessing communities of their lands, in favour of multinational mining companies, is leading to the collapse of the rural economy, and resulting in increasing rural-urban migration.

The social consequences of an increased rural-urban migration include an increase in school dropout rate, prostitution, child labour, armed robbery, etc. The Power of Eminent Domain will be of no use when the rights of the people, who are to benefit from the developmental projects, are not protected.