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.

Women Demand That Their Rights Be Implemented

By Helena Selby

In Ghana, and many parts of the world, women see marriage as the ultimate achievement in their lives. When a woman gains the love and respect of a man, and marriage is proposed, it serves as the greatest pride and dignity of the woman, since a man has found some sought of virtue in her. However, when the woman reaches her prime, and sees no signs of appreciation of her looks and virtue from any man, it turns to be a disappointment and a form of disgrace, since society will have a negative perception about her.

In Ghana, when a woman is not married and is past her prime, society has the perception that men don't see her as being attractive and good for marriage, or she has a bad character. At times society concludes it is due to an evil omen/curse, thereby preventing any man from being attracted to her. A woman, who does not get married in her prime, loses all forms of respect that she has in society, is ridiculed and called all forms of names. A woman who is able to marry and have children is considered lucky and virtuous. Marriage is a good thing, but looking at how the idea of marriage is cherished by women, do they get the full benefit of it, especially in times of divorce or bigamy on the side of the man.

Marriage in Ghana

There are three types of marriage in Ghana, namely marriage by Ordinance, Customary and Religious, however, each tribe, when it comes to customary marriage, have their own ways of doing it. In the Akan way of marriage, the family of the woman decides what the man should present in order to take the woman as his wife - usually a bottle of schnapps and some amount of money does it all. When these items are accepted by the woman's family, then the woman becomes the wife of the man. A woman getting married is a sort of relief from some of her responsibilities, as the man has the responsibility of taking care of all her needs. The joy of every woman in a marriage is how loving a husband is, and how well the husband is able to take care of her.

Even though society assumes that a husband and wife are one flesh, when it comes to asset owning in the matrimonial home, surely, they say, it belongs to the man. It is a fact that property acquired by the man before marriage is his, however those acquired during the years of marriage is for both the man and woman. Even though this is the issue most times, women tend to get no share of the property acquired during the marriage, even though the law makes provision for this. This is because the man is the one who takes the woman from her parental home to his own, which becomes their matrimonial home.

In Ghana, it is the sole responsibility of the man to take care of every financial responsibility in the home, while the woman handles the domestic responsibilities. The woman can choose to help when there are financial crises out of her own free will. In this case, every property the man has before and during the marriage is considered his alone. The explanation being that the man was solely responsible for the finances in the home, and the woman, only the domestic responsibility, forgetting that the domestic responsibility of the woman, which is non-monetary, is counted as an occupation.

Divorce in Ghana

It very unfair that while marriage can be annulled in the case of marital unfaithfulness, in Ghana a woman can be divorced under customary law, on grounds of witchcraft, stealing and adultery, yet these are not grounds for a woman to divorce a man. If a man wants to divorce his wife, he demands from the family of the woman the dowry or items he presented to them for her hand in marriage. If the woman decides to divorce the man, the only thing she has to do is to send a bottle of schnapps to the family of the husband. The acceptance of the schnapps from the family of the woman, by the husband's family, is recognition of the divorce. The return of the schnapps by the woman's family, and the acceptance by the man's family, is considered a formal agreement to the divorce.

Laws protecting women

It is a good thing that the government has the interest of women at heart, even the passage of the Domestic Violence Act is a sign of true commitment to the protection of women. . In relation to women, laws have been passed over the years to improve their situation. These include marriage laws, intestate succession laws PNDC Law 111(1985), customary marriage, and divorce law PNDC law 112(1985). Amendments of the criminal code now contain consolidated criminal codes which have provisions to protect women from harmful traditional practices such as Female Genital Mutilation (FGM), and these provisions have also broadened protection against sexual violence. The Children's Act also protects children from early marriage.

Women and the law

According to the Women's Manifesto for 2008, in spite of the laws which are meant to protect women, they still continue to suffer bias and discrimination in Ghana. International human right instruments are not fully integrated and enforced within our national laws. In addition, the laws do not go far enough and fail to address the requirements of a comprehensive review of all national laws to ensure the repeal of discriminatory laws. Certain bills, such as the bill on property right, are yet to become law, although thirteen years have passed since the 1992 Constitution called for their passage. As a result, women continue to contend with discriminatory laws and practices in employment, marriage, divorce, and in access to resources such as land labour, capital and technology.

Furthermore, women continue to live with discrimination in relation to their rights and obligations in marriage, and the grounds for divorce. Practice such as polygamy, though lawful under customary and religious laws, are discriminatory and unconstitutional, and increases women's insecurity and vulnerability in married life. Men who are involved in the act of bigamy are not made to account for their actions, even though the criminal code makes such acts unlawful. Court decisions show that the laws governing the distribution of marital property during divorce do not sufficiently take account of women's non-monetary contribution to the acquisition of such property. There are limited or no access to legal processes, as a result of problems of cost and availability of service. The few women who are able to access the legal system find themselves dealing with an unduly formal and alienating environment.

Conclusion

Women are demanding that laws governing their rights be implemented, since it is meant for them and they as well need more rights to feel safe and accepted in the society they live in. If discrimination against women is not stopped, then campaigns about the rights women automatically will be of no use. It is about time certain laws such as the bill on property rights become law, just like the government has brought about the domestic violence act, it is the demand of women that this bill be passed.

The Mental Health Bill and Rights of the Mentally Retarded

By Helena Selby
Whenever society talks about the most vulnerable, women and children are the central idea, but society never takes into consideration the plight of the mentally retarded.

This is because they are considered a threat to people, and some even wish they are gotten rid of by society. Little does society know that a little help and consideration given to them will go a long way to change their situation. Just like the plight of women and children has been dealt with through the enactment of the Domestic Violence Act, the plight of the mentally retarded has to be dealt with as well.

The mentally retarded person is the least respected and the most humiliated and disregarded. People with mental disabilities are often left to their fate in this part of the world, while the unlucky ones are left to roam the streets and fend for themselves. They feed on all kinds of unhealthy food, be it from the gutters, rubbish dumps, or the environment. In most instances, children cast stones at them, and the adult pour all kinds of substances on them.

Every now and then, the majority of people refuse to think that being a victim of mental health is not a choice, and that the possibility of anyone being a victim is there. If that be the case, why does society not help in the support of the enactment of the Mental Health Act, so that people will not find themselves that wanting and miserable when in such positions.

Mental disorders and society

Mental disorder can be defined as a psychological or behavioural pattern that occurs in an individual, and causes distress or disability that is not expected as part of normal development or culture. Though medical experts have explicit reasons behind any mental problem, society most times disregards these explanations. In Ghana, mental disorder is mostly associated with superstition, with some people associating it with a curse or family problems. It is also believed that mentally retarded persons are either demon possessed, or their disorder is caused by witches in people's families, and that medical experts can be of no help, so end up leaving them in prayer camps.

Due to these superstitious beliefs, people always get uncomfortable helping them out when they are in need of basic things such as food, clothes or money. Society has come out with the notion that in helping any of these mentally retarded persons, one is throwing away his lucky prospects, since these so-called demon possessed mentally disorders can destroy your prospects spiritually.

The stigma society has attached to the mental disorders makes it extremely difficult for some families to come out openly for help, when a member encounters any disorder. This is because society will begin to have all forms of bad perceptions about the family. Families, knowing this, always prefer to abandon their relations in prayer camps, or the hospitals.

Forms of mental disorder

Mental illness is the commonest ailment in the world, just as it is defined. Each passing day many people in all walks of life have their mentality disordered. Many a time, the layman and even the society considers the mentally disordered, as the man roaming the streets talking to himself, and clad in dirty and tattered clothes. Mental disorder occurs in various forms, and according to Center for Psychiatric Rehabilitation website, mental disorder can be in a form of panic disorder.

That is the sudden onset of paralyzing terror, or impending doom, with symptoms that closely resemble a heart attack. Moreover, phobias, which are an excessive fear of particular objects, and obsessive-compulsive disorder - persistent distressing thoughts and a major depression - an extreme or prolonged episode of sadness in which a person loses interest or pleasure in previously enjoyed activities.

Everyone is at risk of mental health problems, but with different levels of disorder, it is therefore in the interest of society to support in making the mental bill an act, than to continue with the frequent stigmatisation of those with severe cases of mental health.

Situation of the mentally disordered

The issue of the mentally retarded is considered least by society, even the government and policy makers. Their presence in the society is considered a nuisance, and a form of societal unrest to people, so they are always underrated and their rights taken for granted. Since the mentally retarded is considered non-productive, their wellbeing is not considered important. It is always regarded a waste of resources when their health and economic condition is raised during policy making.

A nation as big as Ghana, has only three psychiatric hospitals, namely the Accra Psychiatric, Ankaful and Pantang hospitals, with very little bed capacity, and all unfortunately are located down south, within three hours of one another.

The present condition of these hospitals is not something one should be proud of. Even though they have to be given the maximum medical attention, there are very few psychiatrists taking care of them. In August 2008, the Acting Chief Psychiatrist of the Accra Psychiatric Hospital, Dr. Akwasi Osei, made mention that mental health personnel were currently in acute short supply. There are only fourteen consultant psychiatrists, with eleven of them already retired. All these 14 are, again, mostly located down south.

The country requires at least seventy psychiatrists spread all over the country. There are only about six hundred psychiatric nurses, while the country needs at least two thousand clinical psychiatric nurses, and about six hundred community psychiatric nurses. There are just about twenty clinical psychologists in the Ministry of Health alone. There is only one retired occupational therapist, where not less than fifteen of them are needed. The list can continue for other mental health personal who are lacking in the system.

The mentally retarded and basic needs

BasicNeeds, as always, has the interest of the mentally disordered at heart, and is training primary healthcare providers in diagnosing and the treatment of mental illness and epilepsy. Their increased awareness and competence allows them to handle cases of mental illness and epilepsy, and to coordinate service with psychiatric nurses. It is working with psychiatric professionals on better understanding and effectiveness. BasicNeeds, as well, trains community workers who play a crucial role in delivering community-based mental health service.

The mental health bill

The Mental Health Bill when promulgated into an act will help change the conditions of the mentally retarded. According to Dr. J. B. Asare, former Chief Psychiatrist of the Accra Psychiatric Hospital, the bill addresses decentralisation of mental healthcare, and covers mental healthcare in the community, spiritual and traditional settings. It as well allows supervision and revision of mental health practices. As it has the good of these people in mind, it would compel government and policy makers to include them in policy making. The bill, when turned into an act, would give the mentally retarded a better position in the society.

More and better hospital facilities would be provided for them, and sleeping on a wet floor and using a limited number of washrooms would be a thing of the past. Their rights, as well, would not be trampled upon, since it clearly states that a person with mental disorder has the right to enjoy a decent life as a normal person, and as full as possible, which includes the right to education, vocational training, leisure, recreational activities, full employment, and participation in civil, economic, social, cultural and political activities, and any specific limitation on these rights shall be in accordance with the assessment of capacity.

Conclusion

If the bill is passed, these people and the nation as a whole will make good use of it, since their treatment will serve as a boom in the number the labour force. The bill which is intended to enhance the state of the mentally disorder will in a way bring sanctity the environment as the number of these vulnerable to be loitering around will be limited. The mentally retarded deserve some form of right; they being vulnerable does not exempt them from enjoying the right they deserve. They need more rights and a better environment to leave in just like any other normal human being. It is therefore of extreme important to make this bill an act, and start implementing it.