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The Right to Property and Compulsory Land Acquisition in Ghana: A Human Rights Perspective

Document Cited authorities 3 Cited in Related
Vincent
DOI10.3366/ajicl.2019.0261
Pages100-125
Author
Date01 February 2019
Published date01 February 2019
INTRODUCTION

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 a fundamental pillar of all democratic societies.2 While the right to property is broad and may encompass any ‘vested interest’,3 access to land is arguably the most fundamental of all property rights. This is even more relevant for developing countries where land makes up three-quarters of wealth.4 For many people, access to land is essential for the attainment of a dignified life.5 Land rights serve as a catalyst for economic growth, social development and poverty alleviation.6 It is a crucial issue for ‘social justice and equality’.7 Access to land constitutes the basis of access to food,8 housing9 and development and the lack of access creates vulnerability and economic insecurity for many people.10 ‘Access to land is one of the key elements necessary for eliminating hunger in the world.’11

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 major contributory factors in poverty around the world (and food insecurity).12 The situation is exacerbated by renewed interest in large-scale land acquisition in Africa by multinational corporations and sovereign states for ‘agro-industrial enterprises, forestry and mineral exploration’.13 For these many reasons, access to land is clearly a human rights issue.

While highlighting the importance of the property right to land, it is also essential to emphasise that it is almost universally recognised that governments have the right to compulsorily acquire property in the public interest subject to the payment of adequate compensation.14 The situation is no different in Ghana. The constitution guarantees the right to property15 and also recognises that government may compulsorily acquire land in the public interest or for public purpose.16 Because land in Ghana is primarily owned by customary institutions and the state can only access land through the instrument of compulsory acquisition,17 the use of the government's power of compulsory acquisition is essential for several purposes. The use of compulsory land acquisition powers by government has, however, often left a trail of unsolved problems such as unpaid compensation, absence of consultation with land-owning communities and divestiture of compulsorily acquired land for the use of private persons to the dissatisfaction of the original owners among others.18

Against this background, this article discusses the compulsory land acquisition regimes in Ghana and assesses their conformity with international and regional human rights norms and standards for the protection of the right to property. Before embarking on the examination of the compulsory land acquisition regime in Ghana, two essential topics are discussed. First, the normative framework for the right to property under international human rights law is studied. Second, an exposition of the emerging international best practice in compulsory land acquisition is made. These provide the background and standards to which compulsory land acquisition in Ghana is measured. The rest of the article is organised as follows: section II revisits and evaluates the international and regional human rights law protection of the right to property; section III provides an overview of emerging best practice in compulsory land acquisition; section IV evaluates compulsory land acquisition regimes in Ghana and highlights their imperfections, drawing on lessons from other jurisdictions; section V provides conclusions and recommendations.

 UNPACKING THE RIGHT TO PROPERTY UNDER INTERNATIONAL HUMAN RIGHTS LAW

The right to property has always been and continues to be subject to political contestation.19 Even seven decades after it was proclaimed as a fundamental human right in the Universal Declaration of Human Rights (UDHR), its status as a universal human right is still contested by many mainly as a result of ideological disparities between the East and the West.20 Thus, while Western countries with mainly capitalist economies favour the universal recognition of the right to property, Eastern states and many Third World countries have been opposed to the full recognition of the right to property.21 Even though this dichotomy in ideology regarding property rights has somehow waned subsequent to the end of the Cold War22 the exact frontiers of the right to property in international human rights law remain very much uncharted. With this background in mind, this section evaluates the development of the right to property at the international level through various instruments with the aim of identifying the relevant human rights standards that states are required to abide by during compulsory acquisitions and identifies some of the gaps in operationalising these instruments. It must, however, be clarified from the outset that the right to property in this article is discussed in the context of its narrow meaning as a negative right of non-interference arbitrarily with already existing property rights rather than the broader context as an economic, social and cultural right which would require states to take positive measures to ensure that everyone has at least a minimum of property rights.23

That said, under conventional human rights law, the right to property can be traced to the UDHR, the cornerstone of modern international human rights law.24 Article 17 of the UDHR provides that ‘[e]veryone has the right to own property alone as well as in association with others’ and that ‘no one shall be arbitrarily deprived of his property’.25 Article 17 thus recognises in general terms the fundamental nature of the right to property and limits the ability of states to arbitrarily interfere with the enjoyment of the right. It is worth noting that Article 17 protects both individual and collective property ownership rights.

It must, however, be acknowledged that Article 17 is quite vague26 as it fails to provide guidance on the terms of deprivation such as the requirement of a public interest consideration, payment of compensation or seeking informed consent of the property owners. Similarly, Article 17 does not provide much guidance on the content and scope of the right nor the types of things that may be owned.27 Despite the vagueness of Article 17, it has played a significant role in affirming the right to property and has become the standard to which the United Nations General Assembly (UNGA) has repeatedly called on states through resolutions to respect the right to property.28 It has been suggested by some scholars that the apparent vagueness can be addressed by ascertaining the implications of the ‘arbitrariness’ standard included in Article 17.29 To that extent the ‘arbitrariness’ standard has been interpreted to implicitly require the payment of compensation for compulsory acquisition.30 It has also been interpreted to implicitly require a public purpose justification, non-discrimination and procedural fairness.31 Non-discrimination is supported by Article 2 of the Universal Declaration. We further suggest that implicit in the ‘arbitrariness’ standard is the requirement of participation and informed consent of the property owners during compulsory acquisitions.

The right to property was omitted from the International Covenants because of disagreements between the negotiating states relating to the extent of restrictions that states could place on the right.32 Scholars, however, argue that the omission of the right to property is by no means a denial by states of the existence of the universal right to property.33 Louis Henkin, for instance, notes that the omission ‘can hardly be construed as a rejection of the existence of the principle of a human right to own property and not to be arbitrary deprived of it.’34 This is evidenced by the explicit protection of the right to property in group-specific treaties that preceded the Covenants as well as those subsequent to the Covenants. For instance, the Convention relating to the Status of Refugees, while not expressly providing for the right to property, has several provisions requiring states to respect the right of refugees to movable and immovable property,35 intellectual property36 and transfer of property brought into the host country to another country.37 Similarly, the right to property is recognised in varying degrees by the Convention relating to the Status of Stateless Persons,38 the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),39 the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),40 the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families41 and the Convention on the Rights of Persons with Disabilities (CRPD).42 It must be highlighted that the recognition of the right to property in CEDAW, ICERD and CRPD relates mainly to non-discrimination in the enjoyment of the right to property and not an independent right to property.43 In this regard Article 26 of the International Covenant on Civil and Political Rights (ICCPR) which provides a free-standing right to non-discrimination offers protection against discrimination of all forms including in the enjoyment of the right to property, even though the right to property is not specifically guaranteed in the ICCPR.44

Despite the recognition of the right to property in these treaties, there is limited guidance on the safeguards to be adopted in the event of expropriation of such property. The only exceptions appear to be the International Labour Organisation Convention 169 relating to indigenous and tribal people (ILO Convention 169) and the UN Declaration on the Rights of...

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