LLM Dissertation Final 3

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The right to property and compulsory land acquisition in Ghana: an analysis of

the laws and policies towards greater protection
Thesis · October 2014

DOI: 10.13140/2.1.4249.1683
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THE RIGHT TO PROPERTY AND COMPULSORY LAND ACQUISITION
IN GHANA: AN ANALYSIS OF THE LAWS AND POLICIES TOWARDS
GREATER PROTECTION.
A DISSERTATION SUBMITTED TO THE CENTRE FOR HUMAN

RIGHTS, FACULTY OF LAW, UNIVERSITY OF PRETORIA IN PARTIAL
FULFILMENT OF THE REQUIREMENTS OF THE DEGREE OF MASTER
OF LAWS (LLM) IN HUMAN RIGHTS AND DEMOCRATISATION IN
AFRICA
BY
MICHAEL GYAN NYARKO
STUDENT NUMBER: 04631537
PREPARED UNDER THE SUPERVISION OF

DR ROSE NAKAYI
SCHOOL OF LAW, MAKERERE UNIVERSITY, UGANDA

30 OCTOBER 2014
PLAGIARISM DECLARATION
I, student number 04631537, do hereby declare:
1. That I understand what plagiarism entails and am aware of the University’s policy in
this regard.
2. That this dissertation is my own, original work. Where someone’s work has been used
(whether from a printed source, the internet or any other source) due acknowledgment
has been given and reference made according to the requirements of the Faculty of Law.
3. That I did not make use of another student’s work and submit it as my own.
4. That I did not allow anyone to copy my work with the aim of presenting it as his or
her own work.
SIGNATURE: MGN
DATE: 30 October 2014
i
DEDICATION
To Tawiah, Afua and Kwabena – I couldn’t have wished for a better family in this life.
This dissertation is also dedicated to my uncle Frempong, for believing in me.
ii
ACKNOWLEDGMENT
A big thank you to the Centre for Human Rights, University of Pretoria for giving me this
opportunity to be part of a truly live changing programme.
To the staff of and management of the School of Law, Makerere University, thank you for
always going the extra mile to make our stay in Kampala a memorable one.
My sincere gratitude to Dr Rose Nakayi, for supervising my work and responding to my

usually late submissions with such promptness despite your own tight schedules. I couldn’t
have done this without your guidance.
Finally, to Drishty for making this the best year of my life and keeping me motivated when I
was distracted.
iii
LIST OF ABBREVIATIONS
ACHR American Convention on Human Rights

ACHPR African Charter on Human and Peoples’ Rights
ASEAN Association of Southeast Asian Nations
CEDAW Convention on the Elimination of All forms of Discrimination Against Women
CRPD Convention on the Rights of Persons with Disabilities
FAO Food and Agricultural Organisation
ECHR European Convention on Human Rights
HRC Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of Racial Discrimination
ICESCR ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ILO International Labour Organisation
UN United Nations
UNGA United Nations General Assembly
iv
TABLE OF CONTENTS
COVER PAGE
DECLARATION i
DEDICATION ii
ACKNOWLEDGMENT iii
LIST OF ABBREVIATIONS iv
TABLE OF CONTENTS v
CHAPTER ONE: INTRODUCTION 1

1.1 Background to the study 1
1.2 Problem statement 4
1.3 Research objectives 6
1.4 Research questions 6
1.5 Significance of the study 7
1.6 Preliminary literature review 7
1.7 Research methodology 11
1.8 Limitations of study 11
1.9 Outline of chapters 12
CHAPTER TWO: INTERNATIONAL LEGAL FRAMEWORK FOR THE

PROTECTION OF THE RIGHT TO PROPERTY 14
2.0 Introduction 14
2.1 International level 14
2.1.1 The Universal Declaration of Human Rights and the right to property 14
2.1.2 The Covenants 17
2.1.3 Group specific treaties 18
2.1.4 The right to property as customary international law 20
2.2 Regional level 23
2.2.1 African human rights system 25
2.3 Conclusion 28
CHAPTER THREE: THE RIGHT TO PROPERTY AND COMPULSORY LAND
v
ACQUISITION IN GHANA 30
3.0 Introduction 30
3.1 Compulsory land acquisition: Emerging international best practice 30
3.1.1 Voluntary Guidelines 32
3.2 Human rights based approach to development 33
3.3 Brief overview of land tenure system of Ghana 34
3.4 Legislative framework 36
3.4.1 The Constitution of Ghana 37
3.4.2 State Lands Act, 1992 (Act 125) 39
3.4.3 Administration of Lands Act 1962 (Act 123) 44
3.4.4 Minerals and Mining Act, 2006 (Act 703) 46
3.5 Policy framework 48
3.5.1 National Land Policy (1999) 48
3.6 Conclusion 49
CHAPTER FOUR: CONCLUSION AND RECOMMENDATIONS 50

4.1 Summary of finding and conclusion 50
4.1.1 Legislative framework 51
4.1.2 Policy framework 51
4.2 Recommendations 52
4.2.1 International community 52
4.2.2 African Commission 53
4.2.3 Government of Ghana 53
4.2.3.1 Strengthening regulatory framework 53
4.2.3.2 Capacity building 54
4.2.3.3 Legally recognizing customary land rights 54
4.3 Investors 55
4.4 Civil society 55
BIBLIOGRAPHY 55
vi
CHAPTER ONE
INTRODUCTION
1.1 Background to the study

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 fundamental pillar of all democratic societies. 2 Whilst the right to
property is wide and may encompass any ‘vested interest’3, access to land is perhaps the
most fundamental of all property rights. This is even more relevant for developing countries
where land makes up three quarters of wealth.4 ‘The land is more than a physical entity; it is
the most important ingredient in the economic life of the people; it is religion to others and
also has political connotations’.5 For many people, access to land is essential for the
attainment of a dignified life.6 Land rights serve as a catalyst for economic growth, social
development and poverty alleviation.7 It is a crucial issue for ‘social justice and equality’.8
Access to land constitutes the basis of access to food,9 housing10 and development and the
lack of access creates vulnerability and economic insecurity for many people.11 For instance,
research has shown that lack of access to land makes women more vulnerable to HIV/AIDS
1
W Blackstone Commentaries on the Laws of England (1765-69) cited in CM Rose ‘Canons of Property Talk, or, Blackstone’s
Anxiety’ (1998-99) 108 Yale Law Journal 601.
2
A Alias & N Daud ‘Payment of adequate compensation for land acquisition in Malaysia’ (2006)12:3 Pacific Rim Property
Research Journal 326 329.
3
T R G van Banning The Human Right to Property (2002) 12.
4
H de Soto The mystery of capital: why capitalism triumphs in the West and Fails Everywhere Else (2000) 86; USAID Land and
conflict: a toolkit for intervention (2005) 35; K Deininger ‘Land policies for growth and poverty reduction: a Word Bank policy
research report’ (2003) 292.
5
P Kuntu-Mensah ‘land tenure and title registration in Ghana’ (1997) available at <
http://www.spatial.maine.edu/~onsrud/Landtenure/CountryReport/Ghana.html> (accessed 15 September 2014).
6
P Gelbspan and FGV Thea ‘Land in the struggle for social justice: social movement strategies to secure human rights’ (2013)
published by Terra de Direitos available at http://www.terradedireitos.org.br (accessed on 16 September 2014)
7
J Gilbert ‘Land rights as human rights: the case for a specific right to land’ (2013) 18 SUR Journal 115.
8
Gilbert (n 7 above) 116.
9
Commission on Human Rights, Report of the Special Rapporteur on the right to food, Jean Ziegler, U.N. Doc. A/57/356 (Aug.
27, 2002) (Ziegler Report) para 22.
10
Commission on Human Rights, Report of the Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living, Miloon Kothari, U.N. Doc. E/CN.4/2005/48 (March 3, 2005) para 41.
11
International Land Coalition ‘Towards a common platform on access to land: the catalyst to reduce rural poverty and the
incentive for sustainable natural resource management’( Rome,2003) available at <
http://www.landcoalition.org/sites/default/files/legacy/legacypdf/CPe.pdf?q=pdf/CPe.pdf > (accessed 2 August 2014).
1
infections, violence and exploitation.12 The UN Special Rapporteur on the right to food
‘believes that access to land is one of the key elements necessary for eliminating hunger in
the world’.13
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 a major
contributory factor to poverty around the world.14 For these many reasons, access to land is
clearly a human rights issue.
Land is becoming scarce as a result of population growth and large scale land acquisition for
commercial purposes use.15 This has led to adoption of many international guidelines
including the FAO Voluntary Guidelines on the Governance of Tenure of Land, Forests and
Fisheries, the World Bank Voluntary Principles on Responsible Agricultural Investments,
the UN Special Rapporteur on the Right to Food’s Principles on Large-scale Land
Acquisitions and Leases, UN Guiding Principles on Business and Human Rights, AU
Framework and Guidelines on Land Policy in Africa amongst others. Although these
guidelines are not legally binding, they provide persuasive norms that states have incentive
to follow. It has also engendered renewed discussions on the issue of land management and
land rights with some calling for the recognition of the right to land as a standalone right.16
The issue of land management is currently being discussed as one of the major themes for
the post 2015 agenda.17
12
UN Office of the High Commissioner for Human Rights (OHCHR)/ UN Women ‘Realizing women’s right to land and other
productive resources’ (2013) 2.
13
Ziegler Report (n 9 above), para 22.
14
UN-HABITAT ‘Secure Land Rights for all’ (2008) 4.
15 15
L Cotula et al ‘Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa’
(2009) 15.
16
Gilbert (n 7 above) 116-129 ; Economic and Social Council, Development Cooperation Forum, Annual 2008 High-Level
Segment Ministerial Declaration, Implementing the internationally agreed goals and commitments in regard to sustainable
development, draft declaration, UN Doc. E/2008/L.10 para 28 (July 3, 2008); United Nations Public-Private Alliance for Rural
Development, Ministerial Declaration on Rural Development, “Promoting an integrated approach to rural development in
developing countries for poverty eradication and sustainable development,”, Doc. A58/3/Rev1 (July 3, 2003) para 24; Report of
the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN
Doc. A/HRC/4/18 (Feb. 5, 2007) para 31- 33.
17
German Development Institute ‘Post 2015: Why is the Water-Energy-Land Nexus Important for the
Future Development Agenda?’ Briefing Paper 3/2013 available at <http://sustainabledevelopment.un.org/> (accessed 19
August 2014).
2
Whilst highlighting the importance of the property right to land, it is also essential to
emphasize that it is almost universally recognized that governments have the rights to
compulsorily acquire property in the public interest subject to the payment of
compensation.18 The situation is not different in Ghana. The constitution guarantees the
right to property19 and also recognizes that government may compulsorily acquire land in
the public interest or for public purpose.20 In Ghana, land is primarily owned by customary
institutions and the state can only access land through the instrument of compulsory
acquisition.21 Government also reserve the power to order the occupation of private land
which deprives land owners of seeking compensation until the land is formally acquired by
the government.22 In most instances, government’s power to order occupation of private
land is used in favour of mining companies, wherein companies can avoid paying
compensation for the land, save the chattels on the land. The use of compulsory land
acquisition powers by government has often left a trail of unsolved problems such as
unpaid compensation, lack of consultation with land owning communities, divestiture of
compulsorily acquired land for the use of private persons to the dissatisfaction of the
original owner.23
It is within this context that compulsory land acquisition and the right to property in Ghana
is discussed. This study considers the current position of Ghanaian law on compulsory land
acquisition and assesses its conformity to the human right to property under international
human rights law.
18
JL Knetsch Property rights and compensation: compulsory acquisition and other loses (1988) 142; B Denyer-Green Compulsory
purchase and compensation (2005) 64.
19
Government of Ghana, Constitution (1992) article 18.
20
Constittion of Ghana (n 19 above) article 20.
21
WO Larbi ‘Compulsory Land acquisition and compensation in Ghana: searching for alternative policies and strategies’, paper
presented at FIG/FAO/CNG International Seminar on State and Public Sector Land Management, Verona, Italy, (September 9-
10, 2008) 2.
22
Asare v Ashanti Goldfields Co and Others [I 999-2000] 1 GLR 474 – 477.
23
Larbi (n 21above) 1.
3
1.2 Problem statement
Ghana is considered to be endowed with natural resources amongst which arable land
ranks very high. It is estimated that 69.9% of the total surface of Ghana is arable24 with a
total of 50.6% of the working population of Ghana found in the agricultural sector.25 This
makes the issue of land management even more pertinent in the context of Ghana.
In spite of the importance of land in the lives of the majority of Ghanaians land management
issues are mostly approached from an economic rather than a human rights based approach.
As a result despite the constitutional guarantee of the right to property as a fundamental
human right and the requirement that property rights be curtailed in the public interest
upon the payment of fair and adequate compensation,26 this has not triggered a review of
the major compulsory land acquisition laws to reflect human rights best practices. For
instance compulsory land acquisition in Ghana is essentially completed upon the
publication of an Executive Instrument (EI) by the President, subsequent to which all
previous interests in the land are extinguished.27 There is no requirement for prior
consultation or even notification of the land owners much less informed consent. The land
owners only become involved in the process after the acquisition instrument has been
published, where compensation is payable. Compensation payment is therefore treated as a
separate issue after the acquisition and not as part of the process.28 This process excludes
the land owners from the decision-making processes.29 Experience has shown that
governments do not have the incentive to pay prompt and adequate compensation once
they are in possession of the property.
Like many African countries, land ownership in Ghana is controlled by a mixed system of
statutory and customary law. Under customary law land is ‘generally held in common and
not privately owned’.30 Customary land holding is intergenerational31 and different interests
in land may exist at the same time making land ownership and occupation more complex.
24
World Bank ‘Agricultural land(% of land area)’ available at <http://data.worldbank.org/indicator/AG.LND.AGRI.ZS> (accessed
20 August 2014).
25
Republic of Ghana, Ministry of Food and Agriculture ‘Agriculture in Ghana: Facts and Figures(2010)’ (2011) 7.
26
Constitution of Ghana (n 19 above) article 20(2).
27
Republic of Ghana, State Lands Act, 1962 (Act 125), section 1.
28
WO Larbi et al ‘ Compulsory Land acquisition in Ghana – policy and praxis (2004) 21 Land Use Policy 115 118
29
Larbi et al (n 28 above) 118; RT Abdulai ‘Land registration and poverty reduction in Ghana’ in Robert Home (ed) Local Case
Studies in African Land Law (2011) 163.
30
LK Agbosu ‘ Land law in Ghana: a contradiction between Anglo-American and customary conceptions of tenure and practices’
(2000) Land Tenure Centre – University of Wisconsin-Madison, working Paper No33 2.
31
NA Ollenu Principles of Customary Law in Ghana (1962) 23.
4
This very nature of customary landholding makes land management an interesting
challenge that requires careful attention.
Additionally, with regards to lands compulsorily acquired for mining operations, the law
shifts the obligation to the private mining companies to negotiate compensation with the
land owners32 contrary to the government’s constitutional obligation to pay compensation
for lands compulsorily acquired. This ignores the power imbalance between the mining
companies and the affected persons or communities and exposes them to exploitation by
powerful mining companies. Again, the affected communities are only involved in the
process subsequent to government entering into agreement with the mining company and
not prior. This culminates in a situation where consultation becomes a mere issue of
determining compensation and not an empowering tool aimed at ensuring that community
interests are taking into account throughout the project cycle.
In terms of institutional arrangements the Lands Commission which is responsible for

managing compulsorily acquired land for the state is also responsible for valuing
compensation raising suspicion that compensations are usually undervalued.
Compulsory land acquisition has far reaching effects including landlessness, and
deprivation of access to socio-economic rights such as food, water and housing. It also has
the tendency to impoverish affected persons and communities as it deprives them of their
basic means of subsistence.
This study therefore examines the importance of incorporating a human rights based
approach to legislative, policy and institutional framework for land administration and
especially compulsory land acquisition in Ghana. The human rights based approach ensures
that the state puts in place the necessary framework to protect the most vulnerable of
society. 33
32
Government of Ghana, Minerals and Mining Act, 2006 (Act 703) section 73.
33
United Nations, Office of the United Nations High Commissioner of Human Rights (OHCHR) Frequently Asked Questions on a
Human Rights-Based Approach to Development Cooperation :HR/PUB/06/8 (2006) 15.
5
1.3 Research objectives
The main objective of this study is to assess legislative and policy framework for
compulsory land acquisition in Ghana and examine their conformity with international and
regional human rights norms and standards for the protection of the right to property.
Other objectives include ascertaining the procedural safeguards that should be adhered to
prior to and during the process of compulsory land acquisition. The study will also identity
gaps in Ghana’s law, policy and institutional framework for compulsory land acquisition,
juxtaposed with international best practices and make recommendations for reform. The
study therefore essentially, aims to ascertain the extent to which international and regional
human rights standards for the protection of the right to property translate into domestic
law, policy and practice with regards to compulsory land acquisition in Ghana.
1.4 Research questions

This study endeavours to answer several questions. The main question is how to balance
‘national interest’ in compulsorily acquiring land for development with the right to
property. Within that broad ambit, the following sub-questions will be addressed:
- To what extend does international and regional human rights law protect the right to
property?
- When and how can the right to property be interfered with by government?
- How do Ghana’s laws, policy and institutional practice on compulsory land

acquisition reflect international and regional human rights standards recognized for
the protection of the right to property?
- How can challenges with compulsory land acquisition be brought into conformity
with international best practice?
6
1.5 Significance of the study
Land plays a central role in the Ghanaian society, especially in rural communities where
agriculture is the main source of subsistence34 and is the single most valuable natural
resource.35 It is therefore imperative that any limitation of the right to access to land as a
property right be done with utmost circumspection using a human rights based approach.
Compulsory land acquisition/occupation has left many local communities landless and
impoverish, usually not receiving commensurate replacement land or adequate
compensation.36 Whilst compulsory land acquisition is often justified as necessary for the
public interest (economic wellbeing of the state), it is essential to emphasize that economic
development should not be prioritized at the expense of poor and usually vulnerable
communities. There is the need for balancing of interests. With increasing government need
for land for infrastructure projects it is important to re-visit the issues pertaining to
compulsory land acquisition in Ghana. Ghana is currently undergoing constitutional
reform37 and a Land Administration Project with aims to reform laws, policies and
institutions in the land administration sector.38 This study is therefore timely and aims at
informing law/policy makers of the loopholes in the compulsory land acquisition and make
recommendations for the legislative, policy and institutional changes required to bring the
laws/ policies in conformity with international human rights standards.
1.6 Preliminary literature review

The right to property in international human rights law can be traced to the Universal
Declaration of Human Rights (Universal Declaration)39 and has been the subject of research
by many scholars. Jeremy Waldron argues that the right to property is a natural right which
34
O Alhasan ‘Land access and security of tenure in Ghana: some considerations for improvement’ paper presented at
International Conference on Agrarian Reform and Rural Development (ICARRD) Porto Alegre, Brazil (7-10 March 2006) 6
35
J Blocher ‘Building on Custom: Land Tenure Policy and Economic Development in Ghana’ (2006)9 Yale Human Rights and
Development Law Journal 166 169.
36
K Kassanga & NA Kotey ‘Land management in Ghana: building on tradition and modernity (2001) 18.
37
Government of Ghana ‘White paper on the Report of the Constitutional Review Commission’ available at <
http://www.ghana.gov.gh/index.php/information/reports/2572-white-paper-on-the-report-of-the-constitution-review-
commission-presented-to-the-president> (accessed 21 August 2014).
38
Republic of Ghana, Ministry of Lands and Natural Resources, ‘Ghana Land Administration Project Phase 2 Project
Implementation Manual’ (2011)6, available at <http://www.ghanalap.gov.gh/> (accessed 16 September 2014); R Spichiger & P
Stacey ‘Ghana land reform and gender equality’ (2014) DIIS Working Paper 01 7-9.
39
Articles 17 of the Universal Declaration.
7
all people are entitled to. 40 He emphasizes that the right to property encompasses three
grounds of right claims namely the recognition of the right to hold property, immunity
against uncompensated compulsory acquisition and a claim to have the state provide
property for those who do not have.41 The third claim presumes the right to property as a
socio-economic right which people require for survival. In stressing on the second claim, he
argues that the right to property must of necessity provide some guarantee against
expropriations42 and posits that
[the right to] property is an inviolable and sacred right,[and] no individual may be
deprived of it unless some public necessity, legally certified as such, clearly requires it;
and subject always to a just and previously determined compensation43
In arguing for the importance of the right to property, Theo R. G van Banning submits that
states may only interfere with the right to property upon the satisfaction of three essential
conditions namely, the interference should be prescribed by law, must be done in the public
interest and the benefits of the interference should be proportionally outweigh the
discomfort to the owner of the property.44
Rhoda E. Howard-Hassmann argues that the right to property has ‘strategic and intrinsic
values’.45 She explains that the right to property is essential for the realization of several
socio-economic rights such as the right to food and assists in development making it a
strategic right. She argues further that beyond being a strategic right, ‘it is an intrinsic
human right necessary to the preservation of human dignity’.46 She links the right to
property to the protection of vulnerable groups such as indigenous people and the poor.47
She also links the right to property to the right to privacy and the right to family and argues
that abolishing the right to property undermines family continuity and reduces self
40
J Waldron The Right to Private Property (1988) 16.
41
Waldron (n 40 above) 16-24.
42
Waldron (n 40 above) 16.
43
Waldron (n 40 above) 16.
44
van Banning (n 3 above) 84 -97.
45
R E Howard-Hassmann ‘Reconsidering the right to own property’ (2012) Human Rights & Human welfare, working paper no
68 5, <available at http://du.edu/korbel/hrhw/workingpapers> (accessed 20 August 2014).
46
Howard-Hassmann (n 45 above) 17.
47
Howard-Hassmann (n 45 above) 18-19.
8
reliance.48 She further submits that the right to property entails both negative and positive
obligations. The positive obligation requires states to provide laws that protect the right to
property whilst the negative obligation protects property from arbitrary expropriation.49 She
concludes by proposing the wording for a new convention on the right to own property
which amongst others provides criminal prosecution at the ICC for massive violation of the
right to property that exposes an ‘entire people (nation)’ to starvation.50
Writing on the right to property and compulsory land acquisition in India, Sanjoy
Chakravorty argues that in democratic states the use of compulsory land acquisition powers
must not be unconstrained but should ensure a balance between the public interest and the
right of individuals to own property.51 He emphasizes that compulsory land acquisition
laws and practices must be just; compensation should not be illusory and must aim at
putting the land owners in a better position than they were prior to the acquisition in order
to ensure ‘genuine progressive redistribution’ of resources.52 He also adds that informed
consent of the land owners should be obtained prior to the invocation of compulsory
acquisition laws.53
A general inference that can be drawn from the literature with regards to property rights is
that, for the right to be justifiably limited, public interest must be the prime consideration.
There must also be procedural justice (in accordance with law and participation of affected
persons), and adequate compensation must be provided for such encroachment. This study
aims to ascertain how the laws and policies of Ghana relating to compulsory land
acquisition adhere to these principles.
The issue of the right to property and compulsory land acquisition in Ghana has been the
subject of many studies. However, these literatures have tended to be mostly descriptive of
the inefficiencies or challenges of compulsory land acquisition from an economics and land
management perspective rather than critically examining the human rights implication of
48
49
50
Howard-Hassmann (n 45 above) 23-27.
51
S Chakravorty The Price of Land: Acquisition, Conflict and Consequences (2013)112
52
Chakravorty (n 51 above) 115-176.
53
Chakravorty (n 51 above) 176.
9
compulsory land acquisition. The right to property has generally been treated as a
constitutional right rather than a human right with the focus being placed mainly on the
payment of compensation.
The study conducted by W O Larbi et al is most closely related to this paper. They highlight
the theoretical justifications for compulsory land acquisition as well the associated costs 54
and argue that compulsory land acquisition in Ghana adopts a top-down approach which
effectively excludes land owners from participating in the process.55 They also identify some
of the challenges with the process particularly highlighting the non-payment of
compensation in some instances and recommend that a new law on compulsory land
acquisition should make compensation a condition precedent.
Akrofi and Whittal adopt similar approach and identify some of the challenges with the
laws and process. They argue that whilst compulsory land acquisition is essential for
government to carry out development projects there should be active participation by all
role-players to ensure maximum benefit to all. They also emphasize that lump sum
compensation may not be suitable for customary lands which are intergenerational and
suggest that alternative means of compensation should be explored.56
Whilst these studies provide a good insight into some of the shortcomings of compulsory
land acquisition in Ghana, they are not approached from a human rights perspective and
therefore international human rights law protection of the right to property and other
nuanced human rights issues such as poverty and gender considerations are not discussed.
This is exactly what this study seeks to do. This paper builds on previous studies to provide
a more in-depth evaluation of the protection of the right to property under international
human rights law and the compliance of Ghana’s laws, policies and institutions with these
human rights standards. It makes a significant contribution the existing literature by
examining the nature of protection that international law offers to the right to property it
54
Larbi et al (n 28 above) 116.
55
Larbi et al (n 28 above) 118-127.
56
EO Akrofi & J Whittal ‘Compulsory land acquisition and urban land delivery in customary areas in Ghana’ (2013) 2: 4 South
African Journal of Geomatics 280 285-293.
10
also draws on recent development in soft law from international organisations to analyze
international best practices that Ghana should emulate.
1.7 Research methodology

This study will be primarily based on desktop research. International and regional human
rights provisions as well as literature on the subject will be analysed to provide the
normative framework for the right to property. Ghanaian legislation, policy and
institutional framework on right to property and compulsory land acquisition will be
analysed to ascertain their conformity with international and regional human rights
standards. In appropriate instances, comparative country practices from various
jurisdictions will be utilized as best practices.
1.8 Limitations of study

The concept of property rights encompasses very wide-ranging issues that cannot be
comprehensively discussed given the limited space of this study. The paper therefore
focuses on the protection of the right to property and the safeguards to be adhered to where
the right is interfered with.
Secondly, the study aims at analyzing the compliance of Ghana’s legislation, policy and
practice in terms of compulsory land acquisition in Ghana complies with the right to
property under international and regional instruments. It would thus be ideal to conduct
interview with policy makers, implementing institutions and civil society to ascertain their
view on the subject. However due to the limited time for the study and financial constraints,
conducting interviews would not be feasible.
Thirdly, whiles it is true a greater proportion of lands in Ghana (about 80%)57 are subject to
customary law, the nature, variants of customary land holdings as well as the challenges
with customary land tenure systems are not extensively discussed save for a brief overview
provided in chapter three and the occasional references made to it in the paper.
57
FK Nyame and J Blocher ‘Influence of land tenure practices on artisanal mining activity in Ghana’(2010) 35 Resource Policy 47
50.
11
Finally, this study is not intended to be a comprehensive evaluation of all the issues
concerning compulsory land acquisition in Ghana nor a comprehensive list of
recommendation for compulsory land acquisition policy reform. Rather, it seeks to provide
a general assessment of challenges and shortcomings of the laws and policies from a human
rights perspective. Limited references are however made to the practical situation is some
instances.
1.9 Outline of chapters

Chapter one: introduction
This chapter provides the background to the study, the problem statement, significance of
the study and research questions. It also discusses the research methodology, limitations of
the study, literature review and an outline of the other chapters.
Chapter two: International and regional protection of the right to property

This chapter provides an analysis of the normative framework for the right to property
under international law. It also provides the legal framework for the right to property under
the various regional human rights systems and set the standards for measuring the
compatibility of Ghana’s legislation, policy and practice on compulsory land acquisition
with these standards. Also discussed as part of the standard setting, is the issue of
compulsory land acquisition and procedural safeguards that should accompany its
invocation.
Chapter three: property rights and compulsory land acquisition in Ghana

This chapter analyzes the legislative, policy and institutional framework property rights and
compulsory land acquisition in Ghana. It then explores their sufficiency in ensuring the
protection of the right to property in Ghana and identifies the relevant gaps. These gaps are
compared to approaches adopted in other jurisdictions in safeguarding the right to
property.
12
Chapter four: conclusions and recommendations
This chapter draws conclusions on the findings and makes recommendations on legislative
and policy changes that need to be effected in order to bring Ghanaian law and practices on
compulsory land acquisition in conformity with the right to property under international
human rights law.
13
CHAPTER TWO
INTERNATIONAL LEGAL FRAMEWORK FOR THE PROTECTION OF

THE RIGHT TO PROPERTY
2.0 Introduction
The right to property has always been and continues to be subject to political contestation.58
Even six decades after it was proclaimed as a fundamental right in the Universal Declaration, its
status as a universal human right is still contested by many.59 With this background in mind,
this chapter 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. The gaps in
operationalizing these instruments are also identified. It will acknowledge that international
human rights law does not provide sufficient protection for the right to property.
2.1 international level
2.1.1 The Universal Declaration of Human Rights and the right to property
The Universal Declaration on human rights is the cornerstone of modern international human
rights law.60 A chronological evaluation of the development of the right to property under
international human rights law must therefore commence with the Universal Declaration.61
Whilst declarations are not generally binding under international law, Declarations of the UN
are strong expressions of international law principles. The Universal Declaration has been
proclaimed as ‘a common understanding of the peoples of the world concerning the inalienable
and inviolable rights of all members of the human family and constitutes an obligation for the
58
van Banning (n 3above) 5.
59
C Krause & G Alfredsson, ‘Article 17’, in Gudmundur Alfredsson and Asbjørn Eide (eds), Universal Declaration of Human
Rights, A Common Standard of Achievement (1999) 359 365.
60
WA Schabas The Universal Declaration of Human Rights: The travaux préparatoires, volume 1, October 1946 to November
1947 (2013) xxxvii ; L Cortula ‘Property Rights, negotiating power and foreign investment: An international and comparative law
study of Africa’ (2009) 87 Unpublished PhD thesis, University of Edinburgh.
61
C Golay & I Cismas ‘Legal opinion: the right to property from a human rights perspective’ (2010)3.
14
members of the international community’.62 Consequently some scholars have argued that the
Universal Declaration has evolved into customary international law through periodic
reaffirmation by the United Nations General Assembly (UNGA) and other international
institutions.63 The Universal Declaration without doubt has incontestable ‘political standing and
symbolic importance’64 as an authoritative enumeration of universally recognized human
rights65.
The notion that the right to property should exist irrespective of national law was revived by
the Universal Declaration ‘as part of the modern human rights movement’. 66 It is the only
‘major global instrument’ that provides for the protection of the right to property.67Article 17 of
the Universal Declaration 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’.68
The first clause provides in general terms recognition of the right to property as fundamental
human right whilst the second clause limits the ability of states to arbitrarily interfere with the
enjoyment of the right. It is worthy to note that article 17 protects both individual and collective
property ownership rights (‘alone as well as in association with others’).
It must be acknowledged that article is quite vague69 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 type of things which may
be owned.70 A study of the travaux préparatoires reveals that the rather open and vague
formation of article 17 resulted from the disagreement among states on the exact scope of the
62
Proclamation of Teheran, Final Act of the International Conference on Human Rights U.N. Doc. A/CONF. 32/41 at 3 (1968)
para 2.
63
H Hannum ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995) 25 Georgia
Journal of International and Comparative Law 287.
64
K Decker et al ‘Human Rights and Equitable development: “ideals”, issues and implications’ background paper for the World
Development Report (2006) 10, available at <http://siteresources.worldbank.org/INTWDRS/Resources/477365-
1327693659766/8397901-1327773323392/Human_Rights_and_Equitable_Development_Ideals_Issues_and_Implications.pdf>
(accessed 4 September 2014).
65
L Henkin ‘The International Bill of Rights: the Universal Declaration and the Covenants’ in R Bernhardt and JA
Jolowizc (eds.) International Enforcement of Human Rights (1987) 1-6.
66
JG Sprankling ‘The global right to property’ (2014) 52 Columbia Journal of Transnational Law 464 468.
67
van Banning (n 3 above) 36.
68
Article 17 (1) & (2) of the Universal Declaration.
69
van Banning (n 3 above) 41.
70
JG Sprankling ‘The emergence of international property law (2012) 90 North Carolina Law Review 461.
15
right.71 Indeed the initial draft proposed by the Drafting Committee which was contained in
article 19 explicitly required public interest justification for deprivation of the right and
payment of compensation.72 Article 19 read in part: ‘[e]veryone has the right to own personal
property. No one shall be deprived of his property except for public welfare and with just
compensation...’73 This draft generated disagreement amongst states with many states including
the USSR and France proposing that the right to property should be subject to national law.74
These proposals were rejected by other states arguing that human rights being universal cannot
be completely subject to national law and hence international oversight was essential.75 In the
end the present article 17 was adopted as a compromise.76
Unlike the initial draft, the final article does not provide much guidance on the extent to which
the right may be limited and appropriate safeguards, excepted for the ‘arbitrariness’ standard.
However 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 UNGA has repeatedly called on
states through resolutions to respect.77 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 17.78 To that extent the ‘arbitrariness’ standard has been interpreted to
implicitly require the payment of compensation for compulsory acquisition.79 It has also been
interpreted to implicitly require a public purpose justification, non-discrimination and
procedural fairness.80 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 takings.
71
J Morsink The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999) 146; van Banning (n 3 above) 38.
72
Van Banning ( n 3 above) 37-38.
73
Report of the Drafting Committee to the Commission on Human Rights, UN Doc E/CN.4/21 (July 1, 1947).
74
van Banning (n 3 above) 37-38.
75
Van Banning (n 3 above) 38.
76
Van Banning 39; Morsink (n 74 above) 146-152
77
G.A. Res. 41/132, U.N. Doc. A/RES/41/132(Dec. 4, 1986); G.A Res. 43/123, U.N. Doc. A/RES/43/123 (Dec. 8, 1988); G.A. Res.
45/98, U.N. Doc. A/RES/45/98 (Dec. 14, 1990).
78
L Cotula (n 60 above) 91.
79
C Krause ‘The right to property’, in A Eide, C Krause and A Rosas (Eds),Economic, Social and Cultural Rights – A Textbook
(1995) 143‐157 151.
80
Cortula (n 60 above) 91.
16
Whilst the UDHR provides some protection for the right to property, its non-binding nature
means that there is no treaty body to monitor states’ compliance with the obligations imposed
by the right.
2.1.2 The Covenants
The aim of the framers of the Universal Declaration was that it would culminate in a binding
human rights treaty that imposes obligations on member states.81 The Contents of the Universal
Declaration were eventually transformed into two binding human rights treaties, the
International Covenant on Civil and Political Rights (ICCPR)82 and the International Covenant
on Economic Social and Cultural Rights (ICESCR)83(together, the Covenants). The right to
property was the only right contained in the Universal Declaration which was not repeated as a
‘broadly formulated right’ in either of the Covenants. The right to property was initially
included in the draft ICESCR and received support from most states. However, disagreements
between the eastern bloc and the west and between the north and newly decolonized south on
the restrictions that states could impose on the right to property lead to its eventual exclusion.84
Neither was the right to property included in any of the optional protocols to the Covenants.
Discriminations on the grounds of property is however proscribed by both Covenants.85.It is
worthy to note that that the ICESCR contains some rights which bother on the right to property
such as the right to housing86 and the right to intellectual property.87
Scholars 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.88 Louis Henkin notes that the omission ‘can hardly
be construed as a rejection of the existence of the principle of a human right to own property
81
Van Banning (n 3 above) 42.
82
International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171.
83
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
84
Van Banning (n 3 above) 45; WA Schabas ‘The omission of the right to property in the international covenants’ (1991) 4
Hague Yearbook of International Law 135-170; Annotations on the text of the draft International Covenants on Human Rights, 1
July 1995, UN Doc. A/2929, para. 197, 202, 206.
85
Article 2(2) of ICESCR; article 2(1) & 26 of ICCPR ; L Levin Human Rights: Questions and Answers 197.
86
Article 11 of the CESCR.
87
Article 15 of CESCR; Levin (n 88 above) 197.
88
WA Schabas ‘The omission of the right to property in the international covenants’ (1991) 4 Hague Yearbook of International
Law 135-170.
17
and not to be arbitrary deprived of it’.89 The Human Rights Committee (HRC) has through
general comments and communications recognized the right to property, though only on the
basis of non-discrimination. For instance in its General Comment 2890 the HRC explains that
article 16 of the ICCPR implies that women have the capacity to own property,91 and concludes
that states therefore have an obligation to ensure that their matrimonial laws allow both
spouses to own property. Similarly the HRC has in many communications ordered the
restitution of property or compensation where property has been confiscated on discriminatory
basis.92 These decisions have however only bothered on discrimination relating to property
rights in terms of article 16 of the ICCPR and not an acknowledgement by the Committee that
the ICCPR guarantees the right to property. Indeed in many instances the Committee has held
that the ICCPR does not guarantee the right to property. The non inclusion of the right to
property in either of the Covenants has thus weakened the protection of the right to property
under conventional international human rights law. The right to property has however received
recognition in group specific treaties, some of which are briefly highlighted in the next section.
2.1.3 Group specific treaties
Subsequent to the Universal Declaration, the right to property has received recognition in many
group based human rights treaties within the UN system. Adopted in 1951, 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,93 intellectual property94 and transfer of property brought into the host country to
another country.95 The Convention relating to the Status of Stateless Persons which was adopted
in 1954 contains similar provisions in corresponding articles.96
89
L Henkin ‘Introduction’ In L Henkin (ed) The International Bill of Rights: The Covenant on Civil and Political Rights (1981) 21.
90
Human Rights Committee, General Comment 28, Equality of rights between men and women (article 3), U.N. Doc.
CCPR/C/21/Rev.1/Add.10 (2000).
91
General Comment 28 (n 93 above) pare 19.
92
Bohuslav Zavrel v The Czech Republic, Communication No. 1615/2007, U.N. Doc. CCPR/C/99/D/1615/2007 (2010; Simunek v
The Czech Republic, Communications No. 516/1992.
93
Article 13 of Convention Relating to the Status of Refugees.
94
95
96
Convention relating to the Status of Stateless Persons (1954) articles 13, 14 & 30.
18
The right to property is also recognized by the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW). Article 16 obliges member states to ‘ensure, on a
basis of equality of men and women: . . . [t]he same rights for both spouses in respect of the
ownership, acquisition, management, administration, enjoyment and disposition of property’.97
Similarly, the International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD), 1965 also guarantees everyone ‘the right to own property alone as well
as in association with others’ on a non-discriminatory basis.98 The right to property is also
recognized in the International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families which guarantees migrant works protection from
arbitrary deprivation of their property and the right to fair and adequate compensation for
interference with the right .99
The Convention on the Rights of Persons with Disabilities (CRPD) also requires states to ‘take
all appropriate and effective measures to ensure the equal right of persons with disabilities to
own or inherit property…’100 Despite the recognition of the right to property in these treaties,
there is limited guidance on the safeguards to should be adopted in the event of expropriation
of such property.
Finally, the International Labour Organization Convention 169 relating to indigenous and tribal
people (ILO Convention 169) and UN Declaration on the Rights of Indigenous People
recognizes amongst others the right of indigenous people to property and to participate in any
decision that affects this right.101 In cases where relocation of indigenous people is unavoidable
their consent is required.102 Whilst the ILO Convention 169 and the UN Declaration provides
some instructive guides on the safeguards that should precede deprivation of the right to
property, they are not of universal application as these requirements only apply to indigenous
people – a rather contested issue in many African countries. As a result, whilst the concept of
free prior and informed consent of communities affected by development initiatives that
97
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) September 30, 1981, 1249 U.N.T.S. 13
, art. 16(1)(h).
98
International Convention on the Elimination of All Forms of Racial Discrimination 1965, article 5(v).
99
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18,
1990, 2220 U.N.T.S. 3, article 15.
100
Convention on the Rights of Persons with Disabilities art. 12(5).
101
ILO Convention 169, article 4; UN Declaration on the Rights of Indigenous People, article 19.
102
ILO Convention 169, article 16 of; UN Declaration on the Rights of Indigenous People article 32.
19
deprives them of their property rights in land is gaining international attention as an essential
element of sustainable development, focus has been on indigenous communities with little
attention paid to non-indigenous communities.
2.1.4 The right to property as customary international law

Among the recognized sources of international law is ‘international custom, as evidence of
general practice [usus] accepted as law [opinio juris]’.103 Thus beyond states giving their express
consent to be bound by treaties, customary rules of international law can be inferred from their
conduct.104 To qualify as custom the rule need not be universally accepted – ‘general’ or
‘widespread acceptance’ is sufficient.105 State practice is deemed satisfied where there is
‘constant and uniform usage’106. Evidence of state practice can be found in national legislation,
decisions of national courts, and government policy statements amongst others.107 Scholars
differ on how widespread the practice must be. It has been suggested that such a practice must
be ‘representative of the “the main forms of civilization and of the principal legal systems of the
world”’.108 State practice on its own is however not sufficient to create a customary rule.109 In
addition, states must feel obliged to be bound by the rule in question. Thus in the words of
article 38(1)(b) of the Statute of the International Court of Justice (ICJ), the rule must be
‘accepted as law’ by the states concerned. Opinio juris is difficult to prove and has thus
consequently been argued by some scholars that it should be presumed from the general
practice of states.110 Others suggest that both usus and opinio juris can be inferred from repeated
resolutions or recommendations of the political organs of the UN such as the UNGA and the
Security Council on a particular subject matter since such declarations may give credence to
collective practice by states.111 Whilst this is not without debate, it is suggest that this is more so
103
Statute of the International Court of Justice, article 38(1)(a).
104
J Dugard International Law: A South African Perspective 26.
105
Fisheries Jurisdiction Case (United Kingdom v Iceland) 1974 ICJ Reports 3 23-26.
106
Asylum Case (Columbia v Peru)1950 ICJ Reports 266.
107
Dugard (n 107above) 26.
108
JH Currie Public International Law (2008) 190.
109
Dugard (n 104 above) 29.
110
I Brownlie Principles of Public International Law (2008) 8 ; Judge Tanaka, dissenting opinion in the North Continental Shelf
Cases 1969 ICJ Reports 176.
111
Dugard (n 104 above) 30.
20
where such resolutions or recommendations are passed without substantial negative votes.112
Thus opinio juris may be inferred from ‘the attitudes of . . . States towards certain General
Assembly resolutions’.113
State practice is almost unanimous on the recognition of the right to property.114 As one scholar
notes, 95% of the 193 UN member states recognize the right to property in their constitutions or
national legislation.115 Even the hard socialist leaning Soviet Union bloc and its allies including
China which were opposed to global recognition of the right to property have subsequent to the
end of the cold war and the dissolution of the Soviet Union recognized the right to property in
their national constitutions.116 It is rife to conclude that the requirement of state practice for the
recognition of the right to property as customary international law is satisfied.
The opinio juris requirement somewhat presents a difficult question. Some scholars argue that
many states originally recognized the right to property in domestic law because it was seen as
advantageous tool to attract foreign investment and not necessarily because states believed they
had an obligation under international law.117 Nonetheless it has been suggested that the original
intent of recognition would not negate the existence of opinio juris if there is subsequent
expression of belief that international law imposes a binding obligation in that regard.118 To this
end, the fact that more than two-thirds of the members of the UN (132 out of 193 states)119 have
expressly recognized the binding nature of the right to property through binding regional
human rights treaties should provide ‘sufficient evidence of opinio juris’120
It is also suggested that the opinio juris requirement is satisfied given the almost universal
ratification of group based treaties such as the ICERD, CEDAW and CRPD which recognize the
right to property. Some scholars even argue that the Universal Declaration (which guarantees
112
Dugard (n 107above) 30-32; Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 1996 ICJ Reports 226,
cited in Dugard (n 107above) 33.
113
Military & Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 99-100.
114
JG Sprankling International Property Law (2014) 217.
115
Sprankling (n 66 above)480.
116
Sprankling (n 66 above) 487.
117
118
119
53 states have ratified the African Charter available at <http://www.achpr.org/instruments/achpr/ratification/> , 23 states
have ratified the American Convention on Human Rights available at <http://www.oas.org/dil/treaties_B-
32_American_Convention_on_Human_Rights_sign.htm> , 11 states have ratified the Arab Charter , 45 states have ratified the
First Protocol to the European Convention available at
<http://www.conventions.coe/int/Treaty/Commun/ChercheSig.asp?NT=009&CM=8&DF=28/02/2013&CL=ENG>.
120
Sprankling (n 69above) 488.
21
the right to property) has evolved into customary international law through periodic
reaffirmation by the UNGA and other international institutions.121 Whilst this view is contested,
the repeated endorsement of the Universal Declaration consistently by almost all states gives
credence to the existence of opinio juris on the right to property in the same way as other
provisions of the Universal Declaration.122
Additionally, the absence of opposition to UNGA resolutions calling on member states to

protect the right to property provide further evidence of the existence of opinio juris on the right
to property. The UN General Assembly Resolution 41/132 (adopted in 1986) endorsed the right
property in terms of article 17 of the Universal Declaration, stressing that the right to property
was important for the enjoyment of ‘other basic human rights’.123 The resolution was supported
by 109 states with no state voting against it though 41 states abstained.124 Subsequently,
Resolutions 43/123 (1988),125 45/98 (1990)126 which had a similar theme were also adopted
without any opposition. The fact that these resolutions were adopted without any negative vote
reinforces the status of the right to property as customary international law.
Suffice it to say that there is compelling evidence to support the conclusion that the right to
property has received recognition as a rule of customary international law, as evidenced by
state practice with regards to provision of the right to property in constitutions and legislation
and states’ non-opposition to General Assembly resolutions endorsing the right to property.
However, beyond the recognition of the right to property as a universal right, the protection of
the right under international human rights law is rather weak. There is limited guidance on the
normative content of the right as well as the human rights standards that should be adhered to
121
Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law(1996) 25 Georgia
Journal of International & Comparative Law 321, 323-25.
122
BD Lepard, Customary International Law: A New Theory With Practical Implications(2010) 318-327.
123
G.A. Res. 41/132, U.N. Doc. A/RES/41/132(Dec. 4, 1986).
124
Sprankling (n 117 above) 219 ; United Nations Bibliographic Information System, ‘Voting Record Search’ –UN Resolution
A/RES/41/132 available at
<http://unbisnet.un.org:8080/ipac20/ipac.jsp?session=1412C44448L4I.7244&menu=search&aspect=power&npp=50&ipp=20&s
pp=20&profile=voting&ri=2&source=~%21horizon&index=.VM&term=ares41132&x=0&y=0&aspect=power>.
125
G.A Res. 43/123, U.N. Doc. A/RES/43/123 (Dec. 8, 1988); United Nations Bibliographic Information System, ‘Voting Record
Search’ –UN Resolution A/RES/43/123 available at
<http://unbisnet.un.org:8080/ipac20/ipac.jsp?session=1T1413F630116.24605&menu=search&aspect=power&npp=50&ipp=20
&spp=20&profile=voting&ri=1&source=~%21horizon&index=.VM&term=ares43123+&x=0&y=0&aspect=power >.
126 126
G.A. Res. 45/98, U.N. Doc. A/RES/45/98 (Dec. 14, 1990); United Nations Bibliographic Information System, ‘Voting Record
Search’ –UN Resolution A/RES/45/98 available at
<http://unbisnet.un.org:8080/ipac20/ipac.jsp?session=1T1413F630116.24605&menu=search&aspect=power&npp=50&ipp=20
&spp=20&profile=voting&ri=2&source=~%21horizon&index=.VM&term=ares4598+&x=0&y=0&aspect=power >.
22
when the right is deprived, for instance through compulsory acquisition. Issues such as
determination of compensation are still left to the discretion of national legislation. The
weakness of the right to property under international human rights law is somehow
compensated by protection under regional human rights systems which are discussed next.
2.2 Regional level

In addition to the recognition of the right to property under the universal human rights system,
all regional human rights systems recognized the right to property as a fundamental human
right. Before focusing on the right to property under the African Charter, it is useful to briefly
look at the protection of the right to property under these regional human rights systems.
In Europe, the right to property was not initially provided for in the European Convention on
Human Rights (ECHR)127 for similar reasons as those that impeded the inclusion of the right in
the Covenants.128 However, it was included in the first Protocol to the ECHR. Article 1 of the
Protocol129 guarantees the right of both natural and legal persons the right to ‘the peaceful
enjoyment of [their] possessions’ which may only be deprived in the public interest subject to
the conditions provided by and general principles of international law.130 The European Court
of Human Rights has developed article 1 of the protocol through its jurisprudence to include
the requirement that the public interest must not only be legitimate131 bust must also be
proportionate – maintaining a ‘fair balance’ between the public interest and the individual’s
fundamental right to own property.132 Additionally, whilst the protocol does not expressly
require the payment of compensation for compulsory acquisition of property, the European
Court has clarified this requirement is implicit and that compensation must be ‘reasonably
related’ to the property acquired.133
127
European Convention on Human Rights (ECHR), Nov. 4, 1950, 213 U.N.T.S. 221.
128
DS Weissbrodt & C de la Vega International Human Rights Law : An Introduction(2007) 94; A Grgic et al ‘The Right to
Property under the European Convention on Human Rights: A guide to the implementation of the European Convention on
Human Rights and its protocols’ (2007) 5 Human Rights Handbooks No 10.
129
Protocol No 1 to the European Charter on Human Rights.
130
Article 1 of the first Protocol to the ECHR.
131
James and others v the United Kingdom(1986) 8 EHRR 123, para. 46.
132
Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69.
133
James v UK, para 54; Lithgow and others v United Kingdom (1986)8 EHRR329 , paras 109-120.
23
In the Inter-American human rights system, the right to property is proclaimed in article xxiii of
the American Declaration on Rights and Duties of Man which provides for the right to private
property ‘as meets the needs of a decent living and helps to maintain the dignity of the
individual and the home’.134 It is further protected in article 21 of the American Convention on
Human Rights (ACHR) which guarantees everyone the right to ‘the use and enjoyment of his
property’ which may be interfered with for ‘public utility or social interest’.135 Unlike the ECHR,
the ACHR expressly requires the payment of ‘just compensation’ for deprivation of property.
The Inter-American Commission and Court have given broad interpretation to article 21
especially with regards to compulsory acquisition of lands belonging to indigenous or tribal
peoples. For instance the Inter-American Court has held that states have an obligation to take
steps for the recognition of the right of indigenous people to occupy their traditional lands and
that any decisions affecting such lands must be preceded with informed consent and subject to
the payment of fair compensation.136 The Inter-American Court has also similarly held.137
The Arab Charter on Human Rights which came into force in 2008 guarantees the right of
everyone to own ‘private property’ which shall not be deprived in an ‘arbitrary or unlawful
manner‘138
Finally the Association of Southeast Asian Nations (ASEAN) has recently adopted the ASEAN
Human Rights Declaration which recognizes in article 17 the right of everyone to ‘own, use,
dispose of and give that person’s lawfully acquired possessions alone or in association with
others’ and not to be ‘arbitrarily deprived of such property’.139 The member states intend to
enter into a binding instrument which recognizes the rights proclaimed in the declaration
including the right to property.140 Special attention is now focused on the African Regional
System.
134
American Declaration of the Rights and Duties of Man, Organization of American States OEA/SER.L./V.1I.23, doc. 21 rev. 6
(1948), Article XXIII.
135
American Convention on Human Rights, Organization of American States Nov.22, 1969, O.A.S.T.S No. 36, 1144 U.N.T.S. 123,
article 21.
136
Maya Indigenous Communities and their Members (Case 12.053 (Belize)), Report No. 40/04, Inter-American Commission on
Human Rights (12 October 2004) at para 142.
137
Case of the Mayagna (Sumo) Community of Awas Tingni v Nicaragua, Inter-American Court of Human Rights (31 August
2001) para 153.
138
Article 31 of Arab Charter on Human Rights 2004 reprinted in (2006) 24 Boston University International Law Journal 147
139
ASEAN Human Rights Declaration (2012) available at <http://www.asean.org/news/asean-statement-
communiques/item/asean-human-rights-declaration> (accessed 20 September 2014).
140
24
2.2.1 African human rights system
The right to property is protected under article 14 of the African Charter on Human and
Peoples’ Rights (ACHPR) which affirms that
The right to property shall be guaranteed. It may only be encroached upon in the interest of
public need or in the general interest of the community and in accordance with the provisions of
appropriate laws.
Subsequent instrument such as the Protocol to the African Charter on Human and People’s
Rights on the Rights of women in Africa (Maputo Protocol) also protects the right of married
women to own property.141 The Maputo Protocol also provides for the right to land as one of the
key elements of the right to food security. 142It further requires states to guarantees all women
the right to property as an essential component of the right to sustainable development.143
Unlike the ECHR and ACHR the ACHPR does not provide details on the right holders (whether
individuals, groups or legal persons) nor the normative content of the right but merely commit
states to guarantee the right to property.144 Article 14 does not also explicitly require the
payment of compensation for compulsory acquisitions; neither does it provide protection
against arbitrariness nor proportionality. The inclusion of the right to property in the ACHPR
has even been criticized one scholar as being of ‘questionable facility in the African context’
given the varied tenure systems in African societies and the fear that the right to property
ultimately favours entrenched interests.145 Article 14 has also been criticized as having ‘the
most far reaching claw-back clause in the Charter’ which makes it subject to abuse and has the
tendency to defeat the purpose of the right.146
However the African Commission on Human and Peoples’ Rights (African Commission) has
provided some clarity on the content of the right through several non-binding documents. For
141
Maputo Protocol, article 6(j).
142
Maputo Protocol, article 15(a).
143
Maputo Protocol, article 19(c).
144
F Ouguergouz The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and
Sustainable Democracy in Africa (2003) 153.
145
J Oloka Onyango ‘Beyond the rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa (1995) 26
California Western International Law Journal 49.
146
CA Odinkalu ‘Implementing Economic Social and Cultural Rights under the African Charter on Human and Peoples’ Rights’ in
MD Evans & R Murray (eds) The African Charter on Human and Peoples’ Rights: The System and Practice, 1986-2000 (2002)191.
25
example, the Draft Principles and Guidelines on Economic Social and Cultural Rights in the
African Charter adopted by the African Commission in 2011provides that the right to property
protects the rights of both individuals and groups to the acquisition and peaceful enjoyment of
property. It also clarifies that the right to property protects the communal ownership of land
and other natural resources and places an obligation of states to ensure security of tenure,
prevent interference by third parties as well as state agents. The right may be only be limited by
states for legitimate public interest in a ‘non-arbitrary manner, according to the law and the
principle of proportionality’. Effective public participation is required in any acquisition process
and there must be payment fair compensation which must generally be reasonably related to
market value of the property.147
The State Party Reporting Guidelines for Economic Social and Cultural Rights in the African
Charter adopted by the African Commission in the same year mirrors these requirements and
emphasises on the obligations of states to report on legislative and practical measures taken to
ensure the enjoyment of the right to property on a non-discriminatory basis. It also provides
indication that compulsory acquisition of property must be conducted transparently, balances
the public interest with the right to own property and subject to the payment of fair
compensation.148
Whilst these guidelines are instructive they fall short of requiring free prior and informed
consent during compulsory acquisition process. There is also no guideline on the time frame for
the payment of compensation such as for example whether compensation should be paid prior
to taking possession of the property compulsorily acquired.
In addition to this, the African Commission in performing its protective mandate as a quasi-
judicial organ has developed jurisprudence through a number of communications which
provide further clarity on the right to property. In the Mauritania Case149 the African
147
African Commission, Draft Principles and Guidelines on Economic Social and Cultural Rights in the African Charter on Human
and Peoples’ Rights ,(24 October 2011) Principle 51-55.
148
African Commission, State Party Reporting Guidelines for Economic Social and Cultural Rights in the African Charter on
Human and Peoples’ Rights adopted (24 October 2011), Guideline 7(A).
 149
Communication 54/91, 61/91, 98/93, 164/97, 196/97, 210/98, Malawi African Association and others v Mauritania,
Eighteenth Annual Activity Report.
26
Commission held that the arbitrary expropriation of the lands of black Mauritanians without
adequate compensation amounted to a violation of the right to property. In Institute for Human
Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola the African
Commission emphasized that compensation must be determined by an ‘impartial tribunal’.150
Similarly, in the Ogoni Case151 the African Commission held that the removal of people from
their homes arbitrarily was a violation of the right to property as well as the right to housing
which according to the African Commission was implicit in the right to property. The
Commission stressed that states must always provide meaningful opportunity for individuals
to participate in development decisions affecting them.152
So far the most extensive expatiation on article 14 of the ACHPR was expressed by the African
Commission in the Endorois Case.153 The African Commission interpreted the right to property to
include the right of indigenous communities to the possession use of their communal lands
without registered formal legal title154 and laid down detailed justifications for the deprivation
of the right to property. The Justifiability of the deprivation of the right to property of the
Endorois community by way of eviction from their communal lands was examined by the
African Commission against the criteria of public interest, proportionality, effective
participation, prior consent, adequate compensation and prior impact assessment.155 The
African Commission held that proportionality requires that a measure as least restrictive as
possible which does not erode the right or make it illusory should be preferred.156 The
Commission also noted that consultation and fair compensation are essential components of the
article 14 requirement of ‘in accordance with law’ and in the case of indigenous people consent
must be obtained.157 Failure to allow effective participation or prior consultation, and prior
social impact assessment amounted to a violation of the right to property.158
150
Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola 2008) AHRLR 43
(ACHPR 2008) para 73.
151
Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (Ogoni Case).
152
Ogoni Case Para 53.
153
Centre for Minority Rights Development & Others v Kenya (2009) AHRLR 75 (ACHPR 2009) (Endorois Case).
154
Endorois Case paras 187-209.
155
Endorois Case (n 81 above) paras 212-218 & 224-228; SA Yeshanew ‘Approaches to the jusiticiability of economic, social and
cultural rights in the jurisprudence of the African Commission on Human and Peoples Rights: Progress and perspectives’ (2011)
11 African Human Rights Law Journal 317 328..
156
157
158
27
Whilst the jurisprudence particularly focuses on indigenous communities, it is submitted that
the challenges faced by many rural communities in Africa are not much different from those of
indigenous people. Majority of rural African communities depend on depend on land for their
livelihood and food security159 in much the same way as indigenous people. As such, the same
precautions that apply when indigenous people are deprived of their property rights should
apply to all rural African communities who are dependent on access to land held under
customary systems for their livelihood and sustenance.
The jurisprudence of the African Commission however faces challenges as they are viewed by
State Parties as mere recommendations and often not taken seriously.160 This is in addition to
the absence of a formal mechanism to ensure that recommendations made by the African
Commission are enforced.161 It is hoped that the African Court will provide an avenue for
enforcement of the recommendations of the African Commission though the Court has not
contributed much at the moment.162
2.3 Conclusion
This chapter mapped out the development of the right to property under international and
regional human rights law. The right to property has emerged at the international level initially
in non-binding declarations and subsequently in binding group based human rights treaties.
Subsequent state practice also gives credence to the recognition of the right to property as a
universal human right both as a general principle of law and customary international law.
Therefore even though there is no general global treaty-based human right to property163 it
cannot be denied that the right to property has received recognition under international human
159
Cotula et al (n 15 above) 17.
160
C Mbazira ‘Enforcing the Economic Social and Cultural Rights in the African Charter on Human and Peoples’ Rights :Twenty
years of redundancy ,progression and significant strides’(2006) 6 African Human Rights Law Journal 333-338.
161
Mbazira (n 160 above) 333; G Bekker ‘Mass expulsion of foreign nationals: A ‘special violation of human rights’ —
Communication 292/2004 Institute for Human Rights and Development in Africa v Republic of Angola’ (2009)9 African Human
Rights Law Journal 262-273.
162
Mbazira (n 160 above) 333.
163
R Higins The taking of property by the state: recent developments in international law (1982) 259-348; W Kälin and J Künzli
The Law of International Human Rights Protection (2009) 432.
28
rights law. It must however be acknowledged that the protection of the right to property under
international human rights law is rather weak. There is not much guidance on the safeguards
that states must adopt when the right is limited or deprived. Few conclusions can drawn from
the present state of the right to property under the UN system making it imperative that the
international community give further consideration to the right.
Regional human rights systems have stepped in and provided protection for the right to
property. In the African context the African Commission has through its jurisprudence
provided some clarity on the right to property. The extent to which Ghanaian law on
compulsory land acquisition adhere to this standards is discussed in the next chapter.
29
CHAPTER THREE
THE RIGHT TO PROPERTY AND COMPULSORY LAND

ACQUISITION IN GHANA
3.0 Introduction
This chapter examines the laws and policies on the right to property and compulsory land
acquisition in Ghana. These are evaluated to ascertain the extent to which they are compliant
with international human rights law and best practice. Best practices from other countries are
also used to provide practical guidance on how human rights can be incorporated into
compulsory land acquisition process. It contends that whilst the Constitution provides quite a
progressive approach to the protection of the right to property this has not triggered the
revision of relevant laws and policies on compulsory acquisition to make them compliant with
international human rights standards.
This chapter is dived into 6 parts – the first section briefly introduces various soft law
advancements at the international level aimed at protecting property rights, section 2 briefly
introduces what the human rights based approach to development entails; section 3 provides
an overview of the land tenure systems of Ghana to provide a context for subsequent
discussions in section 4 and 5 which respectively examines the legislative and policy framework
for compulsory land acquisition; section 6 provides conclusion.
3.1 Compulsory land acquisition: Emerging international best practice
The vacuum left by the omission of the right to property in either of the Covenants164 has led to
the development of many soft law instruments aimed at addressing property rights in land and
providing guidelines to be adhered to when the rights are interfered with. These include
Principles on housing and property restitution for refugees and displaced persons (“the
164
As discussed in Chapter two, neither the ICCPR nor the ICESCR provides for the right to property.
30
Pinheiro Principles”), 165 which was endorsed by the UN Sub-Commission on Promotion and
Protection of Human Rights, Basic Principles and Guidelines on Development-Based Evictions
and Displacement166 developed by the former Special Rapporteur on the Right to Housing, the
Word Bank lead Principles for Responsible Agricultural Investment,167 the Minimum Principles
relating to and measures relating to large scale land acquisitions,168 developed by the former
Special Rapporteur on the right to food, Framework and Guidelines on Land Policy in Africa169
and the FAO led Voluntary Guidelines on Responsible Tenure of Governance of Land
(Voluntary Guidelines)170 amongst others. International financial institutions such as the World
Bank, International Finance Corporation (IFC) and African Development Bank (AfDB) have also
developed policies on compulsory land acquisition. While these soft law instruments are
generally not legally binding they create legal norms that states are inclined to follow and in
some instances have formed the bases for conventional law under international law.171 For the
purpose of this study, particular attention is paid to the Voluntary Guidelines which is briefly
discussed below. The Voluntary Guidelines were chosen over others because their drafting was
broadly consultative involving more than 70 countries across the various regions, international
organizations, civil society and the private sector and therefore has broad legitimacy.172 The
Voluntary Guidelines have subsequently received broad support and their implementation has
been encouraged by the UN General Assembly, RIO+20 and G20.173 The Voluntary Guidelines
are not only attentive to indigenous people; the rights of other groups subject to customary land
tenure who are not necessarily indigenous people are also given equal attention. This is
165
UN Sub-Commission on the Promotion and Protection of Human Rights, Principles on Housing and Property Restitution for
Refugees and Displaced Persons, 28 June 2005, E/CN.4/Sub.2/2005/17, available at
<http://www.refworld.org/docid/41640c874.html> [accessed 28 October 2014].
166
Human Rights Council, Report of the Special Rapporteur on adequate housing as a component
of the right to an adequate standard of living, Miloon Kothari, ‘Basic principles and guidelines on development-based
evictions and displacement’ 5 February 2007, A/HRC/4/18, annex I..
167
Principles for Responsible Agricultural Investment that Respects Rights, Livelihoods and Resources – Extended Version
(2010), FAO/IFAD/UNCTAD/World Bank Group.
168
A/65/281.
169
AUC-ECA-AfDB Consortium ,Framework and Guidelines on Land Policy in Africa: Land Policy in Africa – A framework to
strengthen land rights, enhance productivity and secure livehoods (2010).
170
FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National
Food Security (2012).
171
I Johnstone ‘Law-Making through the Operational Activities of International Organizations (2008) 40 George Washington
International law Review 87; D Shelton (ed) Commitment and Compliance: The Role of Non-binding Norms in the International
Legal System (2000); M Oliver ‘The relevance of “soft law” as a source of international human rights’ (2002) Comparative &
International Law Journal of South Africa 289.
172
IFAD ‘Voluntary Guidelines on the responsible governance of tenure of land, fishes and forests: Implications for IFAD’ (2014)
1.
173
IFAD (n 172 above) 1.
31
essential for the context of Ghana where a greater proportion of lands are held under customary
tenure systems.
3.1.1 Voluntary Guidelines

The guidelines are the most advanced of all efforts by international organizations to provide
guidance on land tenure issues 174 and are the first guidelines negotiated by states at the
international level.175 They are consistent with and draw on existing international and regional
human rights instruments. 176 They seek to improve land tenure governance for all with
emphasise on the vulnerable and marginalized. The Guidelines a grounded on ten main
principles, including human dignity, non-discrimination, equity and justice, gender equality,
participation, transparency and accountability.177
The guidelines requires states to provide legal recognition for the various tenure rights that may
exist in land and other resources especially those held by indigenous people and other tenure
systems subject to customary law.178 States are also required to ensure that their laws, policies
and institutional framework for land and other resource tenure issues are coherent and
compliant with international human rights law.179 Vulnerable groups are to be afforded legal
support to enable them effectively participate in decisions that affect their land and other
resource tenures. 180
With regards to compulsory acquisition, states are required to recognize all tenure right holders
especially the marginalized and vulnerable and provide prompt and just compensation for the
deprivation of such tenure rights.181 In line with the guiding principles states are required to
ensure that the planning and process of acquisition are transparent and affected persons are
properly informed and allowed to effectively participate.182 Where expropriate land is not used
for the purpose for which it was acquired, the pre-acquisition holders should be given the
174
SG Abebe ‘The Need to Alleviate the Human Rights Implications of Large-scale Land Acquisitions in Sub-Saharan Africa’
(2012) 4(3) Goettingen Journal of International Law 873-890.
175
OHCHR/UN Women ‘Realizing women’s rights to land and other productive resources’ ,HR/PUB/13/04 (New York and
Geneva, 2013) 10.
176
Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National
Food Security, FAO 2012 (Voluntary Guidelines) vi.
177
Voluntary Guidelines para 3B.
178
Voluntary Guidelines, para 4.
179
Voluntary Guidelines, para 5.
180
Voluntary Guidelines, para 7.4 & 7.5.
181
Voluntary Guidelines, para 16.1.
182
32
opportunity to reacquire the land.183 Where evictions or relocations are required, it must be
done in a humane manner that respects the rights of the persons affected.184
The UN Working Group on issue of human rights and transnational corporations and other
business enterprises has recently called on government of government of Ghana to implement
the Voluntary Guidelines to ensure better protection of customary landholders.185 The
guidelines are require that the implementation of programmes and policies on land tenure
should be consistent with international human rights law.186 The mainstreaming of human
rights in the Voluntary Guidelines necessitates the adoption of a human based approach in land
tenure management.187 The next section provides a brief overview of human rights based
approach.
3.2 Human rights based approached (HRBA) to development

The HRBA is a conceptual framework normatively based on international human rights
standards with the aim of promoting and protecting human rights premised on the principle
that all development processes should be guided by human rights.188The HRBA thus
necessitates the integration of human rights in all laws, policies, processes and institutions so
that both the process and outcome of development activities are consistent with human rights
principles and standards.189 This promotes sustainability and empowers people – especially the
marginalized to in development processes. In a broad sense the HRBA rest on four main
principles namely:190
 Guided by human rights: A HRBA implies that all legislation, policies and practices are
guided by human rights principles and standards. For instance, whilst ordinary
approaches to compulsory land acquisition would involve compensation of only legal
183
184
185
Human Rights Council, Report of the Working Group on the issue of human rights and transnational corporations and other
business enterprises, 6 May 2014, A/HRC/26/25/Add.5 para 39.
186
187
ActionAid ‘A brief introduction to the Voluntary Guideline on the Responsible Governance of Tenure of Land, fisheries and
forests in the context of national food security’ (2012) 4.
188
OHCHR (n 33 above)15.
189
OHCHR (n 33 above) 15-16.
190
OHCHR (n 33 above) 15-15.
33
title holders, a HRBA would consider the impacts of the acquisition on the rights and
livelihoods of all affected persons including informal land holders, squatters and the
usage rights of non-owners.
 Equality and non-discrimination: the HRBA emphasizes on giving particular

consideration to groups that are vulnerable and marginalized as well as gender. This
will include taking measures to ensure that all affected persons are empowered to
appreciate and participate in decisions affecting them.
 Participation and empowerment: the HRBA considers participation as both objective

and as an essential tool to development. Creating genuine involvement of people in
development decisions that have impact on them should be the aim of participation.
Participation should therefore be ‘active, free and meaningful’- not mere consultation.
 Accountability, transparency and the rule of law: the HRBA sees the individual as a
right holder who is entitled to the protection of their rights by the state rather than a
subject of charity. The state as the duty bearer in return has an obligation to respect and
promote the rights concerned.
In terms of the right to property, this would entail adherence to the standards set by various
human rights instruments which were examined in the previous chapter as well as other human
rights principles espoused in other human rights instruments.
3.3 Brief overview of land tenure system of Ghana

Ghana like many African countries operates a pluralist land tenure system consisting of state
sanctioned land titles and lands held under customary law. Both systems are recognised by the
constitution.191 Public lands are held in trust by the President on behalf of the people of Ghana
whilst lands held under customary law are held by the relevant communities or families.
191
Constitution of Ghana (n 19 above), articles 36(8), 257 & 257.
34
As noted earlier in this study, approximately 80%of lands in Ghana are held under customary
systems.192 It is worthy to note that customary law in Ghana is relative to specific tribes,
ethnicities and communities and is generally unwritten. This study therefore relies on
generalizations reflecting customary land laws as recognized by statutory courts and
academics. That said, it is generally recognized that customary land tenure recognizes several
interests including the allodial title, usufruct/customary freehold, customary leaseholds and
other lesser interests.193
The allodial title is the highest interest that can be held in land under customary law, beyond
which there is no superior title.194 The allodial title entails corporate ownership by the
community as whole and not personal ownership of the head of the land owning community.
Depending on the applicable customary law, the allodial title is held by communities, clans or
families. The chief /head of the land owning group holds the allodial title in trust for the entire
group.195
The usufruct or customary freehold is the interest that members of the land owning group are
entitled to as of right. It is usually acquired by occupation and cultivation of any part of the
land not previously occupied by another member of the community or by allotment. It is
superior to all interests except the allodial title.196 The customary freehold is potentially
perpetual and can be held for as longs as the higher interest of the allodial title is
acknowledged.197 It can be freely transferred to other members of the land owning community
although transfer to non-community members must be consented to by the customary head and
elders of the land owning community.198 Once the customary freehold is created the land cannot
be transferred to another person or group without the prior consent of the customary
192
JM Ubink and JF Quan ‘How to combine tradition and modernity? Regulating customary land management in Ghana (2008)
25 Land Use Policy 198;
193
K Bentsi-Enchill Ghana Land Law (1964); NA Ollennu Ollennu’s Principles of Customary Land Law In Ghana (2d ed. 1985); G
Woodman Customary Land Law In The Ghanaian Courts (1996).
194
GA Sarpong Improving Tenure Security for the Rural Poor- Ghana Country Case Study- Towards the Improvement of Tenure
Security for the Poor in Ghana: Some Thoughts and Observations, FAO, Rome (2006) 2.
195
Constitution (n 19 above), article 36(8); JB Danquah Akan Laws and Customs and the Akim Abuakwa Constitution (1928) 200.
196
LK Agbosu et al ‘Customary and statutory land tenure and land policy in Ghana’ (2007) Institute of Statistical, Social &
Economic Research, University of Ghana, Legon, Technical Publication No. 70 12.
197
JB da Rocha & CHK Lodoh Land Law and Conveyancing in Ghana (1999) 27.
198
NA Ollennu Principles of Customary Land Law in Ghana (1985) 34; Centre For Democratic Development (CDD),
Organisational Study of Land Sector Agencies,(2002) 14..
35
freeholder.199 As a result of the legal effect of the customary freehold it has been said to
‘effectively supersedes the allodial title’- its creation makes the allodial title only a nominal
interest.200
Other tenancies such as customary leases and sharecropping arrangements are also recognized
under customary law.201 These are interests usually held by persons or groups who are not
natives of the land owning group/community. The extent to which these customary land rights
are protected under Ghanaian law are examined in the next section.
3.4 Legislative framework

Ghana has committed itself to protect the right to property through the ratification of various
international and regional instruments which provides for the protection of the right to
property. These include the Convention relating to the Status of Refugees which Ghana ratified
on 18 Mar 1963, 202 Convention relating to the status of Stateless Persons ratified, ICERD which
was ratified on 8 September 1966203 CEDAW ratified on 2 Jan 1986,204 Convention on Migrant
Workers and CRPD. At the regional level, Ghana ratified the ACHPR on 24 January 1989205 and
the Maputo Protocol was ratified on 13 June 2007.206 Article 37(5) of the Constitution of Ghana
obliges the state to be guided by international human rights instruments in the development
process. Presently, there are about 166 laws and subsidiary legislation which relating to land
administration in Ghana.207Of this lot, the most relevant to compulsory land acquisition are the
199
Ohimen v Adjei & Another (1957) 2 WALR 275; Mansu v. Abboye & Another [1982-83] GLR 1313.
200
GR Woodman Customary Land Law in the Ghanaian Courts (1996)87.
201
MN Knudsen & N Folds ‘Land distribution and acquisition practices in Ghana’s cocoa frontier:The impact of a state-regulated
marketing system’ (2011) 28 Land Use Policy 378 379.
202
United Nations Treaty Collection, Convention relating to the Status of Refugees 28 July 1951 available at
<https://treaties.un.org/pages/ViewDetailsII.aspx?&src=TREATY&mtdsg_no=V~2&chapter=5&Temp=mtdsg2&lang=en>.
203
United Nations Treaty Collection, International Convention on the Elimination of All Forms of Racial Discrimination 7 March
1966 available at <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en >
(accessed 19 October 2014).
204
United Nations Treaty Collection, Convention on the Elimination of All Forms of Discrimination, 18 December 1979 available
at <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en> (accessed 19
October2014).
205
Ratification Table, ‘African Charter on Human and Peoples’ Rights’ available at
<http://www.achpr.org/instruments/achpr/ratification/ > (accessed 19 October 2014).
206
Ratification Table, ‘Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’ available
at <http://www.achpr.org/instruments/women-protocol/ratification/> (accessed 19 October 2014)
207
BA Quaye ‘Towards an Appropriate Framework for the Effective Utilization/Management of Geoinformation: A Case Study of
Ghana’ (2006) A paper presented at XXIII FIG Congress Munich, Germany (October 8-13, 2006) 3.
36
Constitution, State Lands Act, 1962 (Act 125), Administration of Lands Act, 1962 (Act 123) and
the Minerals and Mining Act, 2006 (Act 703) which are discussed below.
3.4.1The Constitution of Ghana

Ghana adopted a new constitution in 1992 after years of successive military coup d’états with
the aim of establishing a framework of government that commits to amongst others the
protection and preservation of fundamental human rights and freedoms.208 To this end,
‘Chapter five’ of the Constitution provides for the fundamental human rights and freedoms that
must be respected and upheld by all organs of state, individuals and corporations alike.209
The Constitution explicitly provides for the right of everyone to own property ‘alone or in
association with others’.210 However like many Constitutions, the right to property may be
interfered with in accordance with laws that are ‘necessary in a free and democratic society’ for
the public safety, economic wellbeing of the state and the protection of the right of others.
In terms of compulsory acquisition of property, the article 20(1) of Constitution requires the
state to satisfy that:
(a) 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; and
(b) 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.211
Article 20(1)(b) clearly recognizes the human right principle of proportionality as it requires the
acquiring entity to justify the necessity of the acquisition as against the hardship that would be
caused to the property owner as a result of the deprivation of the right.
208
Constitution of Ghana (n 19 above),‘Preamble’.
209
Constitution of Ghana (n 19 above),, article 12.
210
Constitution of Ghana (n 19 above), article 18(1).
211
37
Article 20(2) further requires the ‘prompt payment of fair and adequate compensation’ as well
as access to the High Court to challenge the acquisition or the amount of compensation
payable.212 Where compulsory acquisition leads to the displacement of people, the state has an
obligation to resettle the affected persons on ‘suitable alternative land with due regard to their
economic wellbeing and social and cultural values’.213
Other safeguards include the requirement that property compulsorily acquired should only be
used for the purpose for which it was acquired.214 Further, where the property compulsorily
acquired is not used for the required purpose, the state must give the owner from which the
property was acquired the option to reacquire the property subject to the return of the
compensation paid or some other amount as agreed.215
These are welcome steps provides a largely human rights compliant approach to the issue of
compulsory land acquisition and the right to property. However a critical evaluation of the
Constitutional provisions brings to fore some inherent weaknesses. First it is noteworthy that
the public purpose clause is overly broad encompassing any activity that can be categorised as
having a ‘public benefit’. Such a broad provision can be used to justify almost all types of
acquisitions which contribute to public welfare even where they confer a direct benefit such as
profit on a private individual.216 This wide scope of the public benefit clause may be subject to
abuse by the state. International best practice requires that ‘public interest’ should be clearly
defined in order to allow for judicial review.217 Section 2 of Kenya’s Land Act (2012) provide a
good example of a public purpose clause by setting out an inventory of the purposes for which
government may compulsorily acquire land.218 In its current form it is virtually impossible to
challenge compulsory acquisition given the broad scope of activities that can be covered.
Another significant challenge with the constitutional protection against arbitrary deprivation of
property through compulsory land acquisition is that it does not does not specifically address
human rights standards such as participation and emerging concepts such as the free prior and
212
Constitution of Ghana ((n 19 above), article 20(2).
213
214
215
216
NA Kotey ‘Compulsory acquisition of land in Ghana: Does the 1992 constitution open new Vistas?’ In C Toulmin et al (Eds)
The dynamics of resource tenure in West Africa, London (2002) 121.
217
Voluntary Guidelines para 16.1; FAO ‘Compulsory land acquisition and compensation’ (2009) para 2.12-2.15.
218
Government of Kenya, Land Act (2012), No 6 of 2012, sec 2.
38
informed consent of the affected persons or communities. Whilst this may be inferred from
article 37(2)(a) of the Constitution which requires the state to ensure that people effectively
participate in the development process, an express inclusion of the right to participation in
article 20 would have further affirmed the right of affected persons to participate in the decision
making when their rights are interfered with.
Similarly, whilst the Constitution provides for the prompt payment of compensation, this has
not always translated into practice. Research shows that compensation payments have taken
years sometimes, with government occupying large tracts of land without paying
compensation.219 International best practice requires the payment of all or at least part of the
compensation prior to taking possession.220 To better secure the property rights of persons
affected by compulsory land acquisition the constitution should require the payment of
compensation paid prior to taken possession of the land or at least within at least within a
specified period, after which the assessed compensation attracts interest. This ensures that the
value of the compensation does not depreciate when payment is delayed. Ghana can learn from
the Constitution of Uganda (1996) which provides that government must pay compensation
prior to taking possession of property compulsorily acquired.221
There is therefore the need to revise the constitutional provisions to make them more compliant
with international human rights standards and international best practice.
3.4.2 State Lands Act, 1962 (Act 125)

The State Lands Act provides a legislative framework for the ‘acquisition of land in the national
interest or other purposes connected’.222 It would have been expected that the Act would
contain more elaborate provisions to operationalize the constitutional requirements for
compulsory land acquisition. However, the Act is rather brief in terms of content and length; it
is approximately five pages. It empowers the President to compulsorily acquire land through
the publication of an executive instrument where it ‘appears’ to the President that land is
219
Larbi et al (n 28 above) 124. The study estimates that compensation has not being paid in 79.6% of all post independence
land acquisitions.
220
FAO (n 217 above).
221
The Constitution of Uganda (1996) article 26.
222
Government of Ghana, State Lands Act, 1962 (Act 125), long title.
39
required in the public interest.223 The vesting of the power to compulsorily acquire land in the
present is itself problematic as enables political authority to unilaterally acquire land without
any oversight. International best practice requires that the body conducting compulsory land
acquisition should be an independent entity to ensure that impartiality in the process.224
The publication of the executive instrument automatically vests the land in question in the
President and all interests of the owner are extinguished.225 Notice of the acquisition is given to
the land owners/occupiers after the publication of the acquisition instrument.226 Affected
persons may make claims for compensation within six months of being served with the notice
of acquisition with the following details;
a) particulars of [the] claim or interest in the land;

(b) the manner in which [the] claim or interest has been affected by the executive
instrument issued under [the] Act;
(c) the extent of any damage done; and
(d) the amount of compensation claimed and the basis for the calculation of the
compensation.227
Persons dissatisfied with compensation assessed by the Lands Commission may challenge it
before the High Court,228 with a further right to appeal to the Court of Appeal if dissatisfied
with decision of the High Court.229 Displaced persons are required to be resettled by the Lands
Commission in line with the requirement of the constitution.230
The Act focuses on the payment of compensation to the neglect other human rights standards.
First, the procedure for acquisition does not follow the HRBA. The HRBA emphasises on
human rights standards such as participation and transparency which are not adhered to under
the Act. Land acquisition is essentially treated as an executive act which is complete upon the
223
State Lands Act (n 222 above) section 1.
224
International Federation of Surveyors (FIG) ‘Compulsory land acquisition and compensation: Recommendation for good
practice’ (2010), General principle 4.1.
225
State Lands Act (n 222 above) section 2(3).
226
State Lands Act (n 222 above) Section 2(1).
227
228
State Lands Act (n 222 above) Section 4.
229
State Lands Act (n 222 above) Section 4A.
230
40
publication an executive instrument. The determination of what is in the ‘public interest’ is at
the discretion of the President who is not required to consult the affected persons or
communities. Regulations231 made under the Act mandates the formation of a Site Advisory
Committee (SAC) which is responsible for identifying suitable land and making
recommendations to the President. However, the regulation does not require the committee to
consult affected persons prior to the publication of the acquisition instrument. Only
government institutions are represented on the SAC. 232 This top-down approached falls short
of the HRBA which emphasise that that effected individuals should be allowed to participate in
the decision making and be provided with assistance to enable them make informed decisions.
Transparency and participation are core principles emphasized by the African Commission
ESCR Guidelines and jurisprudence as well as the Voluntary Guidelines.233 The non
participation of affected persons means that in some instances affected persons only got to
know about the acquisition when government surveyors when to their premises attempted to
survey the land.234 The very complex nature of customary landholding makes it even more
imperative that affective communities effectively participate from the planning stages so that
the concerns of all affected persons can be heard and catered for.
Similarly, contrary to the constitutional requirement that the state must satisfy that the
acquisition is justifiable in context to the hardship that would be cause the land owner or
occupier,235 the Act makes no reference to providing justification for the acquisition in the
executive instrument. The Act therefore does not satisfy the requirement of proportionality as
stressed by the African Commission.236 Without information on the proposed use of the land
and justification for such acquisition it is impossible for the land owners to challenge the
acquisition. It is also notable that unlike the Constitution, the Ste Lands Act does not provide
the right to challenge the acquisition itself. The Act only provides for the right to challenge
compensation assessed.237 Without the right to challenge the acquisition itself, transparency in
the acquisition cannot be ensured.
231
State Lands Regulations, 1962 (LI 230).
232
State Lands Regulations, (n 231 above), Regulation 1.
233
234
Kotey (n 216 above) 126.
235
Constitution (n 19 above) article 20(1).
236
African Commission ESCR Guidelines, para 51-55.
237
State Lands Act (n 223 above) section 3.
41
In addition to the procedural weaknesses, compensation payments also face many challenges.
Whilst the Act requires affected persons to submit claims for compensation, in practice only the
holder of the allodial title, registered freehold owners and documented leaseholds are
compensated.238 Holders of customary rights such as the customary freehold and other informal
occupiers who do not have formal documentation are not eligible for compensation.239 To put in
the situation in context, a holder of a registered leasehold interest would receive compensation
for the value of the unexpired term of the lease. A customary freeholder who holds the land
perpetually would not receive compensation for the value of the land. Compensation for
customary land is paid to the holder of the allodial title (chief or head of the community) who
even though a trustee of the land, does not owe any obligation to account to the subjects under
customary law.240 There are several instances where customary authorities have in connivance
with public officials received and used compensation for their personal benefit to the detriment
of the communities they represent.241 International best practice242 requires that all interests in
the affected land be compensated including those of customary land users and informal
occupants.
Further, gender differentiation with regards to land access reported in Ghana and other
intersectional issues make women within this group even more vulnerable.243 The Act however,
does not make any provision for gender issues to be particularly catered for during compulsory
land acquisition.
In addition, compulsory land acquisition processes can be very challenging for the poor and
vulnerable. For instance making claims and valuations would require an understanding of the
technical issues involved so that the property is not undervalued. Many poor rural folk whose
lands are usually the subject of compulsory acquisition lack both the skill and resources to
employ the services of professionals so as the enable them participate meaningfully to
safeguard their rights during the compulsory acquisition process. The HRBA requires the
empowerment of the poor and vulnerable to enable them effectively participate in the
238
Larbi (n 21 above) 12.
239
Larbi (n 21 above) 12.
240
Gyamfi & another v. Owusu & others [1981] GLR 612 628.
241
Human Rights Council, Report of the Working Group on the issue of human rights and transnational corporations and other
business enterprises, 6 May 2014, A/HRC/26/25/Add.5 para 40.
242
Voluntary Guidelines, paras 5.3 & 16.1; J Walace ‘Land acquisition in developing economies’ (2010) 10-13.
243
M Kevane Women and Development in Africa: How Gender Works(2004) Boulder: Lynne Rienner Publishers ; W Anseeuw et
al ‘Land Rush and Land Rights: Finding of the Global Commercial Pressures on Land Research Project’ (2012) 44.
42
process.244 This could be done by government providing independent lawyers and other
professionals to the affected individuals/ communities or including the cost of procuring the
services of such professionals as part of the compensation. The second approach is currently
what pertains under the State Property and Contracts Act (1960) which allows claimants to
include the cost of incurred in the procurement of valuation services as part of the
Compensation.245
Another issue relating to compensation payment that is pertinent is the manner is which
compensation is assessed and the time frame for payment. The Act relies on the Lands
Commission which is the government agency responsible for land acquisition to determine the
compensation instead of an uninterested independent entity. This leads to an inherent conflict
of interest essentially allowing the state to determine the compensation it desires to pay for the
property compulsorily acquired. The African Commission has stressed that compensation must
be assessed by an ‘independent tribunal’.246 Whilst compensation assessed by the Lands
Commission can be challenged in court, as indicated in the preceding paragraph, many of the
affected persons are not resource sufficient to understand the process or procure the services of
relevant professionals who can challenge such assessment. Some countries identify independent
valuation commissions or agencies to make the process more transparent and impartial which is
accepted as international best practice.
Further to this the, Act does not establish any time frame within which government must pay
compensation even though the Constitution requires the ‘prompt’ payment of compensation.247
The Act however allows the government to take possession of the land prior to the payment of
compensation. This has resulted in many instances where government have occupied
customary lands for several years without paying compensation.248 Once government takes
possession there is no incentive to make prompt payment of compensation.249 As discussed
above, international best practice requires that at least part of the compensation be paid prior to
taking possession. At a minimum the law must provide a clear time limit for the payment of
compensation which entitles affected person to claim interest from the day of dispossession.
244
FAO (n 217 above) 18.
245
Government of Ghana, State Property and Contracts Act, 1960 (CA 6), sec 11.
246
IHRDA v Angola. (n 150 above) para 73.
247
Constitution of Ghana (n 19 above) article 20(1).
248
Larbi et al (n 28 above) 124.
249
43
Other notable deficiencies in the Act includes the omission of the obligation to return unused
compulsorily acquired land to the pre-acquisition owners where it is not longer needed for the
purpose for which it was acquired as required by the Constitution250 and international best
practice.251
Ghana can learn from the experience of India which recently passed the Right to Fair
Compensation and Transparency in Land Acquisition Act (India Acquisition Act) ‘to ensure a
humane, participative, informed and transparent process for land acquisition.’252 The India
Acquisition Act provides extensive safeguards to be adhered to during compulsory land
acquisition. These include conducting a comprehensive pre-acquisition social impact
assessment, setting up an independent expect group to appraise the social impact assessment
and advice on whether the project satisfies the public purpose requirement, receiving objections
from the public on the acquisition, conducting public hearings and requiring the consent of 80%
of the affected individuals/families where the acquisition is in favour of a private company
performing a public purposes.253
In summary the many gaps in this law shows its inadequacy to effectively comply with human
rights standards. By not incorporating a HRBA the Act does not effectively protect the right to
property during compulsory land acquisition processes. A full overhaul of the Act is needed to
bring it into harmony with the Constitution and international human rights standards.
3.4.3 Administration of Lands Act, 1962 (Act 123)

The Act is a consolidation of laws relating to the management of customary lands.254 Apart from
making provisions for the management of customary lands, the Act grants the president the
power to vest any customary land in himself as trustee where it appears to him that it is in the
public interest to do so.255 In theory, the vesting of customary lands in the President transfers
the legal title to the President whilst the beneficial interest is held by the community. However,
in practice both the legal interest and the legal title are transferred to the President who
250
Constitution of Ghana (n 19 above) article 20(6)
251
252
Government of India, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act
(2013) ‘preamble’.
253
India Acquisition Act (n 252 above) secs 1 -15.
254
Administration of Lands Act, 1962 (Act 123) long title.
255
Administration of Lands Act, 1962 (n 254 above) section 7.
44
subsequently delegates the management functions to state institutions such as the Lands
Commission.256 Customary landowners are completely divested of their land management
rights in such instances. Consequently the acquisition of land under this Act is indeed
compulsory acquisition.257
This Act has the same defects as the State Lands Act (discussed above) in terms of procedural
requirements such as transparency, consultation and participation of the affected communities.
More significantly, despite its expropriatory nature, the Act is silent on the payment of
compensation for the lands acquired in this manner and compensation is not paid in practice.
The absence of the requirement of compensation in this Act has led to a situation where
government has used this Act to compulsory acquire land in favour of mining companies who
avoided to pay compensation because the Act makes no provision for the payment of
compensation.258 The right to be compensated for deprivation of the right to property cannot be
overemphasized.
Similarly, contrary to the constitutional provision that affected communities should be resettled
at the cost of the state where compulsory acquisition necessitates the displacement of people,
this Act does not make provision for resettlement of displaced persons.
Consequently the Act requires revision to bring it in conformity with the constitutional
requirements of compensation for all land acquisitions and international best practice in terms
of procedural safeguards that should be followed throughout the process of compulsory land
acquisition.
3.4.4 Minerals and Mining Act, 2006 (Act 703)

The Minerals and Mining Act provides the legal framework for mining in Ghana. In accordance
with the Constitution, the Act provides that all minerals in Ghana are vested in the President in
256
Kassanga & Kotey (n 36 above) 20.
257
Gyamfi and another v Owusu and others [1981] GLR 612 628.
258
R Mares ‘Corporate Responsibility and Compliance with the Law: A Case Study of Land, Dispossession, and Aftermath at
Newmont’s Ahafo Project in Ghana’ (2012) 117(2) Business and Society Review233-280.
45
trust for the people of Ghana.259 Section 2 of this Act also allows the President to compulsorily
acquire land or authorise its occupation for the development of mineral resources. Like the
other Acts already discussed above, there is no requirement for consultation or participation of
the affected communities prior to the grant of mineral rights which would eventually occasion
the compulsory acquisition or occupation of their lands contrary to established international
standards.
Under this Act, the holder of the mineral rights is required to compensate the ‘owner or lawful
occupier’ of any land affected by the mineral operations.260 The wording of this provision
provides a basis for excluding from compensation persons who may informally occupier lands
affected by mining operations even if their livelihood depends on the occupation and use of the
land. International best practice requires that all persons who are in occupation of the affected
lands including customary and informal land users should be entitled to compensation or
resettlement.261
The Act also requires land owners to reach an agreement on compensation with mining
companies.262 In theory this is a laudable provision as it gives communities the opportunity to
negotiate for the deprivation of their rights to the affected lands. However, in practice this
provision ignores the power imbalance between the usually well resourced mining companies
as against the poor mining communities. Without adequate safeguards such as detailed
guidelines for determining compensations and technical support, land owners are essentially
left at the mercy of the mining companies and state agents who often coerce them into accepting
low compensation.263 In this regard, it is commendable that new regulations have been adopted
to provide guidelines for the assessment of compensation and resettlement.264 A further human
rights based safeguard would include assisting affected persons and communities to procure
the services of relevant professionals such as lawyers and valuers to enable them effectively
participate in the negotiation process.265 The cost of procuring the services of the professionals
would be included in the compensation claim and paid by the acquiring entity. As discussed
259
Minerals and Mining Act, (n 33 above) section 1.
260
Minerals and Mining Act (n 33 above) sec 73(1).
261
262
Minerals and Mining Act (n 33 above), sec 73(3).
263
Sarpong (n 195 above) 16.
264
Government of Ghana, Minerals & Mining (Compensation & Resettlement), Regulations, LI 2175 (2012).
265
46
earlier in this approach is not unknown in the land management system of Ghana. This is the
approach adopted under the State Property and Contracts Act which allows affected property
owners to include the cost incurred in procuring valuation services in the claim for
compensation.
It is significant to also highlight that this Act does not clearly indicate a time limit for the
payment of compensation. As discussed compensation, especially where the land is acquired
for the benefit of private entities should be paid before the acquiring entity takes possession of
the land to enable affected persons quickly re-establish their livelihoods.
Apart from this, the land per se and the interest held in the land is not subject to compensation.
What the law compensates is the deprivation of use of land and damage cause to chattel on the
land.266 It is noteworthy that deprivation of use can potentially be in perpetuity for example in
cases of surface mining which renders the land of no beneficial use to the owners after the
mining activities. There is therefore the need for further clarity to be provided on the scope of
compensation where there is potential permanent deprivation of use and where the initial
mining license is extended beyond the number of years of deprivation of use paid by the
mining company.
The inefficiencies in the compulsory acquisition system under this act then put women more at
a disadvantage mainly because in ‘rural areas and among the urban poor, women tend to be
almost entirely dependent on the land for their livelihood and have the fewest options when
deprived of their lands.’267 A HRBA approach would therefore required that special attention be
paid to vulnerable groups such as women during this processes. Like the other legislations
already discussed this Act is silent on such gender considerations.
In summary, this Act in many respects is not in conformity with international human rights
standards and best practices.
266
Minerals and Mining Act, (n 33 above) section 74(1).
267
Sarpong (n 195 above) 16.
47
3.5 Policy framework
The main policy that regulates land management in Ghana is National Land Policy which is
examined below.
3.5.1 National Land Policy (1999)
The National Land Policy is the first comprehensive land policy that was formulated to address
key issues in the land management sector which needed reform including compulsory land
acquisition by government.268 The policy acknowledges that government acquisition of large
tracts of land without the prompt payment of compensation has left many communities
landless denying them of their source of livelihood.269 It also identifies that there is general lack
of consultation with land owners concerning the acquisition and utilization of land.270 It
therefore emphasizes as one of its guiding principles the need for ‘community participation in
land management and development at all levels’ as an essential tool for sustainable
development.271 The policy also gives due consideration to the land rights of communities and
individuals ensuring the payment of compensation within reasonable time fair and adequate
compensation for land compulsorily acquired.272 The policy further provides that compensation
paid through compulsory land acquisition should be determined by negotiation with the
affected persons.273 Additionally, it recognizes all forms of customary landholding as ‘legitimate
sources of land titles’ which the state must respect274 and requires decision making with regards
to disposal of land adhere to principles of accountability.275 To ensure security of tenure, the
policy recognizes that there is the need the registration of all customary rights that individuals
or groups may hold in land. 276
However the policy is silent on the participation of women and the impact compulsory land
acquisition has on vulnerable groups including women, children, persons with disability and
the aged. There is no mechanism provided by the policy to ensure that such vulnerable groups
268
National Land Policy (1999), ‘forward’.
269
National Land Policy (n 268 above) pare 2.2(c).
270
National Land Policy (n 268 above) para 2.2(g).
271
National Land Policy (n 268 above) pare 3.1.
272
National Land Policy (n 268 above) para 3.3.
273
National Land Policy (n 268 above) para 4.2(e).
274
National Land Policy (n 268 above) para 4.3(a).
275
National Land Policy (n 268 above) para 4.3(b).
276
National Land Policy (n 268 above) pare 5.3(a) &(b).
48
are catered for during compulsory land acquisition processes. Therefore the policy is in need of
revision to make it more comprehensive an HRBA compliant by explicitly making provision for
vulnerable groups.
3.6 Conclusion
This chapter illustrated the Constitution of Ghana specifically recognizes the right to property
as a justiciable right. Ghana has also adopted several laws and policies on compulsory land
acquisition. These laws are however not comprehensively drafted to cater for human rights
concerns during compulsory land acquisition. Clearly there are serious loopholes in the
compulsory acquisition laws and policies. Whilst the Constitution provides a good ground for
the protection of the right to property and quite elaborate rules to be followed during
compulsory acquisition, these inroads have not led to a revision of the compulsory acquisition
laws. The compulsory acquisition laws are largely incoherent and inconsistent with the
requirements of the Constitution and international human rights law. There is therefore the
need to incorporate human rights principles and standards in the laws and policies relating to
land management and compulsory land acquisition in order for them to effectively contribute to
the realization of the right to property.
49
CHAPTER FOUR
CONCLUSION AND RECOMMENDATIONS
4.1 Summary of findings and conclusion
This study set out to establish whether the legislative and policy framework for compulsory
land acquisition in Ghana are in conformity with international and regional human rights
norms and standards for the protection of the right to property. In order to accomplish this task,
it was imperative to first ascertain whether the right to property was guaranteed under
international human rights law and if so the limitations that states may reasonably place on the
enjoyment of the right. The study confirmed that the right to property has emerged at the
international level as a result of several factors; it is specifically protected in the Universal
Declaration (which has become a universal standard for human rights), through several
subsequent groups based treaties and many UNGA resolutions. In addition, though not
specifically protected under the ICCPR and ICESCR, subsequent state practice through
recognition of the right to property in almost all national constitutions and the acceptance of the
right to property by more than two-third of the members of the UN through binding regional
human rights instruments give credence to the emergence of the right to property as customary
international law.
The study however acknowledges that the non inclusion of the right to property in neither the
ICCPR nor ICESCR has somewhat weakened the development of the right to property under
international human rights law. Regional human rights instruments fill this vacuum to some
greater extent. Specifically, the African Charter and subsequence jurisprudence of the African
Commission has provided some clarity on the nature and content of the right and the
conditions that must be satisfied by states for the right to be limited, though much of the clarity
has related to indigenous peoples’ rights. Other soft law instruments developed by various
international organisations provide further clarity on procedural safeguards that should be
adhered to during compulsory land acquisition. Attention was then turned to evaluate the legal
and policy framework for the right to property and compulsory land acquisition in Ghana to
ascertain their conformity with the human right based approach.
50
4.1.1 Legislative framework
The study established that Ghana has ratified several international and regional human rights
instruments which oblige the realisation of the right to property. Ghana has followed suit and
provided quite a progressive regime for the recognition of the right to property in its
Constitution as a justiciable human right. The Constitution also defines with some particularity
the circumstances under which the right may be limited providing elaborate safeguards for
compulsory land acquisition including the payment prompt and adequate compensation. The
Constitution however does not explicitly make provision for consultation and participation of
affected persons/groups during compulsory land acquisition.
On the other hand the laws governing compulsory land acquisition (most of which predates the
Constitution) have not been revised to bring them into conformity with the constitution and
international human rights law. The implementation of compulsory land acquisition is therefore
generally not in conformity with the Constitution nor international human rights law.
As a result of incoherent legal framework which to a greater extent contradicts the

constitutional provisions on the right to property and compulsory land acquisition several
human rights violations continue to occur including non participation of affected persons
during compulsory acquisition, acquisition of customary lands without compensation under the
guise of government trusteeship, non-recognition of the customary freehold as eligible for
compensation, divesture of compulsorily acquired lands into private entities contrary to the
constitutional obligation to return property to the original owners amongst others. These
violations often go unpunished as they are perpetrated by government itself or with the
connivance of agencies and or public officials. These violations have adverse socio-economic
consequence on many vulnerable land owning individuals and communities who depend on
land for their livelihood and sustenance.
4.1.2 Policy framework
Ghana’s policy framework generally adheres to most of the human rights standards such as
participation and transparency prompt payment of compensation. More significantly, the policy
framework recognizes the effect of compulsory land acquisition on communities and therefore
provides for the recognition of all interests in land including customary land rights as rights
51
that must be compensated during compulsory acquisition. The policy therefore provides are
array of hope for individuals who hold land under customary systems that are usually most
disadvantaged during compulsory acquisition as their rights were not previous recognized. The
policy framework is however silent on vulnerable groups. A progressive policy framework is
not sufficient if not back by appropriate legislation.
In conclusion, land continues to be an essential tool for development which necessitates

government’s use of the powers of compulsory land acquisition. Development should however
be inclusive and aim at improving the lives of people and not otherwise. The present state of the
compulsory land acquisition laws are not human rights compliant and require a complete
overhaul in order to provide better protection for property owners. It is necessary to adopt a
new approach to compulsory land acquisition which considers the effects of compulsory land
acquisition on property owners and threats them as right holders whose rights must be
protected by the state. The Land Administration Currently being implemented by the
government should be used to provide a new comprehensive human rights compliant
compulsory land acquisition legislation.
4.2 Recommendations
In light of the forgoing, the following recommendations are proposed for the effective
realization of the right to property;
4.2.1 International community
Secure property rights in land are essential for the enjoyment of many internationally
recognized human rights such as the right to housing, water and food. In its present form,
international human rights law does not offer sufficient protection for the right to property. The
international community needs to critically re-examine and elaborate on the status of the right
to property under international human rights law. Significantly, the right to property should be
included in the ICESCR through a protocol to complete the original intentions of the drafter of
the UDHR to provide a robust protection of the human right to property against arbitrary
expropriation. This will enable the utilization of the monitoring mechanisms under the ICESCR
to strengthen legal remedies and ensure that states respect, protect and fulfill the right to
property.
52
4.2.2 African Commission
The African Commission deserves commendation for providing some clarity on the normative
content of the right to property. It is however noted that the Commission’s clarification on the
need for free prior informed consent as a requirement for dispossessing people of their lands
has focused on indigenous people. It cannot be ignored that the majority of African
communities who are affected by the use of state’s power of eminent domain do not qualify as
‘indigenous peoples.’ Nonetheless they have the same system of customary land governance
and face almost the same challenges as indigenous peoples in Africa. There is therefore the need
to refocus attention on property rights of all people subject to customary land tenure generally,
who are most vulnerable during compulsory land acquisition.
4.2.3 Government of Ghana
4.2.3.1 Strengthening regulatory framework
 The government of Ghana should strengthen the constitutional protection of the right to
property by incorporating international human rights principles such as transparency
and participation at all stages of the compulsory land acquisition process. Consultation
should be done prior to taking any decision on whether on or not to proceed with
compulsory land acquisition. This will ensure that affected communities have the
opportunity to take partake in making decisions that affect them as required by
international human rights standards.
 The revision of the Constitution should also include a requirement that the state shall
only take possession of land compulsorily acquired after the payment of agreed
compensation. This will ensure that affected individuals or communities are not unduly
disadvantaged through delays in the payment of compensation.
 The Government of Ghana should harmonize all legislation and policies that deal with
compulsory land acquisition to bring them in conformity with the Constitution and
international human rights standards. This should also focus on the need to provide
53
special attention to vulnerable groups during the process of compulsory land
acquisition.
 Pre-acquisition human rights impact assessment should be incorporated in the
compulsorily land acquisitions process, to ensure that all the human rights issues that
may arise out of the process are taken into account and prevented, suppressed or
remediated promptly.
 The Government of Ghana should provide legal and other technical support to people
affected by compulsory land acquisition to enable them secure better deals through
better compensation.
 Compulsory acquisition should be used as a last resort. Government must give
preference to negotiating with property owners in good faith with the aim of agreeing
on a fair market value for the purchase of the property without the need to resort to
compulsion. The new legislative framework should therefore provide for negotiation as
a first step. The property owners or occupiers should be empowered to understand their
rights the negotiation process and their rights during the process. The reasonable cost of
procuring the services of lawyers and valuers should also be covered as part of the
compensation claim to ensure that property owners or occupiers are able to secure
independent advice to secure their rights
4.2.3.2 Capacity building

The effective implementation legislation will depend on the capacity of the implementing
agencies and officers. Government must introduce human rights sensitization across all
agencies that are involved in compulsory land acquisition to ensure that they understand the
human rights implications of the process. This will ensure that implementing agencies
understand that compulsory land acquisition involves the curtailing of the right of the affected
individuals and therefore should be conducted in a humane manner taking into account all the
human rights issues and consulting the affected people appropriately.
4.2.3.3 Legally recognizing customary land rights

The government of Ghana must remedy the weak legal status of customary land rights. At
present, only the National Land Policy recognizes customary land rights of individuals and
54
communities lesser than the allodial title. Individual and group customary ownership and use
rights over land should be recognized and accorded the same legal status as statutorily
registered land titles even where these customary interest are not documented. In this regard
there must be explicit prioritization of the interest of vulnerable groups such as women and the
rural poor.
4.3 Investors
Recognizing the right to property especially land rights has implications not only for states but
also for investors. The UN Guiding Principles on Business and Human Rights clarifies that
businesses have an obligation to respect human rights. These Principles must guide private
sector engagement with communities, where they are beneficiaries of government’s use of the
power of eminent domain.
4.5 Civil Society

Civil society should play and active role in ensuring that government adheres to international
human rights standards during the process of compulsory land acquisition. This can be
achieved through providing legal support to people affected by compulsory acquisition to
enable them protect their rights and undertaking public interest litigation to challenge
acquisition that does not meet the public purpose standard. It may also include lobbying
government to fulfil its international obligations and submitting alternative reports to the
African Commission on government’s adherence to the required international human rights
standards.
Word Count: 19868
55
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The right to property and compulsory land acquisition in Ghana: an analysis of

Thesis · October 2014

Michael Gyan Nyarko

Governance and human rights in Africa View project

Global Campus of Human Rights View project

The user has requested enhancement of the downloaded file.

A DISSERTATION SUBMITTED TO THE CENTRE FOR HUMAN

PREPARED UNDER THE SUPERVISION OF

SCHOOL OF LAW, MAKERERE UNIVERSITY, UGANDA

I, student number 04631537, do hereby declare:

DATE: 30 October 2014

This dissertation is also dedicated to my uncle Frempong, for believing in me.

My sincere gratitude to Dr Rose Nakayi, for supervising my work and responding to my

ACHR American Convention on Human Rights

CHAPTER ONE: INTRODUCTION 1

CHAPTER TWO: INTERNATIONAL LEGAL FRAMEWORK FOR THE

CHAPTER FOUR: CONCLUSION AND RECOMMENDATIONS 50

1.1 Background to the study

In terms of institutional arrangements the Lands Commission which is responsible for

1.4 Research questions

- How do Ghana’s laws, policy and institutional practice on compulsory land

1.6 Preliminary literature review

1.7 Research methodology

1.8 Limitations of study

1.9 Outline of chapters

Chapter two: International and regional protection of the right to property

Chapter three: property rights and compulsory land acquisition in Ghana

INTERNATIONAL LEGAL FRAMEWORK FOR THE PROTECTION OF

2.1 international level

2.1.2 The Covenants

2.1.3 Group specific treaties

Similarly, the International Convention on the Elimination of All Forms of Racial

2.1.4 The right to property as customary international law

Additionally, the absence of opposition to UNGA resolutions calling on member states to

2.2 Regional level

THE RIGHT TO PROPERTY AND COMPULSORY LAND

3.1 Compulsory land acquisition: Emerging international best practice

3.1.1 Voluntary Guidelines

3.2 Human rights based approached (HRBA) to development

 Equality and non-discrimination: the HRBA emphasizes on giving particular

 Participation and empowerment: the HRBA considers participation as both objective

3.3 Brief overview of land tenure system of Ghana

3.4 Legislative framework

3.4.1The Constitution of Ghana

3.4.2 State Lands Act, 1962 (Act 125)

a) particulars of [the] claim or interest in the land;

3.4.3 Administration of Lands Act, 1962 (Act 123)

3.4.4 Minerals and Mining Act, 2006 (Act 703)

3.5.1 National Land Policy (1999)

CONCLUSION AND RECOMMENDATIONS

4.1 Summary of findings and conclusion

As a result of incoherent legal framework which to a greater extent contradicts the

4.1.2 Policy framework

In conclusion, land continues to be an essential tool for development which necessitates

4.2.1 International community

4.2.3 Government of Ghana

4.2.3.1 Strengthening regulatory framework

4.2.3.2 Capacity building

4.2.3.3 Legally recognizing customary land rights

4.5 Civil Society

Word Count: 19868

Brownlie, I (2008) Principles of Public International Law Oxford University Press.