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

Our Ref: OG/2023/017

10 July 2023

The Minister
Ministry of Lands and Natural Resources
Accra

Executive Secretary
Lands Commission
Accra

Dear Sirs:

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

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

PRESIDENT AS TRUSTEE, LANDS COMMISSION AS MANAGER
Under the Constitution, all compulsorily acquired lands are ‘public lands.’ According to the Supreme Court, this applies whether the land is vested in the State ‘or assigned to a particular public service institution.’ While public lands are vested in President in trust for the people, the power to manage such lands is vested exclusively in the Lands Commission. We contend that the Lands Commission’s power to manage does not include the unilateral power to cede ownership of public lands to any other person.

According to the Constitution, in the performance of its functions, the Lands Commission is independent of ‘any person or authority,’ subject only to limitations provided in either the Constitution itself or other constitutionally-compliant laws. The Constitution then binds the Lands Commission to comply with only Presidentially-Approved Written General Directions (‘PAWGDs’) issued by the Lands and Natural Resources Minister. Thus, the Minister may only make approved directions of a general nature, but cannot be involved in or instruct on any acts that amount to direct and specific management of public lands. Those would be unconstitutional and void.

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

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

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

We are convinced that the Constitution provided for PAWGDs because public lands must be managed in the supreme interest of the people of Ghana, and not any section of us. If the public ownership of those lands must be relinquished, then the people of Ghana (as the owners and beneficiaries of those lands) must have the opportunity to see and debate the draft PAWGDs and express our views on them.

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

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

Two of those land tracts (covering 1582.83 acres) have been leased back to the original owners at either peppercorn or no rent. The Lands Commission explains that economic rent would be applicable upon transfer of interest to third parties. We are aware that all of those lands have indeed been assigned or sublet to third parties. Yet the Lands Commission, in clear breach of its constitutional duties, is unable or unwilling to disclose who the current assignees and sublessees are, and how much economic rent has been recovered, if any.

The remaining four land tracts (covering 779.037 acres) have been released to the original owners, absolutely and for free. However, instead of issuing PAWGDs, different Lands Ministers simply assumed unconstitutional land management powers and issued Executive Instruments to redraw the boundaries, and thereby effectively released the lands. These are unconstitutional and void.

Further, the Lands Commission’s 13 March 2023 letter does not appear to have considered other public lands that had been assigned to other public institutions, and which may have also been released. According to the Supreme Court, such lands still constitute public lands, and that even where such institutions have ‘no further use of the land…, the land reverts to the State represented by the Lands Commission.’ Thus, to the extent that any state institution has released any such lands, instead of returning them to the Lands Commission, those releases are also unconstitutional and void.

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

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

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

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

Yours in the service of God and Country

OccupyGhana

cc.
Speaker of Parliament
Parliament House
Accra

Chief of Staff
Office of the President
Jubilee House
Accra

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

Chairperson
Ministerial Advisory Board
Ministry of Lands and Natural Resources
Accra

Media Houses

RE: RIGHT TO INFORMATION REQUEST ON THE STATUS OF THE DRAFT CONDUCT OF PUBLIC OFFICERS BILL, 2022

Our Ref

Our Ref: OG/2023/015

30 May 2023

Secretary to the Cabinet
Office of the President
Jubilee House
Accra

Dear Madam:

RE: RIGHT TO INFORMATION REQUEST ON THE STATUS OF THE DRAFT CONDUCT OF PUBLIC OFFICERS BILL, 2022

The above-entitled matter refers.

OccupyGhana is pleasantly amazed and amused to read that the Government has finally agreed to enact the Conduct of Public Officers Act, because it is now being compelled by the International Monetary Fund to do so, as part of the conditionalities for the US$3Billion Extended Credit Facility Arrangement for Ghana.

We have written to your office several times to demand that Cabinet approves the draft Conduct of Public Officers Bill, 2022 that was submitted to Cabinet by the Attorney-General, and then send it to Parliament for debate and enactment. We kept the pressure on until the Government slammed the door in our faces. In your letter to us dated 14 February 2023, ref OPCA.3/3/140223, you stated emphatically that Cabinet has “taken the view that there are adequate provisions that deal with the conduct of public officers in the existing law,” and therefore “Cabinet has declined approval for the Memorandum.”

What was even more shocking was that the Office of the President chose to wrongfully stamp this letter as “CONFIDENTIAL” and then mark each page as “SECRET.” You have neither acknowledged nor responded to our letters to you dated 20 and 27 February 2023, challenging this illegal branding of the letters and demanding their withdrawal.

Overall, Cabinet’s refusal to approve the draft Bill flew in the face of all the promises that this Government had made to Ghanaians on this matter, including, particularly the following statement at page 105 of the New Patriotic Party’s 2020 Manifesto:
[Attached]

Disappointed at this volte-face, we considered several options including petitioning the Right to Information Commission for a determination of the absurd claim of confidentiality and secrecy. We also considered suing the Government or presenting a bill to Parliament to amend the specifically offending portion of section 1 of the Public Office Holders (Declaration of Assets and Disqualification) Act 1998 (Act 550), which unconstitutionally extends by six months, the fixed times that the Constitution provides for assets declaration by public officers.

That is why we are amazed and amused that the Government, now under pressure from the IMF, is promising to pass into law, the Bill that you told us, as recently as February of this year, would not be approved. We note that the IMF COUNTRY REPORT No 23/169, page 22, paragraph 44, says “The authorities are also committed to addressing weaknesses in the existing asset declaration system for public officials—which currently lacks an effective verification process—by enacting a new Conduct of Public Officers Act.”

We are tickled that in the attachment titled MEMORANDUM OF ECONOMIC AND FINANCIAL POLICIES, at page 69, paragraph 52, the Government itself says “We will continue to strengthen organizational and legal arrangements for addressing corruption and enhancing accountability and integrity: This will include improvements in the existing asset declaration system. The enactment of Conduct of Public Officers Act will notably seek to address current weaknesses of this system.”

Then there is the Statement by Messrs Bijani, Sassanpour and Akosah dated 17 May 2023, which says at page 6: “The authorities are committed to address macro-critical gaps in Ghana’s governance framework, enhance accountability and fight corruption forcefully. They will enact the Conduct of Public Officers Act to address identified weaknesses in the existing asset declaration system.”

We are glad and saddened at the same time that the Government that thumbed its nose at us on this issue, has now found its way back to the table, compelled, not because the activism of well-meaning citizens, but because Ghana’s current economic dire straits and the dictates of the IMF. We however wish to assure the Government that we remain ready and willing to assist Cabinet in reconsidering the draft Bill, approving it and sending it to Parliament for debate and enactment.

We have therefore taken steps to address the previous, false claim by Cabinet that everything that the draft Bill seeks to do is already covered by existing law. We are attaching to this letter, a 20-page table containing our comparative analyses of the Bill and existing law, to show that contrary to what Cabinet claimed and which was communicated to us in your 14 February 2023 letter, the vast majority of the Bill’s clauses do not exist already in Ghana law. It is still our conviction that passing the Bill into law will go a long way to properly regulate the conduct of public officers, and bring to pass the Government’s new promise to the IMF that the new Act will “address current weaknesses of [the assets declaration] system” and “strengthen organizational and legal arrangements for addressing corruption and enhancing accountability and integrity.”

Yours in the service of God and Country,

OccupyGhana

cc. Chief of Staff
Office of the President
Jubilee House
Accra

Attorney-General & Minister for Justice
Office of the Attorney-General & Minister for Justice
Accra

Minister for Information
Ministry of Information
Accra

Executive Secretary
Right to Information Commission
Accra

Media Houses