Rexford Dodoo – Lecture given on 9th April 2011 at GaDangme Nikasemo Asafo
Chairman Nii Nortei Omaboe, Chief moderator, Mr Ade Sawyer, Mr King Quarcoo, distinguished guests, ladies and gentlemen:
It is a great pleasure to be with you in this Hall in Balham this evening, and I am very grateful to the three named gentlemen for inviting me to share some thoughts with you today on the topic of the rights and problems associated to Ga lands and in my opinion search for what should be good Land Policies for GaDangme’s in the 21st Century.
It is heartening to know that there are concerned leaders and citizens in our midst willing to come together, sit together, listen together and perhaps later on share, discuss, and look at ways in which we could all help as individuals to move our community and country forward in this regard.
Therefore the big question before us this evening then is what is the theory of rights in land, and what if any, of those rights, exist within Ga lands.
Furthermore in order to understand the rights and problems associated with Ga lands to date, it is also necessary to examine the origins of the Ga state and its institutional failures that ensued with the introduction of the institution of private property which de-legitimized community ownership of the Ga society and subsequently deprived the inhabitants of the Ga state of their ownership and rights to their lands.
What constitutes Rights?
The discussion that follows is more on the theoretical discourse on the genealogy of rights and how the land/property rights are derived. Robert V. Andelson gives a detailed account of what are the primal rights; and starts thus:
A right is a relationship between value and obligation. It is the claim that value be respected. This claim has an objective pole and a subjective pole. The former is the demand that value be respected in things external to us. The latter is the demand made upon our total being by potentialities that lie within us. The internal potentiality for fulfilment of a destined end rightly demands nurture, and renders doubly grave obligation for positive response towards realization of that end
Andelson’s definition of rights may seem to be a discourse into abstractness, but the view of this paper is that it lays good ground for the understanding of land rights. Andelson continues to argue that a right is value’s corresponding claim “to external freedom to perform that function”. This relationship in which respect for value finds expression is freedom and this freedom is the primal right from which others spring”. Such rights are human rights, land rights, right to freedom of expression right to the ownership of property etc. But whoever wants these rights to be attributed to them, they must accept their correlative obligations. That is they must show willingness to abide by the regulating principle of reciprocity. For this reason, a right is a functional relationship between value and obligation. If rights are severed from their concomitant responsibility they become void.
Rights do not exist in a vacuum. They have to be contextualised within a framework or order within which they are recognised and given force. In this framework rights are indivisible and not hierarchical. Why?
Rights do not admit hierarchical arrangement, since at the bottom they are one. Neither, for the same reason, can they conflict with one another. Only freedoms which are reciprocal require for their realisation the violation of other freedoms. Where there is a conflict between apparent particularizations of reciprocal freedoms, close analysis will reveal that one or more of the competing particularizations are non-reciprocal and therefore false. The framework in which rights are contextualised is therefore very important. It must be geared to the whole human situation in order to ensure that no person is treated arbitrarily. The framework should provide a terrain or what has been called “level playing ground” in which all men and women are capable of standing in permanent and voluntary relations with one another by the principle of reciprocity.
From the above discourse we can say that land rights are expressed in a relationship between a person and an object of ownership, the obstruction or interference with that relationship would constitute a taking and compensation would be required for direct losses flowing from the taking. This relationship derives from the right to observance of contracts and the right to ownership of labour products. Contract in a way is a form of association.
The right to land (or property rights) is, therefore, one of the fundamental human rights. It is the right of a human being to have access to national resources, and to own land/property anywhere inGhana. But this right is justified “if and to the extent that it conduces to the general welfare of society”
In the contemporary world the following are some of the examples of the constitutional prescriptions that declare that property rights should be exercised with the objects of ensuring social function and rendering it accessible to all:
Germany: “property imposes duties; its use should also serve the public well being
Greece: Rights deriving from (property) may not be exercised contrary to public interest.
Ireland: The exercise (of property rights) ought to be regulated in civil society.
The proposal of a Model Constitution seems quite explicit that an absolute land right or private ownership of land and natural resources is not admissible as a right. That is, these lands are extended to those who, having the freedom to the use of the land and national resources, also accept its obligations and are not apt to threaten its existence. That is exclusive tenure should indemnify those who are thereby dispossessed, e.g. through relief in taxation. As indicated earlier all rights become void if severed from their concomitant responsibilities. One of these responsibilities is to act as trustee for the rights of the unborn. This is because there is a natural and social legacy to which general posterity has an indefeasible claim. Andelson sums this claim as follows:
“Nature and freedom together constitute an entailed estate, the principal of which no generation may legitimately squander. …When present property is purchased at a price which will hang like a millstone around the neck of future generations, a gross betrayal of stewardship has been committed”.
The argument is that land/property rights must be properly balanced with equity and basic human needs. This brings us back to the issue we raised earlier. That is, establishing the broad zone of interaction between the individual interest and public interest and reconciling the different rights.
There is nowhere in the land domain where this conflicting interaction between individual land rights and interests and public interest is more pronounced than in the area of compulsory acquisition of land and compensation for land in Accra. It is also in this domain where human rights and trusteeship are violated with impunity.
Let us now look at how this theory relates to Ga lands in its historical context.