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26.01.2006 Feature Article

Eminent Domain: The Law Currently Dogging both Ghana & ..

Eminent Domain: The Law Currently Dogging both Ghana & ..
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the USA

The founding fathers of the United States of America, in their infinite wisdom, found it an absolute necessity to insert in the US Constitution the right of the government to take private property for public use, provided it pays the owner "just compensation". The Fifth and Fourteenth Amendments of the US Constitution specifically stipulate this law.

In Ghana, the founding fathers and mothers of the Fourth Republic also found it convenient to have similar laws embedded in Article 20 of the 1992 Constitution. To remove any doubt whatsoever, that article categorically states that: ".......Compulsory acquisition of property by the State shall only be made under a law which makes provision for (a) the payment of fair and adequate compensation......" The same article requires also that "the taking of possession or acquisition is necessary in the interest of defence, public safety, public morality, public health, town and country planning".

EMINENT DOMAIN is the power of the government to take back private property for public use. It is a law which dates way back in history to English Law. In the US, the Fifth and Fourteenth Amendments of the Constitution not only specifically require "just compensation" to be paid to the property owner, but also that the "public use" of the property in question be amply demonstrated by the State.

Indeed, countries all over the world have used their own versions of this law to enable infrastructural development. The United Kingdom, where the law originates, Australia, Canada, France, Germany and developing countries in Africa, Asia and South America, have all used this law to pursue the development of the landscape in their territories. In the US, the millions of miles of freeways, highways and roads that crisscross this vast land couldn't have been built without the exercise of eminent domain. The 15,000 or so airports, the hundreds of military bases, defense installations, hydroelectric power plants, harbors, shipping channels and the thousands of government office complexes all over this land wouldn't have been possible without eminent domain. For sure, interstate commerce, as we know it in the US today, would not be possible without it, period!

In Ghana, in those heady days of a fledgling Independence from colonialism, neither the Akosombo Dam, the Tema Harbor, the Accra-Tema Motorway, nor the Kotoka International Airport would have come to fruition without the law of eminent domain. The universities at Legon, Kumasi and Cape Coast wouldn't have seen the light of day without it. At the local level, schools, hospitals, community recreational parks and utility companies (water, power, and telephone) have been the beneficiaries of eminent domain legislation.

For several years, the letter and spirit of this law have worked beautifully for the benefit of the public at large. However, recent developments in both the US and Ghana have forced the public to start asking whether the "public use" portion of the eminent domain bargain is truly being demonstrated by government. In the US, the power of big business is gradually and brazenly gnawing at the tenets of this very sacred law. Powerful business tycoons in the US are egregiously using their connections at city hall to skew this law to favor their business interests. The "public use" aspect of the law is being gradually twisted by city hall to benefit private business interests at the expense of private property owners. Indeed, many city governments all over the US have used eminent domain over the years in thousands of cases to dream up new plans for the redevelopment of their cities to yield more tax revenues for city government. The usual excuse given is "advancing the public purpose of eliminating slum and blight"

Nothing more got the American public's attention recently than the US Supreme Court's latest decision to affirm a lower court ruling in which private property was being taken away by city government for eventual use by another private entity. In the landmark case, Kelo v New London, the city of New London, Connecticut -- after falling on hard times and desperately looking for some form of economic development to increase its tax base -- authorized its own private corporation, New London Development Corporation, to develop the Fort Trumbull neighborhood of the city to encourage new economic activities. The corporation then set forth a development plan that included a resort hotel and conference center, a new state park, research, office and retail spaces and up to 100 residences. In the year 2000, the city approved the development plan and authorized this private corporation to acquire the land in the Fort Trumbull neighborhood against the wishes of some of the property owners. The corporation needed all 115 lots of residential and commercial properties in the neighborhood for its grand project, but 15 out of the 115 owners would not sell. The city of New London then chose to exercise its right of eminent domain by ordering the private corporation, acting as its agent, to CONDEMN the properties of the 15-holdout owners. The holdouts resisted and the case eventually went to court, the lead plaintiff being Suzette Kelo who owned a small home in the development area. The Connecticut court ruled in favor of the city and Kelo took the case to the US Supreme Court, where she really got the attention of the American public. Very quickly, civic organizations like the libertarian Institute for Justice, NAACP (National Association for the Advancement of Colored People), the AARP (American Association of Retired Persons) and the SCLC (Southern Christian Leadership Council) all jumped on the eminent domain bandwagon. The Supreme Court's 5-4 decision on June 23, 2005 in favor of the city of New London completely stunned the American public. There was outrage. Nobody could believe the Supreme Court agreeing to private property being seized only for use by another private entity! Even Congress jumped into the fray. Congressional reaction was swift. On June 27, 2005, barely four days after the Supreme Court decision, Senator John Cornyn (R-TX) introduced legislation to limit the use of eminent domain for "economic development" if that is the only reason advanced for "public use". In the euphoria, similar bills followed his very quickly from four other Congressmen in the House of Representatives. As I write this piece, the fervor by the American public has still not died down on this issue.

Justice John Paul Stevens, writing for the majority opinion, stated that local governments should be afforded wide latitude in seizing properties for land-use decisions of a local nature. According to him, "The City has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue." The American public completely disagreed!

It was rather the dissenting opinion, written by the outgoing Justice Sandra Day O'Connor, that resonated with the American public. Justice O'Connor argued that the use of this power in a "reverse Robin Hood fashion" -- taking from the poor and giving to the rich -- would become the norm, not the exception. She wrote: "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries were likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms" The American public couldn't agree more! Her predictions are, indeed, taking place all over America today!

Indeed, it was against this backdrop that this writer's attention was drawn to a recent pronouncement by a certain "Manklalo" (Overlord), in the Ga Traditional Area, bordering on the issue of eminent domain in Ghana. I wasn't amused. Quietly, I wondered to myself if this traditional ruler ever took the time to read the Constitution of his own country before making those outrageous pronouncements. According to the report (ghanaweb, Jan 10, 2006), the Manklalo demanded that the government of Ghana give back to the Osu Stool, "for proper re-allocation", all government bungalows and other properties on the Osu Mantse Layout European Residency. If this is not REVERSE EMINENT DOMAIN, I don't know what is! No wonder the Osu Mantse himself, Nii Nortey Owu III, quickly declared that he had not authorized the Manklalo or any other person to seize any properties or make any public statements regarding Osu Stool affairs.

What most Stools, Skins and chiefs in Ghana do not seem to understand is that, despite their claims of holding the lands of Ghana "in custody" for Ghanaians, the doctrine of eminent domain is alive and well and the government has every right to take land away from them, pay them just compensation and use the land for the benefit of Ghanaians. Judging from their awful track record of unnecessary land litigation, duplicate, triplicate and quadruplicate land sales, with their goons masquerading as land guards, killing innocent citizens over frivolous land disputes, the Manklalo and his cohorts better understand that Article 20 is embedded in the Ghanaian Constitution to protect Ghanaians from fraudsters like them. The Doctrine of Eminent Domain is alive and well in Ghana, if they care to know! Peter Atsu Los Angeles, California. Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.