Selective criminalisation of breach of fiduciary duties in new Lands Act discriminatory, unconstitutional – OccupyGhana

Pressure group OccupyGhana says it finds as discriminatory and unconstitutional, section 13 of the new Lands law, Act 1036, which criminalises the breach of fiduciary duties by managers of stool, skin, and family lands, but does not do same for managers of Public Lands.

The group makes the case that while Act 1036 falls short of specifically criminalising the same breach by managers of Public Lands, Article 36(8) of the Constitution imposes the same duties on all ‘managers of public, stool, skin, and family lands.

“Thus, the selective criminalisation in the Land Act is discriminatory, wrong, and therefore unconstitutional. Our view is that the list of specific crimes that public officers may commit under section 277 of the Land Act, does not cover the breach of their fiduciary and accountability duties,” it said in a statement outlining the outcome of a meeting with the Advisory Board of the Ministry of Lands and Natural Resources and officials of the Lands Commission.

They are therefore calling for an amendment to section 13 of the Land Act, to include managers of public lands. 

It further says “the universal criminalisation of these breaches will make public officials more careful and circumspect in performing their duties relating to the management and disposal of Public Lands.”

The group also noted that it remains resolute in its demands for full disclosure of transactions in the recent return of public lands to alleged pre-acquisition owners, a public inquiry into them, a freeze of all pending returns (including the Achimota Forest), and the issuance of a Policy Directive by government.

The group's call on the Ministry followed the Achimota Forest controversy, where portions of the Achimota Forest lands were degazetted and released to an Owoo Family, said to be pre-owners of the land, as well as the discovery that the Will of former Forestry Commission CEO, the late Kwadwo Owusu Afriyie (Sir John) contained portions of the Achimota Forest lands.

“OccupyGhana has specifically demanded that the Lands Commission and the Ministry produce the legal basis and Policy Directive governing these returns. At the meeting, chaired by a Co-Chair of the Ministry’s Advisory Board, OccupyGhana asked why the government, although it was under no legal compulsion to do so, would take Public Lands that belong to all Ghanaians, and return them to alleged pre-acquisition owners for next to nothing, only for the lands to end up in the hands of the rich and government officials.

OccupyGhana also stated its view that these transactions breached both the President’s constitutionally imposed duties as the trustee of all Public Lands on behalf of all the people of Ghana (under article 257 of the Constitution) and the Lands Commission’s constitutionally imposed fiduciary and accountability duties (under article 36(8) of the Constitution.),” parts of the statement read. 

At the end of the meeting, the Lands Commission agreed to within a month draft the Policy Directives and submit them to the Ministry to consider for adoption, the statement said.

"Lands Commission will, before sending the draft policies to the Ministry, engage all stakeholders, including OccupyGhana, in working on and reviewing the draft policies. Lands Commission is very concerned about private encroachment of Public Lands and would want OccupyGhana’s advocacy to also focus on that matter."