Opening:
One of the issues that has engaged the attention of most people in this country is the saga of the late Mr. Siaw and the confiscation of the then Tata Brewery Limited by the Armed Forces Revolutionary Council (AFRC) in 1979. There has been a lot of discussion in several quarters on the facts of the confiscation and the legality of the entire action by the military junta which ruled Ghana at the time. In this article, I will attempt to discuss the legalities of the confiscation rather than the historical antecedents leading to it. It is my expectation that discerning people who are privy to the real facts may come up with the historical build-up to the confiscation itself and what may have led the young military junta to target a wholly owned Ghanaian entity for confiscation by the Government. It has also been stressed in many a fora that Ghana still bears the scars of that confiscation as most local investors hesitate to invest in local industry by building large industrial establishments such as that owned by the late Mr. Siaw.
The Legal Background:
The Achimota Brewery was originally confiscated pursuant to the Transfer of Shares and Other Property Interests (Tata Brewery Limited) Decree, 1979 (AFRCD 9). Under sections 1 and 2 of the AFRCD 9, the government had power thereunder to transfer and did in fact transfer under the said decree, all shares, debentures etc in Tata Brewery to the State. It also reserved the right to deal in them in whatever manner it deemed fit.
Three years later, upon the advent of the Provisional National Defence Council (PNDC), it passed a law in 1982 with the objective of establishing beyond any legal doubt, the legal basis for the confiscation of the Tata Brewery in 1979. The rationale for the promulgation of additional laws to reinforce a decision that had been taken in the previous military regime remains unclear. It has however been advocated that in the intervening period between the handover by the AFRC which had actually ordered and supervised the confiscation of the Achimota Brewery in 1979 and the re-emergence to power of elements of that military regime in December 1981, there had been efforts at law to reverse the confiscation and get the Brewery handed back to its lawful owners. The Transfer of Shares etc to the State (Removal of Doubt) Law, 1982 (PNDCL 30), re-emphasized that the transfer of shares etc. to the State could not be deemed to have consequently transferred any liabilities of the Company to the State. It further set aside any judicial decision to the contrary and prohibited all actions in that regard. This law set out to clearly prevent the judiciary and indeed any other member of the Siaw family, sympathizer or even students and lovers of the law to get the confiscation overturned in a court of competent jurisdiction and get the confiscated brewery back to its lawful owners.
Does the 1992 Constitution make any provisions on matters such as under review? Ordinarily one would presume that in such a Constitution, an aggrieved citizen can find succour in some provisions that may be utilized to undo any hardships and human rights that had been abused under the military regimes. However, a close review of the 1992 Constitution reveals that the PNDC worked hard to prevent any such moves with the insertion of the Transitional Provisions. The Transitional Provisions of the 1992 Constitution, particularly section 35(1) is worded to the effect that such confiscations cannot be lawfully reversed by any authority under the Constitution. However that provision needs to be read together with section 35(2).
S35 (1) of Transitional Provisions to the 1992 Constitution of Ghana reads as follows:
“Subject to subsection (2) of this section, any confiscation of any property and any other penalties imposed by or under the authority of the Armed Forces Revolutionary Council and the Provisional National Defence Council shall not be reversed by any authority under this Constitution.”
It is important at this juncture to note that both AFRCD 9 and PNDCL 30 have been repealed by the Statutes Law Revision Act of 1997 (Act 543).
The Legal Effect of Repealed Legislation
The general common law rule is that when an Act is repealed or expires, lapses or otherwise ceases to have effect, it is regarded, in the absence of a contrary provision, as having never existed except as to past and closed matters or transactions. This has been captured in Ghana’s laws under sections 8 and 9 of the Interpretation Act, 1960 as follows:
8. (1) The repeal or revocation of an enactment shall not-
(a) revive anything not in force or existing at the time when the repeal or revocation takes effect; or (b) affect the previous operation of the enactment or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed thereunder; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
The effect of sub-section 8(1)(c) is that where any person has acquired any right or privilege or incurred any obligation or liability under an enactment, the subsequent repeal of that enactment shall not affect the continued enjoyment of that right or privilege or the satisfaction of the obligation or liability under the repealed enactment. The effect of this provision is fundamental to the affirmation of any interests that may have arisen in respect of that particular asset after the confiscation. It is therefore respectfully submitted that the repeal of both AFRCD 9 and PNDCL 30 by Act 543 therefore does not, under law, affect any rights that any person acquired from the State when it took over the Brewery after the confiscation.
Legal Effect of s35 (2) of Transitional Provisions, 1992 Constitution
Is there a dead-end to any attempts at recovering confiscated properties by original owners of confiscated assets under the AFRC/PNDC regimes or indeed under any former government?
S35 (2) of the Transitional Provisions states that:
“Where any property or part of any property of a person was confiscated on the basis of his holding a public or political office or on any other basis and it is established to the satisfaction of the Commissioner for Human Rights and Administrative Justice that the property or that part was acquired before he assumed the public or political office or that it was otherwise lawfully acquired, the property or that part shall be returned to that person”.(Emphasis mine).
The critical words in that provision have been italicized and made bold. There seems to exist therefore, a window of opportunity under s35 (2) of the Transitional Provisions for original owners of confiscated properties by the AFRC or the PNDC or their successors and assigns to attempt a recovery of their assets. It is submitted that under applicable legislation, original owners of such confiscated properties may make an application, not to the law courts but to CHRAJ, not for compensation but a return of the property. (Emphasis mine). The most important criteria are that it can be shown that the property was acquired before the individual involved assumed public or political office. More critically, if it can be shown that the property was lawfully acquired, the property shall be returned. Time may however be of essence to such applications. It will be interesting for an institution such as CHRAJ to refuse to consider an application on the grounds that Ghana’s Constitution has been in operation since 1992 and therefore it will not entertain any attempts at calling on it to investigate complaints of confiscation of property and a demand for restitution by original owners. One also has to consider the amount of investments that have been made by new owners of such properties. The Constitution is the supreme law of the land. The constitutional provisions have made it possible for properties to be returned under s35 (2) of the Transitional Provisions. In my professional opinion, a major risk to acquirers of such confiscated properties may lie in an action to CHRAJ under s35 (2) of the Transitional Provisions of the 1992 Constitution for a return of confiscated properties. It is instructive to note that s35 (1) was made subject to s35 (2).
Conclusion
The era during which these confiscations took place is one that all Ghanaians must work collectively to prevent recurring. It is my humble submission that in many instances, adequate compensation by the Government may be an option to be considered in order to soothe the pain of the families of many Ghanaians whose loved ones lost their properties and other assets without any lawful cause and seem to have been disabled by the very Constitution and constitutional bodies that have been established to assure human rights and the dignity of every Ghanaian living everywhere. Whether the National Reconciliation Commission efforts have gone a long way to meet the legitimate aspirations of original owners of confiscated properties to get justice waits to be seen. It will however be intriguing for any such effort to be launched. Ghana’s laws will benefit from such an effort, doubtless.
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