«LAND TENURE IN GHANA: MAKING A CASE FOR INCORPORATION OF CUSTOMARY LAW IN LAND ADMINISTRATION AND AREAS OF INTERVENTION BY THE GROWING FOREST ...»
LAND TENURE IN GHANA: MAKING A CASE FOR INCORPORATION OF
CUSTOMARY LAW IN LAND ADMINISTRATION AND AREAS OF
INTERVENTION BY THE GROWING FOREST PARTNERSHIP
Generally, it is recognized that forest dwellers in developing countries constitute one of the
poorest classes of people in the word. In Ghana, it is estimated that between twelve and fourteen million people live and depend on forests resources for their livelihoods (IUCN, Ghana Country Assessment Report Summary, 2007). The forest provides them with their daily food, shelter, employment and income, health and wellbeing etc. It is also on record that agriculture, forestry and mining sectors which are heavily dependent on land resource constitutes about 70% of Ghana’s gross domestic product (Land Administration Programme). However, it has been acknowledged that current efforts, in ensuring sustainability and fair access to forest resources, to make forestry work for these poor and deprived people have not yielded the desired results to positively impact their livelihoods.
To stem the tide of growing poverty, mismanagement and endemic corruption in the administration of forest resources and better access to natural resources, the Ghanaian government has initiated a number of policies, plans, strategies and programmes to improve forest governance and sustainable utilization of natural resources which will ultimately lead to the betterment of the livelihoods of forest dwellers. Some of these initiatives are the Forest and Wildlife Policy 1994, which is the principal document on which forest management legislation, strategies and programmes in Ghana are currently based. The broad aims of this policy center on collaborative resource management (CRM) which seeks to combine involvement, benefits and responsibility for all segments of the population to ensure the conservation and sustainable development of Ghana’s wildlife and forest resources(Agbosu et al, ISSER 2007: 104). Other policies which deal with forest management include the Framework for Sustainable Forestry in Ghana, which establishes local landowning and user communities as primary beneficiaries of forest resource management. Documents based on these include the Forestry Master Plan (1996-2020) and the Collaborative Resource Management (CRM) Policy and Strategy (2001). The latter Strategy seeks, among others, to involve and guarantee benefits while imposing responsible forest management on all forest users. Furthermore, the government has drawn up the Government Plantation Development Plan, which aims to create an enabling environment for investment by both the public and private sector.
Consistent with these policies and plans, particularly the collaborative resource management, natural resource management has tucked away in the last decade from resource protection, policing and exploitation role to one where the active involvement of communities are increasingly recognized as being crucial to a successful natural resource management.
Agbosu et al (2007) have noted that with the focus now “on people and their relationship with natural resources, has come a shift to issues of efficiency, equitable share and management in the benefits of natural resources, consultation and participation of all stakeholders, especially the local communities, whose livelihoods depends on natural resources” (Agbosu et al, ISSER 2007: 104).
1 At the global level several initiatives have also been established to pay attention and reflect local the needs of forest dwellers while preserving global services forests deliver. One such initiative is the Growing Forest Partnership (GFP) created by the World Bank in 2007 which is intended to link local and global processes and to promote decision making on the international stage which will reflect the views and needs of forest dwellers. The GFP seeks to make forestry truly sustainable and strengthen the new partnerships that reflect local needs and protect global public goods. GFP has been designed to facilitate and respond to bottom-up, multi-stakeholder processes in developing countries that identify national priorities and gaps impacting on the forest sector. The World Bank hopes that this approach would be a lasting way to have forests contribute to economic growth, to the livelihoods of forest-dependent people and poverty reduction as a whole, as well as preserving the global services forests deliver.
However, it has been recognized that all these beautiful initiatives, plans, programmes, strategies can only achieve their intended results in an even balanced land tenure regime in the country. It has been noted that until recently successive governments in Ghana have often neglected or understated the importance of land tenure issues in natural resource conservation and the non-economic values associated with “marginal” lands(Agbosu et al, ISSER 2007:103). In recognition of the important role played by land tenure in natural resource management and conservation and its impact on the livelihoods of forest dwellers, the International Union for the Conservation of Nature (IUCN), under the GFP, as part of its peoples’ diagnostics of the forest sector in Ghana to help identify priorities and gaps has commissioned this research into the land tenure regime in Ghana and to ascertain how they contribute to the on-going forest governance reform processes.
This paper is divided into five major parts. Part I provides a general overview of the land tenure system in Ghana. It notes that the land tenure system of Ghana is one of legal pluralism in which customary and statutory laws co-exist in a complex mix, and range of institutions and regulations having authority over land rights and multiple bodies through which disputes are resolved. To ascertain the evolution of the tenurial regime, this Part traces the historical trajectory of land tenure in Ghana in epochs of pre-colonial era of customary law, colonial times when customary land tenure was interfered with by contact with the European colonialist and post independence era of legal pluralism. This part concludes that the present tenurial regime in Ghana is unsatisfactory and anarchical and there is therefore need to re-think of better ways to fashion out our tenurial regime. Part II therefore advocates for a return to customary law as a possibility. It examines the customary land tenure of the Akans, among whom land tenure relations are largely based on a centralized system of customary political organization and landholding is co-extensive with political allegiance; the Ewes amongst whom land ownership and access are anchored around the family and land tenure is divorced from political allegiance. Part II further discusses customary land tenure as it applies among the northern tribes of Ghana. The discussion classifies Northern Ghana into two parts-the Northern Region where land ownership is vested in skins in a centralized political system (with an unpronounced role of the tendana) on one hand and the Upper East and Upper West Regions which operate in a less centralized political system having the earth priest (tendana) playing an elevated role in land ownership, access and disposition.
2 Part III examines the effect of land tenure on livelihoods of local communities. It argues in essence that the traditional customary land tenure system in times past ensured that each member of the community was guaranteed the right to access land for farming, housing and the enjoyment of other tenurial benefits. It notes that this egalitarian tenurial regime sustained the social security of most Ghanaians in the absence of any insurance benefits, as well as providing them with a sense of community. However, the present tenure arrangement in a plural legal context puts pressure on land which leads to effects that adversely impact the livelihoods of local communities. This Part identifies some of these effects as the decline in agricultural production for domestic food and industrial needs; food insecurity and insecure tenure which manifest in the unequal distribution of land, suboptimal utilization of land and landlessness. Finally, it identifies the involvement of state institutions and officials as leading to the inequitable distribution of public lands and undermining of the authority of traditional trustees of land thereby placing land in the hands of some few land speculators to the detriment of the local folks and institutions.
In Part IV, we establish the link between community forestry practices and tenure. We note that the connection between community forest practices and the involvement of the community in land administration depends on the tenurial regime recognized and practiced in particular communities. We further observe that since, customarily, forests are vested in communities the protection of the forest is the primary responsibility of the entire traditional society. The community sets rules for gaining access to the forests resources that have their legitimacy in religious taboos, violation of which attracts social and spiritual rather than formal legal sanctions. Although modernization and the advent of Christianity and Islam have tended to undermine the efficacy of these community practices, they have largely survived because the religious undertones have been scientifically explained and there is empirical evidence to show that such customary forest practices are observed even by logging companies granted licenses by the state institution.
In Part V, we recommend areas in which we believe the GFP could intervene on the ongoing forest governance initiatives as it relates to land tenure in Ghana. In response to our research finding that there is need for an in-depth research into customary land tenure and management systems and the incorporation of customary law into public administration of land, we recommend that GFP supports the on-going process of ascertainment and codification of customary law rules in particular communities in Ghana, a process currently being undertaken by the African Customary and Codification Law Project (ACLP) which is a joint collaboration between the German Development Cooperation(GTZ), the Law Reform Commission of Ghana and the various Regional Houses of Chiefs.
Secondly, given the weaknesses of the agencies managing land (District Assemblies, Regional Lands Commission, Administrator of stool Lands) in terms of lack of finance, competent personnel, corruption and mismanagement we reckon that it would be unwise to leave all land management functions in the hands of only public administrators. The true owners of the land (the community) should be made to feel as part of land administration in the local communities, particularly under the Collaborative Resource Management (CRM) strategy. In giving true expression to this collaboration between local communities and state institutions, we recommend that the GFP could intervene by assisting in establishing customary land bureaus in the various traditional /customary areas where titles to land and transactions 3 relating to interest in land would be locally recorded or collaborating with state institutions under the Land Administration Programme (LAP) to establish the proposed Community Land Secretariats.
Finally, we note that poverty amongst forest dwellers is the result of lack of integration and linkages between the exploitation of forest resources, the extractors of these resources and activities that positively impact forest dwellers, we recommend to the GFP an initiative we have dubbed the “Forest Partnership Initiatives and Linkages Programme”. Under this initiative, GFP would use its financial strength and influence to acquire or negotiate for land from the requisite authorities and lease or grant licences of same to the forest dwellers to cultivate timber or other commercial trees, or undertake subsistence farming on fairly better terms than what pertains under the abunu and abusa crop sharing systems. Also, the initiative would have a local businesses development component to diversify the local economy and improve the capacity of local businesses and institutions. This initiative we believe would significantly lead to the improvement of the livelihood of forest dwellers and the reduction of poverty in general.
OVERVIEW Ghana’s land tenure system is usually characterized as one of legal pluralism in which customary and statutory laws co-exist in a complex mix, and range of institutions and regulations having authority over land rights and multiple bodies through which disputes are resolved (Lavingne-Delville, 1998).
Customary and statutory land tenure may be described in terms of characteristics and forms of management which distinguish them (Bentsi- Enchil, 1964, Woodman, 1996; Agbosu, et al, ISSER 2007: 30). The former is characterized by its largely unwritten nature, based on local practices and norms that are said to be flexible, negotiable and location-specific (Agbosu, et al, ISSER: 30). Customary land tenure is usually managed by a traditional ruler, earth priest, council of elders, family or lineage heads. Its principles stem from rights established through first clearance of land, conquest or settlement (Agbosu et al, ISSER 2007: 30).
The State tenurial land system, on the other hand, is usually codified, written statutes and regulations, based on laws having their roots in the colonial power, which outlines what is acceptable and provides consequences for non-compliance. Management of such codified systems is usually in the hands of government administrators and bodies having delegated authority. The principles under girding this system derive from citizenship, nation building, and constitutional rights. Land rights are allocated and confirmed through the issue of titles or other forms of registration of ownership (Agbosu, et al, ISSER 2007: 30). It is instructive to note that despite the fundamental differences underlying the principles and systems for managing land under the customary and statutory forms, in practice this neat distinction is not obvious (Agbosu, et al, ISSER 2007:30), perhaps due to certain commonalities and overlaps in both systems. These two systems, which form the foundation of Ghana’s land tenure system, have undergone several years and stages of interaction which is worthy to recount in epochs of history: pre-colonial, colonial and post- independence eras.