The issue of land management, ownership and security have assumed prominent spots in Ghana today. Conflicts arising from land titles, have led to the emergency of phenomena that were hitherto, unknown in this country. Phenomena such as; land guards and armed conflicts leading to gruesome murders, the razing down of whole towns and villages, which have resulted in the mass displacement of people, especially, women and children.
These have arisen because Ghana’s land laws and procedures contain numerous inconsistencies and are cumbersome.
Article 36(8) of the 1992 Constitution of Ghana states: “the state shall recognize that ownership and possession of land carry a social obligation to serve the larger community and in particular, the state shall recognize that the managers of public, stool, skin, and family lands are fiduciaries charged with the obligation to discharge their functions for the benefit respectively of the people of Ghana, of the stool, skin, or family concerned, and are accountable as fiduciaries in this regard.”
This Article in the Constitution is a clear recognition of the concept of trusteeship in land holding with emphasis that those entrusted with the responsibility of managing land in Ghana, must do so in the wider interest of their communities.
And again Article 257(6) of the Constitution makes the following provision:
“every mineral in its natural state in, under, or upon any land in Ghana, rivers, streams, water, courses throughout Ghana, the exclusive economic zone and any area covered by the territorial sea or continental shelf is the property of the Republic of Ghana and shall be vested in the President on behalf of, and in trust for the people of Ghana”.
There is a plurality of land tenure and management prevailing in Ghana.
There is the state/public system and the customary system. These systems over the years have been and are poorly articulated, and as a result appear to be set on a collision course. “Public lands” in Ghana fall into two main categories: land which has been compulsorily acquired for a public purpose or in the public interest under the state lands Act 1962 (Act 125) or other relevant statue; and land which has been vested in the President, in trust for a landholding community under the Administration of Stool Lands Act, 1962 (Act 123).
In the case of land that has been compulsorily acquired by the state, all previous interests are extinguished. Both legal and beneficial titles are vested in the President, and under the law, lump sum compensation should be paid to victims of expropriation.
However, with “vested land”, the instruments create dual ownership where the legal title is transferred to the state, whilst the beneficial interests rest with the community. Under the vesting order, the government does not pay compensation. However, any income accruing is paid into the respective stool land account and is dispersed according to the constitutional sharing formula. The formula was to be applied by the Administrator of Stool Lands which was established in 1994 (under Act 481) and charged with three main functions, namely:
- Establishment of a stool land account for each stool into which shall be paid all rents, dues royalties revenues or other payments whether in the nature of income or capital from stool lands;
- Collection of all such rents, dues, royalties, revenues or other payments whether in the nature of income or capital and to account for them to the beneficiaries;
- Disbursement of such revenues as may be determined in accordance with the provision of the constitution; 10 per cent of the revenue accruing from stool lands is to be paid to the office of the Administrator of Stool Lands to cover administrative costs, the remaining revenue shall be disbursed in the following manner;
- 25 per cent to the landholding stool through the traditional authority for the maintenance of the stool in keeping with its status.
- 20 per cent to the traditional authority and
- 55 per cent to the District Assembly within the area of authority in which the stool lands are situated.
But Prof. Kasim Kasanga, who was recently appointed Minister of Lands and Forestry, raises an objection to the creation of Administrator of Stool Lands. He argues that it is unnecessary.
In his opinion, “The decentralized regional lands commissions are charged with the management of public and vested lands. The commissions have wide representation and appear to be doing a good job, under difficult conditions”. He said that, “currently, government vested lands are limited in the country. With the exception of portions of Kumasi town lands, Brong Ahafo, Eastern and Greater Accra regions, all lands in Ghana are family, clan ‘Tendamba’ or stool lands. In effect” he continues, “if public and vested lands are managed by the regional lands commissions, which indeed and in practice hold all the records, the Administrator of Stool Lands has no real job to do.” He argues further that. “In any case the job cannot be effectively done without the support of the regional lands commission officials. It therefore appears an anachronism to create the office of Administrator of Stool Lands, centralized in Accra. Even if regional offices are created,” he goes on, “the officers would be recruited from the lands commission, which accounts to a splitting or duplication of functions”.
It is common knowledge that some traditional authorities in peri-urban Kumasi have questioned the rationale behind the creation of the office of the Administrator of Stool Lands, since they are perfectly capable of managing their lands based on their long standing customary land laws and procedures.
Some highlights of the problem areas
- The plurality of land tenure and management systems; that is state and customary, prevailing in the country are poorly articulated and therefore, increasingly cause problems of contradiction and conflict.
- State management of land has generally worked against the interests of poorer group while benefiting the government bureaucracy and those able to wield levers of power in the modern state sector.
- Even though a land title registration scheme was introduced in 1986 to forestall the problem of land insecurity and uncertainty in land transactions with the enactment of the land title Registration Law, 1986 (PNDCL 152), over a decade after its enactment, its impact has been negligible.
- Government and state agencies that have been created to regulate issues of land management and ensure land security and development, either duplicate each other are simply inefficient and lack trained staff and the resources to do so. Agencies such as the Lands Commission; the Land Valuation Board, the Land Title Registry, the Administrator of Stool Lands, District, Municipal and Metropolitan Authorities, Town and Country Planning Department, the Survey Department and the Stool Lands Boundaries Settlement Commission.
It will be unfair at this stage to suggest a radical move from what pertains in land management and tenure system in Ghana today. As it stands, the pluralistic system based in part on indigenous law and common law is in the right direction. However, a lot more is left to be done in the face of realistic and modern demands and trends in socio-economic development to contain the problem of land ownership, and security to ensure that traditional authorities complement the efforts of state organs and agencies to effectively manage land with the appropriate legislative and logistic support, so that Ghana can achieve its long term development goals in peace and order.
By Emmanuel K. Dogbevi
This article was first published in FOELINE Magazine No. 15, January – March 2002.