The Situation of customary land tenure: Ghana

by the Ghana Team

13th September, 2011 Douala

Presentation Outline

• If and How communities own or control their forests

• If and how communities use forests and participate in state and/or community forest management

• What major threats to community control exist (including acquisition or leasing forests to domestic and foreign investors, forest and mining concessions and protected areas, etc

If and how communities own or control their forests

Historical perspective • Communal forestry regulation: pre-1850

• Chiefs expropriation of communities: 1850 -1950

• Central state expropriation of chiefs: 1950 -1962

• State capture: 1962- 1992

• Land tenure and rights are complex and policy is weak in addressing them

Ghana Land law is in most part customary:• 80% of land holding is customary. Remaining 20% are

under state ownership but are lands taken from stools for public use.

• The customary land holding:• Category comprise of stool, skin, clan and family lands• Common trait of communal ownership and guided by

customary tenets

• Ownership inter-generational • Land is held in trust by the head of the community

for the entire members • Allodial title resides in the community, clan or family

and is not transferable • Varies across and within ethnic groups.• Dynamic• Contentious amongst community institutions –

chiefs, shrines, families, asafo etc.• Ownership title is mostly oral and least documented

• Stool land as define by Article 259 (1) of the 1992 Constitution “includes any land or interest in, or right over, any land controlled by a stool or skin, head of a particular community or the captain of a company, for the benefit of the subjects of that stool or the members of that particular community or company”

• Constitution stipulates such lands “shall vest in appropriate stool on behalf of, and in trust for the subjects of the stool in accordance with customary law and usage”

• Acquisition of land in the case of forest reserves guided by Administration of Lands Act, 1962 Act 123– Stool holds “ownership” – Government holds “management”

• State plays the role of fiduciary of the land– Functions include rights of allocation, leasing, collection of

rents or incidents related to management

• Constitution has not provided real solutions but has sought to “broker” peace between chieftaincy elite and national bureaucratic elites to disadvantage of other community institutions and of ordinary farmers

• Statutory laws: Land Registry Act 1962; Administration of Lands Act 1962; Land Title Registration Law 1986;Lands Commission Act 1994 have clauses that weakens the administration and management of customary laws by land owners e.g

Stool land owners cannot dispose of lands without the consent of the Minister of Lands

Summary• Communities by the extension of their stool, skins,

families own forest resources• Appropriation of these rights by state and traditional

elites • No real value in ownership to forest owning

communities without management rights• Documentation of various customary laws and

codification in state law crucial • What is the place of law and reform in solving this

problem

If and how communities use forests and participate in state and/or community forest

management • Communities use of forest only in the form TUPs NTFP permits

• As opposed to large concession rights in TUCs, Salvaging permits, etc by the state

• Participation in state management minimal Inspection team in the grant of timber rights Unpaid labour in the clearing of boundaries Labour in the new national forestation programmes

Consultation in the negotiation and signing of SRAs Compensation for destroyed property

• Policy is right in creating forest resources Whether as individuals or community in planted

trees Naturally occurring trees even in off-reserve belongs

to the state

Summary• How can rights to naturally occurring trees off-

reserve be secured for communities?• Option of devolution of management rights in off-

reserve areas to communities through their stools, their District Assemblies

• Policy and legal support, institutional arrangement for replication, up-scaling of CBLAs, CBNRMs, CREMAs, and other forms of community Based Forest Management options

What major threats to community control exists?

• The status-quo gives the credence to Attack from State regulation of production (e.g.

centralized grant of concessions / TUCs, allocation or royalties etc.)..

Attack from (mostly foreign) concession holders

• Land grabs and implication for community rights and poverty of millions of displaced occupants

“Craze” for biofuel, “REDD projects” etc and appropriation of customary lands for this

Selfish interest of chieftaincy and state elite

Summary• Country level implementation of initiatives (REDD,

etc) have the potential of resolving this conflict or further marginalizing communities

• Constitutional review process, etc has brought the issue and debate of it to the national level

• Ghana has initiated a process to further clarifying land/tree tenure issues but skewed towards REDD / carbon financing

• Clarify and strengthen community rights to their lands resources through multi-stakeholder consultation process

• Awareness of the value of the resources• Policy, legal review process under FLEGT, NREG and

constitutional review process are potential opportunities for addressing these

Conclusion • We need to move towards strengthening local

community rights and support communities to have a process which they are comfortable with and that defines their rights consistent with national priorities and the constitution.

THANK YOU