Peter Kuntu-Mensah
Spatial Information Engineering
University of Maine
Orono, ME 04473
pmensah@spatial.maine.edu
http://www.spatial.maine.edu/~pmensah/mensah
1. Abstract
The land tenure system in Ghana is basically a dual one; a communal system that dates as far back as the days of the old Ghana empire lives side by side to a comparably recent title registration system. Though the customary system has in the main been able to support economic activities and has enabled land marketing of one form or another, pressures of population growth , infrastructure developments, ownership insecurities, widespread land disputes and attendant litigation, and world economic trends make it imperative that the traditional customary system adapts to a formal system of registration of title. For Ghana, the question is not "to title or not title". Over the years various attempts have been made towards title registration but they have not been very effective. It is only the most recent land title registration law of 1986 which seems to provide the proper machinery for successful registration of title and rights and interests in land. Hopefully, it is only a matter of time, until it becomes a reality in most areas of the country. This paper reviews the land tenure and registration and suggests some ways of effective and timely implementation.
2. Introduction
Ghana is a small country in the West Africa below the Sahara desert, lying between latitudes 4 and 11 degrees. It covers an area of approximately 92,000 square miles, about the size of Oregon. According to the latest estimates, the population is about seventeen million. Like most of West Africa, Ghana can be divided into three distinct geographical areas - the coast, the forest and the grassland. The coast and the forest cover the southern half of the country while the grassland covers the northern half. Sitting about 400 miles on the equator, Ghana's climate of hot weather and abundant rainfall makes agriculture the main occupation. Generally the land of Ghana, particularly the forest, has proved to be a rich provider(Sale, 1963). Apart from its ability to support subsistence farming and large scale cocoa, oil palm, rubber, and timber plantations the land is also pregnant with many mineral deposits such as gold, diamonds, manganese, and bauxite. Given this richness, it is understandable why the land is so important to Ghanaians and perhaps the reason they came here in the first place. The land is more than a physical entity; it is the most important ingredient in the economic life of the people; it is religion to others and also has political connotations.
The people of Ghana had not always lived at the present location; history has it that they were a people of the ancient black African Empire of Ghana which ruled a wide section of West Africa in what is today the nations of Mali and Mauritania, for more than seven hundred years - from AD 300 to AD 1076. This was a rich and thriving civilization, well-known then for its gold, copper, salt and ivory trading centers, art, architecture, and universities. It had a complex system of government including kings, princes, ministers and tax collectors(Sale, 1963). It is from this kingdom that the social customs and political organizations of Ghana had evolved. Facing invasion from the northern countries, the people of the eastern section of the old empire, moved ( in 1010, 1054, and finally 1076), south into the grasslands and eventually settled in the southern half of present day Ghana (1200 to 1400). These are the "Akans", the largest people group in Ghana. The Akans include the Fantis on the coast and in the west , Ashantis in the forest region, and a third tribe, the Guans, now absorbed by the Ashantis. At about the same time the Akans settled in Ghana, they were joined by the Gas(1500's) and the Ewes(1600's) who migrated from western Nigeria to eastern coast of Ghana. In northern Ghana, other people groups of the Negroid origin from Western Sudan (Acquaye, 1972), moved into the grasslands that the Akans had vacated(Sale, 1963), and through centuries of wars and inter-marriages formed themselves into three major tribes- the Dagombas , the Moshi and the Gonjas. Through the years these large groups have subdivided into smaller tribes but they still maintain their identity. All Akans tribes, for instance, maintain fundamentally a similar language, similar religion and similar system of government. The people of Ghana established a state-making machinery, that was capable of addressing land ownership, transfer and security issues until the arrival of the Europeans in the 19th century. It is against this background that the traditional communal land tenure system is discussed.
3. Traditional Communal Land Tenure System
Land tenure refers to the way in which rights to land is obtained and distributed among people. The land tenure system in Ghana, like other forms of tenure and ownership is seated in antiquity(Acquaye, 1972). It has evolved from the patterns of ancestral settlements to the lands, similar to evolution of land tenure systems elsewhere in the world. Indeed the current land tenure patterns maintain most of the ancient customs. Land in most of Africa has economic, religious and political connotations. Asabere (1994) points out that the land, as an economic asset, is the most important input in subsistence agriculture and for the production of housing . In a religious sense, the land also ties the dead to the living and to the yet unborn in a perpetual fellowship. This requires the living to honor ancestral heritage by preserving the land and so manage it for the benefit of future descendants. Politically, land expresses territorial sovereignty. It supports the chieftaincy economically and swears the chief to protecting the ancestral stool.
Land tenure in Ghana, especially in the rural areas, is predominantly communal. Communal land ownership is the expression used to describe the system whereby land is collectively owned by an extended family, clan or community of ancestrally related people with the control or administration of the land vested in the leader or his appointee(Gyasi, 1995). In Ghana, people of common descent owe allegiance to a symbol of collective authority (such as the "stool" for the Akans of southern Ghana or "skin" for the northern peoples) and own the land communally. The chiefs or community leaders hold the land fiduciary for the whole community. While this is the case among the Akans, in northern Ghana the power of trustee may be entrusted to the chief or Tendana, the land priest (Acquaye, 1972). Contrary to common misconceptions, the chiefs or leaders do not have absolute rights over community lands. The chief is merely a trustee and the ultimate title is not vested in him but in the whole community (Asabere, 1994). Individual rights to land for farming or housing are acquired through the community or by inheritance. Among the Dagombas of northern Ghana, the customary system requires land not to be alienated to a stranger by sale or lease. It is absolutely forbidden to transact land for financial benefit of any kind. Farming a piece of land or even building on it does not warrant a claim to absolute title to the land; right is limited to use and the produce only. Farming rights to land could be terminated and reverted back to the community for any number of reasons including insubordination to the chief, abandonment of the land, death of a sub-group, or when upon expiration a temporary right is not renewed. Members of a land - owning family can inherit land rights upon death of the father, but strangers do not enjoy the same right. This is in contrast to the Akan situation, where individual rights are transferable to progeny both patrilineally or matrilineally .
4. Landmarks of the Tenure System
The history of the land tenure system in Ghana is replete with a number of occurrences that have contributed to shape what it is today. The arrival of the Europeans changed the face of the land tenure system. The British indirect rule delegated the administration of land to the paramount and divisional chiefs, thus minimizing the powers of the of village chiefs . The northern Ghana was set up as a protectorate and the Land and Native Acts Rights Ordinance of 1927 declared all lands public , vested in the colonial governor. But even before this time, beginning in the late nineteen century, the land tenure system had started to take a major turn. Instead of "lending" , outright sale of land became possible, This was precipitated by migration of people from the south and the north to the forest areas where extensive lands could be used for oil palm and cocoa plantations. This produced the "company" and "family lands". Company lands resulted when a group of non-kinsmen associated together for the sole purpose of purchasing land from a vendor chief for commercial farming (Hill, 1970). This turned out always to be patrilineal in nature. Each member of the group was entitled to a piece of the land proportional to the amount of his contribution. The land was usually divided into strips. On the other hand, the family lands originated from small groups of matrilineal relatives, led by a leader or heads. Individual rights were established by clearing and planting a piece of the land. Original farmers could allot portions of land to members of their ebusua(immediate family) who required them. Upon death, the land is inherited by single survivor and so is not divided up. According to Gyasi (1994), land was also acquired (1) through leasing for a fee for 25-50 years, (2) through a combination of lease and sharecropping, and (3)through pure sharecropping which is subdivided into:
- abunu, where the return from the farm or the farm itself are shared equally
between land 'owner' or 'landlord' and the tenant.
- abusa, where the ratio is one-third to the landlord and two-thirds to the tenant.
- abunan, where the ratio is one-quarter to three-quarters.
Apart from the cocoa and oil palm commercial farming, concessions for mining activities, timber and rubber industries also intensified the trend towards large sales of community based lands. This commercial opportunism in the face of capitalist developments involved acquisition of the land, thus undermining the communal ownership. The government also had the right to acquire any piece of land that was considered eminent domain for a fair compensation. Naturally, since land is not inexhaustible, all these activities, coupled with growing population produced scarcity of land especially in the areas where these activities were concentrated. The communal system in Ghana did not prevent the extensive acquisition of land, even by strangers, for oil palm (Gyasi, 1994) and for cocoa farming from the 1890 to the 1950s(Hill, 1970) and beyond. This illustrates that the communal system can and did adapt to favorable economic conditions. However, there are still some significant defects which need to rectified. The various attempts at registration have tried to remedy these defects.
5. Land Title Registration
Most of the ills of traditional tenure found in the literature can be traced to or stem from tenure insecurity due to uncertainty of ownership and litigation . The registration of title to land means the entry in the folio of the land register the various interests in the land entitled to a person. Though mere entry in the records does not guarantee title, when land registration is properly implemented, uncertainty of ownership is remedied and litigation is minimized. This is emphasized in the Memorandum of Land Title Registration Law, 1986 (PNDCL, 152) which states its twofold purpose as "first, to give certainty and facilitate the proof of title; secondly, to render dealings in land safe, simple and cheap and prevent frauds on purchasers and mortgages." Until the enactment of the Land Title Registration Law of 1986, most statutes instituted in the Gold Coast (name of Ghana before independence in 1957) and modern Ghana only promoted a system of deeds and not title registration(Agbosu, 1990). The Queen's Advocate of the Colony drafted a Bill enacted into the Land Registration Enactment of 1883 to provide for the registration of instruments affecting lands in Ghana and Nigeria. The term ÒinstrumentsÓ in this ordinance was ambiguous and made no reference to surveys or plans to be attached to registrable instruments. This was replaced by the Land Registry Act of 1897 which was essentially no different from the one before it but constructed elaborate provisions for proving documents by oath or affidavit. Both were inefficient systems and succeeded only in creating duplications, conflicts, and fraudulent transactions which continued into the 1950s. By this time infrastructural development programs and high influx of population to the urban cities necessitated an urgent look at the mounting problems of title insecurity. The Land Development Act of 1960 and the Farm Lands Protection Act of 1962 were then enacted to protect purchasers of land for development or farming. But these Acts were designed as ad hoc measures to deal with problems of uncertainty of title and costly litigation and they proved ineffective and insufficient in solving the problem in its totality(Agbosu, 1990). Hence the Land Registry Act of 1962 was introduced repealing the colonial registration. Though this Act improved on previous ones by making a provision for the description of land areas by reference to a plan, it failed to require the attachment of accurate plans to the registrable instrument. This suggested some instruments could be registered without survey plans. It also did not provide for any systematic adjudication process and even excluded oral transactions as might have been validly conducted in the customary system. With these defects the Land Title Registration Law of 1986 was introduced to address the weaknesses in the land Registry Act of 1962.
Paragraph 2 of the Memorandum states :
"Systematic land tenure research in Ghana has revealed radical weaknesses
in the present system of registration of instruments affecting Land Registry Act,
1962 (Act 122). The chief among them is litigation, the common sources of
which are the absence of documentary proof that a man in occupation of land
has certain rights in respect of it; the absence of maps and plans of scientific
accuracy to enable the identification of parcels and ascertainment of
boundaries ; and lack of prescribed forms to be followed in case of dealings
affecting land or interests in land."
It appears that Land Title Registration in Ghana has finally found the right ingredients to succeed. Whereas this compulsory system has not supplanted traditional ownership, it seems to provide the conditions for an effective machinery for securing title to land and the rights thereof to be transferred without substantial bottlenecks. Major provisions in the Law confirm that the following objectives needed for efficient implementation of Land Registration (Agbosu, 1990) are accounted for:
(a) the positive identification of the physical boundaries of the land
to which interest relate , both on the ground and on a map;
(b) adjudication and settlement of competing claims in respect of
positively identified plots of land;
(c) the registration of the adjudged interests; and
(d) the guarantee by the state that such recorded interest shall be
indefeasible.
The system was began in the Greater Accra region (Accra is the capital city with over 2 million people) and designated agricultural areas. From here, it will be decentralized at the regional level with networking to one central office in Accra. It calls for a Chief Land Registrar and Regional Land Officers who will report to him. The Chief Registrar collaborates with the Director of Survey Department in technical matters concerning boundaries. There are also the Adjudication committees who resolve any disputes concerning land rights. Provided all the procedures are followed, it is hoped that with time efficient and effective land title registration will become a dynamic working reality for most of the country.
6. Conclusions and Discussions
Over a century since the idea was first introduced into the country, it appears that Ghana now has the best it can hope for in a Land Title Registration system, given the realities of today. The system does not supplant the customary system; it gives recognition to ownership acquired under them and most importantly seeks to protect such rights and interests by providing the machinery for security of title. With the system firmly grounded in the written law, it would appear that what needs to be done is the efficient implementation of the system to the level where it will be commonplace. The system should be decentralized even further to the local level. In the initial stages, concentration should be on adjudication efforts to ascertain or resolve rights, especially in the rural areas. The adjudication committee should involve reliable local personnel who may be more knowledgeable in the land tenure situations in their areas. The adjudication process should also be sufficiently publicized to alert all property owners. Where boundaries are not clear or do not exist owners should be encouraged to erect monumentation for their parcels - either by placing beacons or pegs in the ground at property corners or by use of linear features such as walls, fences or hedges. With reference to the survey of these properties, field survey methods as currently used are not the cheapest, fastest, or most cost effective and the accuracies being imposed are overly burdensome for initial parcel delineations. Means of upgrading accuracies of parcel delineations over time should be considered. The Survey Department and the Survey profession should use less expensive, fast and simple technologies like GPS for cadastral surveying. This means that current efforts by the Department of Geodetic Engineering, University of Science and Technology and their German counterpart to install an IGS station (Fosu, 1997) needed for GPS activities should be encouraged. Surveyors and related professionals should be trained and retained in these new technologies. We believe that if the right procedures are followed, it will only be a matter of time until the full impact of the land registration will be realized. Even if Land Title Registration does not result in all or most of the benefits described in the literature, ensuring certainty of title to ownership, minimizing or eliminating litigation, and reducing the number of socially disruptive land disputes will be adequate enough reason for implementing a reliable land registration in Ghana.
7. References:
Acquaye, E. and M. C. Murphy (1973). Land Use, Land Tenure and Agricultural Development in Ghana. Rome, FAO.
Agbosu, L. K. (1990). Land Registration in Ghana: Past Present and Future. Journal of African Law, 34(2): 104.
Asabere, P. K. (1994). Public policy and the emergent African land tenure system: the case of Ghana. Journal of Black Studies 24(3): 281-290.
Elbow, K. (1996). Country profiles of land tenure : West Africa, Land Tenure Center, University of Wisconsin Madison.
Fosu. C, (1997) personal communications
Gyasi, E. A. (1994). The adaptability of African communal land tenure to economic opportunity: the example of land acquisition for oil palm farming in Ghana. Africa, 64(3): 391.
Hill, P. (1970). The Migrant Cocoa -Farmers of Southern Ghana; Cambridge University Press, Cambridge, England.
Kasanga, R. K., J. Cochrane, R. King, and M. Roth.(1996). Land Markets and Legal Contradictions in the Peri-Urban Area of Accra, Ghana: Informant Interviews and Secondary Data Investigations. Land Tenure Center, Wisconsin. Prepared in collaboration with the Land Administration Research Center, University of Science and Technology, Kumasi Ghana.
Provisional National Defense Council. (1986). PNDC Law 152: Land Title Registration Law, 1986, Accra, Ghana Publishing Corporation.
Sale J. K. (1963). The Land and people of Ghana. J. B Lippincott Company, Philadelphia