ADMINISTRATION OF RURAL LANDS CUSTOMARY LAND SECRETARIATS AS LOCAL STRUCTURES
FOR EFFECTIVE RUARAL LAND ADMINISTRATION IN GHANA
PRESENTED BY
MARK KAKRABA-AMPEH
(NATIONAL FACILITATOR)
CUSTOMARY LAND ADMINISTRATION UNIT
GHANA LAND ADMINISTRATION PROJECT
MINISTRY OF LANDS FORESTRY AND MINES
Background
Land Administration in rural Ghana falls within the broad area of customary
land administration generally governed by customary practices and enacted
legislation1. About 80% of lands in the country are under the ownership and
control of customary authorities in the form of stools/skins, families, clans, and
heads of communities with the remaining 20%, vested in the state. The
constitution of the Republic of Ghana gives recognition to all forms of land
ownership and also expects that such ownership and possession would carry
the obligation to serve the larger community. It therefore regards the
managers of public, stool, skin, and family lands as fiduciaries charged with
the obligation to discharge their functions for the benefit of the people of
Ghana, of the stool, skin, or family concerned and are accountable as
fiduciaries in this regard.2 Fulfilling the obligations of ownership and possession
of land as required by the constitution, calls for effective land administration
systems that guarantee security of tenure and easy access to land. These in
turn call for clarity of boundaries, recognition of all forms of land rights and the
existence of rules and mechanisms for conflict resolution. Such system of
administration would require maintenance of accurate records of all rights
and interests whether acquired as natural rights of members of the land
owning community or derivative interests supported by appropriate cadastre.
In Ghana, a major set back in customary land administration and for that
matter rural land administration is paucity of records on rights and interests
both inherent and derivative. Most land transactions are parol and even
though legal under indigenous law, they are left out in the purview of the
Land Registry Act, 1962 (Act 122). Again, whereas Part I of the Conveyancing
Decree, 1973 (NRCD 175) provided for the recording of such transactions by
the Registrar of Deeds, there is no evidence that this is being implemented3.
The Land Title Registration Law 1986 (PNDC Law 152)4 provides for classes of
interests in land that can be registered under the law which include
1
National Land Policy 1999, page 2, section 2(1)
1992 Fourth Republican Constitution of Ghana, page 38, section 36(8)
3
Title Registration, Land Resource Management and Land Use Policy, Seminar 3 rd to 8th August, 1980 edited by
Sam B. Amisah, page 37.
4
Land Title Registration Law, 1986,(PNDCL 152). Section 19
2
customary law freehold and lesser interests such as ‘abunu5’ and
‘abusa6’which are prevalent in rural areas. Unfortunately, however, the
implementation of the law has since the past 22 years, been limited to
predominantly, urban communities and no attempt has so far been made to
provide some guidelines as to how such rural types of land rights could be
registered. Consequently, these laws have not influence change in rural land
administration where most land transactions are governed by customary law.
Added to the above is the problem of indeterminate boundaries of
customary owners. Thus land related conflicts and litigation, multiple grants of
the same parcel of land to different tenants, haphazard development,
persecution of tenant-farmers, fraud and lack of accountability among others
have over the years characterised customary land administration.
Recognition given to customary land ownership and the latitude for
customary owners to manage their lands naturally require the establishment
of local structures for the performance of land administration functions at the
local level. Unfortunately, however, such structures were virtually non existent
at the commencement of Ghana’s Land Administration Project in October,
2003. The only visible forms of local land administration structures were those
of the Asantehene’s Land Secretariat in Kumasi, Okyehene’s Land Secretariat
at Kyebi and Gbawe Kwartei Family Land Secretariat at Gbawe, in Accra.
This paper presents a background to the development of Customary Land
Secretariats (CLS) under the Land Administration Project in Ghana. It looks at
the purpose of strengthening Customary Land Administration, the CLS and
their functions as well as Land Management Committees and their functions.
The process of establishing CLS is then discussed after which lessons learnt as
at June 2007 and the need to switch to Demand-Led Approach are outlined.
The paper ends with the improvements made through the development of
CLS, challenge of how to sustain, in particular, rural based CLS and lessons
learnt..
Strengthening Customary Land Administration
Customary land administration reform features prominently in the on-going
land administration reform in Ghana with the objective of “supporting the
development of Customary Land Secretariats (CLS) in Ghana, as effective,
accountable local structures for administration of land with particular
attention to be paid to strengthening the capacity of CLS to address the
needs of diverse populations within their communities, and recognize the
great range of customary tenure systems in different regions of the country”7.
‘Abunu’ is a customary share tenancy where the farmer and the owner of the land share the farm produce
equally. The land owner, in addition to the land, provides the farming inputs.
6
‘Abusa’ is a customary tenancy where the farmer takes two-thirds of the farm produce while the land owner
gets a third. The farmer provides the farming inputs.
7
Project Memorandum: Ghana Land Administration Project Institutional Reform & Development: Strengthening
Customary Land Administration, by Camilla Toulmin, David Brown and Richard Crook
5
The project intervention is aimed at piloting the CLS concept with the
following outputs expected at the end of the first phase of five years:
 CLS established and strengthened in pilot areas in partnership with
government and public land sector agencies
 Improved quality of records and accessibility of information at local
level on land use and holdings, land transactions and availability, and
associated financial and cadastral records
 Improved traditional/customary level accountability in line with the
Constitutional Provisions, in a way that protects the rights of all land
holders within their communities, recognizes the community interest in
land management, and provides an effective interface with
democratic, local and national government structures, and
 Provide lessons and information for policy development).
The Land Administration Project identifies the following activities as the steps
towards achievement of the above stated purpose:
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Establishment and/or strengthening CLS, equipped with appropriate
administrative, technical and material support;
Harmonisation of land records between CLS, government land agencies
(LSA) and District Authorities, to establish a unified, decentralized public
record of land availability, use and transactions;
Training activities to provide the range of skills required for effective,
accountable, management of land by CLS, such as financial procedures,
manual and computer-based record management;
Facilitating learning through exchange of best practice and field visits
between pilot CLS in Ghana, and internationally, where appropriate;
Research to identify improvements to the institutional, policy and legal
framework for customary land administration, including alternative dispute
resolution, clarification of the legal interests of customary freeholds, and
building on the diverse interests and settings found within Ghana.
Support to survey and demarcate the boundaries of lands within the
authority of the CLS being supported through the project.
Customary Land Secretariats and their Functions
Customary Land Secretariats are decentralised land administration units
established and owned by land owning communities who are recognised by
the Constitution as managers of their own lands in accordance with
customary practices and usage.
The functions of Customary Land
Secretariats include:
1. Provision of information about the land owning community to the
public.
2. Provision of land information to the public – ownership, rights, use, etc.
3. Keeping and maintaining accurate and up to date land records.
4. Keeping records of all fees and charges associated with land grants.
5. Liaising with Plot Allocation and Town Development Committees to
ensure that development conforms to planning schemes/layouts or as
agreed by the Community at the local level.
6. Receiving all correspondence on behalf of the Land Management
Committee.
7. Serving as the link between the land owning community and the public
sector land agencies, District/Municipal/Metropolitan Assemblies,
Environmental Protection Agency, etc.
8. Serving as the link between an applicant and the Land Management
Committee.
9. Preparing accounts of all income and expenditure.
10. Preparing periodic reports on all activities of the Secretariat.
11. Promote ADR and keep records on land related disputes settled at the
local level through ADR.
It must be noted, however, that the functions of CLS are not limited to those
outlined above. In some of the established and functioning CLS, other
functions such collection of ground rent, sensitisation of local communities on
land issues in their areas of jurisdiction and the provision of social services and
infrastructure such as lorry park, market stalls etc. have been identified.
Land Management Committees and their Functions
As part of the mechanisms to ensure that the CLS as an office remains
accountable to the customary land owners and carry out their functions in
line with the aspirations of the community, the customary land owners are
expected to constitute Land Management Committees/Boards whose
membership may include representatives of the land owning community
(stool/skin, family, clan etc.) professionals such as Lawyers, Planners,
Valuers/Estate Managers and Land Surveyors where available, and other
identifiable interest groups including land developers and users. Among the
functions of a Land Management Committee/Board are:
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Exercising general oversight responsibility over the operations of the
CLS
Offer policy direction to the CLS
Hire all categories of staff of the CLS and to fire any such personnel
where necessary.
Determine salaries and allowances for CLS staff.
Provide the CLS with details of all persons with capacity to execute
instruments affecting land within the CLS area
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Offer guidelines for determination of ‘drink money’8 and ground
rent.
Review performance of the CLS and determine new direction for
effectiveness and growth.
Resolve land related disputes through ADR
Perform any other functions to be determined from time to time by
the customary land owning group
Progress in the establishment of Customary Land Secretariats
Between October, 2004 and June 2007, a total number of 10 CLS were either
strengthened or established with one in each of the 10 administrative regions
of Ghana. Out of the this number, 3 were already in operation before the
inception of the project and these were therefore considered for
strengthening to make them more efficient and accountable to their
respective communities. The remaining 7 were established by the project
from scratch. The approach for selection of land owning communities for
assistance was top-down where government land sector agencies
collaborated in the identification of areas for the establishment or
strengthening of CLS. By June 2007, it was abundantly clear that the topdown approach (what is now known as the supply-led approach) was not
working towards project expectations and the rate of progress was too slow.
With the exclusion of customary land owners in the selection process, there
was lack of ownership by the customary. The secretariats were perceived as
additional public land sector agencies that are likely to interfere with the
rights of the customary authorities. Again, there were high expectations from
the customary authorities for funding of CLS operations including payment of
staff salaries, maintenance of equipment and other incidental expenses.
Since July, 2007, the project has revised the approach to make it demandled. Assistance for the establishment of a CLS is extended to customary land
owners who request for it. The communities are fully engaged in the process
from scratch through education and sensitisation on the essence, ownership,
functions and benefits of the CLS. Interested customary authorities then invite
the project for assistance. Upon expression of interest, an assessment is
conducted which include:
(a) Economic viability indicated by;
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8
Demand for land relative to supply of available land
Extent of catchment area of customary authority
Potential for income generation from land transactions to support CLS
once established
Nature of land based economic and social activities.
‘Drink Money’ is the local term for capital payments made by a tenant which may be equivalent to premium.
(b) Customary authority’s Readiness for CLS, indicated by;
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Willingness to allow necessary changes to extant land management
structures.
Preparedness to meet costs of personnel and material etc. for running
the CLS.
Preparedness to provide suitable accommodation for CLS.
Preparedness to maintain and replace equipment of the CLS.
With the demand-led approach, greater commitment has been shown in all
the new areas where request for assistance have been received and another
set of 10 CLS are scheduled to be established within the second quarter of
2008.
Improvements in Customary Land Administration
Even though it is too early to assess the full impact of CLS in customary land
administration and the intended linkages with the national level land
administration machinery, progress made in some of the pilot areas no doubt
signal the great potential of this structure as a solid foundation upon which
sound national land administration systems could be developed.
The
following are some of the achievements so far:
(a)
Recording of Land Transaction.
About 8,000 land transactions have been recorded in six of the ten existing
CLS. This development offers the customary land owners the opportunity to
keep track of all land grants emanating from their respective areas. It also
enables them to link the grantees to the public land sector agencies for
official registration of the transaction thereby promoting the development of
comprehensive public land records.
(b)
Enumeration of properties and recovery of land records
As part of the process of building land database for the customary authorities,
the Land Administration Project is facilitating enumeration of properties in the
existing CLS areas be they urban or rural. Emphasis here is on the dominant
land use in the CLS area. Thus in Wassa Amenfi CLS (Western Region) which is
predominantly rural, about 16,000 farm lands have been enumerated
providing both attribute and spatial information on the farms. The boundaries
of these farms have been surveyed in a process involving all persons sharing
common boundaries. In other areas, lands in townships based on town
development schemes have been enumerated to establish all rights and
interests of members of the communities. An important opportunity offered
by this exercise is the identification of the varied rights and interests in different
areas and the threat of diminution of customary freehold through the grant of
leasehold title to subjects of the land owning group and the need for policy
interventions. To address this issue, the project has constituted a Land Rights
Committee to develop appropriate instruments for recording customary
freehold interests.
(c)
Promoting Alternative Dispute Resolution
Land Management Committees of the various customary authorities have
taken up dispute resolution activities. In some cases ad-hoc committees
have been constituted to settle boundary disputes to facilitate enumeration
of properties including farm lands. In the Dormaa Ahenkro CLS (Brong Ahafo
region) some disputes pending at the law courts have been withdrawn and
settled through ADR. An example is given of a 14 year old boundary dispute
which was withdrawn from the formal courts and successfully settled by this
Land Management Committee. The project has also engaged ADR specialist
to help build capacity of the CLS in this regard.
(d)
Harnessing Economic potential through sound land management
practices
Through education and sensitisation the customary authorities are becoming
increasingly aware of the economic value of land and the need to adopt
sound land management practices in order to reap the full economic and
social benefits of their land resources. Some of the existing CLS have
expanded the composition of their land management committees to include
professionals such as lawyers, real estate practitioners, land surveyors,
Planners etc. Others have expanded membership of the Land Management
Committees to include representatives of District Assemblies, mining
companies and timber firms operating on their lands, rural banks etc. all in the
interest of getting technical and financial support to strengthen and sustain
the CLS.
(e) Interface developed between land registration agencies and the CLS
which has reduced the frustration of individuals seeking registration services
and have led to a streamlining of processes and procedures.
(f) The duplication of the land records of the public sector land agencies for
the CLS to ensure access to land information at the local level, which
facilitates the administration of land at the local level. About 7500 records on
lands within the Gbawe CLS in Accra have been duplicated and digitised for
storage at the local level.
Challenges
It can be confidently said that a successful implementation of the CLS
concept and scaling it up to cover the entire country would significantly
transform the landscape of land administration in Ghana. However, there are
a number of challenges which need to be managed in the process. One
such challenge is financial sustainability of CLS. Some of the offices,
particularly the rural based ones are likely to have difficulties in raising
adequate revenue to run activities of the office. Directly related to this is lack
of capacity to engage personnel with requisite technical knowledge for
effective management of the offices in such revenue deficient customary
land areas. To address this problem, a study on financial sustainability of CLS
has been commissioned. In the interim, the project is adopting innovative
options such as varying the level of sophistication of records management
and updating to reflect the financial strength of each CLS. Where manual
records rather than computer based records would provide the requisite
capacity for a rural based CLS, this would be adopted to enable every area
to have a CLS. The Office of Administrator of Stool Lands9 (OASL) as a
collaborating agency would be strengthened to provide technical support to
CLS that cannot engage the services of qualified land professionals.
Lessons Learnt
The CLS implementation has provided a number of lesson learning
opportunities. While it may take some time for lessons to stand out clearly, the
following are worthy of notice:
1.
Top-down approach to the establishment/strengthening CLS is not
the best as it fails to win commitment and ownership of the
customary land owners.
2.
Given the right orientation and training, CLS could resolve land
disputes at the local level and substantially reduce the number of
land cases that come before the formal courts.
3.
With the appropriate training and support, CLS could manage land
records and use such records to improve land revenue.
Conclusion
Land administration at local levels by customary authorities has not been
properly organised with the necessary structures to deliver security of land
tenure and sustainable land use. The development of customary land
secretariats over a short period of less than five years has opened windows of
opportunities for strengthening land administration system in Ghana. A few
lessons have been learnt and it is hoped that as we scale up, there would be
even more interesting experiences to share and more challenges for
innovations in the enterprise of developing an efficient land administration
system that would promote economic development and foster more social
cohesion.
9
The Office of Administrator of Stool Lands is a constitutional body established by an Act of Parliament, Act
481 of 1993 with the mandate to collect and disburse stool land revenue throughout the country. It employs
estate management professionals and has regional and district offices and is therefore closer to the customary
land owners at all levels.