Ghana went into colonisation with two broad types of customary land arrangement. In one, a traditional leader was the custodian of the land and gave his followers equitable access to it. In the other, there was no traditional leader.
Colonial administrators then made their mark on the land ownership regime, and since independence change has continued through national policies. Another influence on land use has been globalisation, which exposes rural land to large-scale transactions and takeovers. Changes in the inheritance system, mainly from matrilineal (through women) to patrilineal (through men), are also a factor.
All these changes have been grafted on to the customary land regime, distorting how it works.
As an academic researching sustainability and pro-poor land policy, I am interested in the rights that come from customary governance of land.
The research I did with colleagues set out to explore the stability of rights in Ghana’s land governance system. We did this through a review of court cases and studies of land rights in Ghana.
We found that traditional leaders – formerly custodians of the land – have become absolute land owners. This is weakening the customary land system. With their new powers, traditional authorities have become a large conduit for transfers of land.
There’s a risk that this will deprive communal users of the land.
We argue that whatever changes are made through policy or regulatory reforms, they should recognise long established and communally held interests in land.
Stability of customary land rights in Ghana
Our study established that about 80% of all land in Ghana is under some form of customary governance. The chieftaincy institution itself, which regulates customary land rights, is recognised under Chapter 22 of the constitution. Chiefs are supposed to be guardians of the land. They have the capacity to make rules and to induce or coerce compliance. Their decisions are not always popular.
Land rights take a number of forms. We looked at which ones have been most stable over time.
The right of access is the most basic. Our study found that it was the most stable among the rights available to land users. Customarily, some farmlands cannot be accessed on some days of the week, but the practice is merely an exercise of cultural and religious beliefs. It’s not intended to deprive members of the public from accessing any piece of land. The right to access land should not translate into a right of ownership, as Ghana’s courts have made clear in several rulings (such as Bimpong v Bawuah 1991).
Use or withdrawal rights are the next level. They are the rights to obtain resources from a piece of land. In most Ghanaian communities, some people have rights which are supposed to be perpetual and inheritable. They guarantee unlimited access to family and clan lands for whatever uses, subject only to restrictions from the family or clan head. Other members of the public, until recently, could obtain use rights over land through sharecropping arrangements, grants and rentals. In recent times the commonest ways of gaining access to land for use are rentals and sales. Sharecropping and grants are seldom practised. Rights to use land are under pressure because what was a common resource has become a commodity.
The highest on the hierarchy of rights are the rights to exclude or alienate. Individuals who have private title to land can exclude others from entry, or sell the land to any other person as provided by law. But when it comes to land customarily owned, only the clan and family heads and chiefs can exercise the right to exclude. Some of these individuals are exercising powers akin to ownership and this is resulting in indiscriminate sale of lands. The practice spells danger for future land access and use for other people. Private land owners are also now restricting access.
In sum, we found that access rights remain the most stable. Use and withdrawal rights are under severe stress. Exclusion and alienation rights are very stable because they strengthen chiefs’ authority over land. But they have become a conduit for the widespread sale of land. This has consequences for access, use and management rights.
Abuse and resilience
Customary guardians of the land have the support of increasingly liberal policies and laws. These policies seem to be well intended – to reduce double sales of land, improve land investment, and protect private property. But they enable customary holders to alienate the land.
Studies have shown that liberal policies have resulted in a growing tendency of titleholders to abuse their powers. Land is being sold that should be held in trust for members of the landowning group. One study found that over 2 million hectares of land had been acquired in Ghana. There are no checks and balances on the exercise of those powers.
As a result, the customary land governance system in rural Ghanaian communities is crumbling. Traditional routes to access and use land are gradually being substituted by cash transactions. The chieftaincy institution has become a convenient conduit for large-scale land transfers, a situation unintended by customary arrangements. It has the potential of depriving customary users of their rights to land in the future.
We argue that Ghana’s customary land governance system has been resilient over the years, as it guarantees access to land for various users. Rather than adopting policies and programmes which seek to liberalise it, Ghana should build on the customary land system to ensure that it responds the needs of the diverse users.