The rights and problems associated with Ga Lands

Chairman Nii Nortei Omaboe, Chief moderator, Mr Ade Sawyerr, Mr King Quarcoo, distinguished guests, ladies and gentlemen:

It is a great pleasure to be with you in this Hall in Balham this evening, and I am very grateful to the three named gentlemen for inviting me to share some thoughts with you today on the topic of the rights and problems associated to Ga lands and in my opinion search for what should be good Land Policies for GaDangme’s in the 21st Century.

It is heartening to know that there are concerned leaders and citizens in our midst willing to come together, sit together, listen together and perhaps later on share, discuss, and look at ways in which we could all help as individuals to move our community and country forward in this regard.
Therefore the big question before us this evening then is what is the theory of rights in land, and what if any, of those rights, exist within Ga lands.

Furthermore, in order to understand the rights and problems associated with Ga lands to date, it is also necessary to examine the origins of the Ga state and its institutional failures that ensued with the introduction of the institution of private property which de-legitimized community ownership of the Ga society and subsequently deprived the inhabitants of the Ga state of their ownership and rights to their lands.
What constitutes Rights?
The discussion that follows is more on the theoretical discourse on the genealogy of rights and how the land/property rights are derived. Robert V. Andelson gives a detailed account of what are the primal rights; and starts thus:
A right is a relationship between value and obligation. It is the claim that value be respected. This claim has an objective pole and a subjective pole. The former is the demand that value be respected in things external to us. The latter is the demand made upon our total being by potentialities that lie within us. The internal potentiality for fulfilment of a destined end rightly demands nurture, and renders doubly grave obligation for positive response towards realization of that end
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Andelson’s definition of rights may seem to be a discourse into abstractness, but the view of this paper is that it lays good ground for the understanding of land rights. Andelson continues to argue that a right is value’s corresponding claim “to external freedom to perform that function”. This relationship in which respect for value finds expression is freedom and this freedom is the primal right from which others spring”. Such rights are human rights, land rights, right to freedom of expression right to the ownership of property etc. But whoever wants these rights to be attributed to them, they must accept their correlative obligations. That is they must show willingness to abide by the regulating principle of reciprocity. For this reason, a right is a functional relationship between value and obligation. If rights are severed from their concomitant responsibility they become void.

Rights do not exist in a vacuum. They have to be contextualised within a framework or order within which they are recognised and given force. In this framework rights are indivisible and not hierarchical. Why?
Rights do not admit hierarchical arrangement, since at the bottom they are one. Neither, for the same reason, can they conflict with one another. Only freedoms which are reciprocal require for their realisation the violation of other freedoms. Where there is a conflict between apparent particularizations of reciprocal freedoms, close analysis will reveal that one or more of the competing particularizations are non-reciprocal and therefore false. The framework in which rights are contextualised is therefore very important. It must be geared to the whole human situation in order to ensure that no person is treated arbitrarily. The framework should provide a terrain or what has been called “level playing ground” in which all men and women are capable of standing in permanent and voluntary relations with one another by the principle of reciprocity.

From the above discourse we can say that land rights are expressed in a relationship between a person and an object of ownership, the obstruction or interference with that relationship would constitute a taking and compensation would be required for direct losses flowing from the taking. This relationship derives from the right to observance of contracts and the right to ownership of labour products. Contract in a way is a form of association.

The right to land (or property rights) is, therefore, one of the fundamental human rights. It is the right of a human being to have access to national resources, and to own land/property anywhere inGhana. But this right is justified “if and to the extent that it conduces to the general welfare of society”
In the contemporary world the following are some of the examples of the constitutional prescriptions that declare that property rights should be exercised with the objects of ensuring social function and rendering it accessible to all:
Germany: “property imposes duties; its use should also serve the public well being
Greece:     Rights deriving from (property) may not be exercised contrary     to public interest.
Ireland:     The exercise (of property rights) ought to be regulated in civil society.

The proposal of a Model Constitution seems quite explicit that an absolute land right or private ownership of land and natural resources is not admissible as a right. That is, these lands are extended to those who, having the freedom to the use of the land and national resources, also accept its obligations and are not apt to threaten its existence. That is exclusive tenure should indemnify those who are thereby dispossessed, e.g. through relief in taxation. As indicated earlier all rights become void if severed from their concomitant responsibilities. One of these responsibilities is to act as trustee for the rights of the unborn. This is because there is a natural and social legacy to which general posterity has an indefeasible claim. Andelson sums this claim as follows:
“Nature and freedom together constitute an entailed estate, the principal of which no generation may legitimately squander.  …When present property is purchased at a price which will hang like a millstone around the neck of future generations, a gross betrayal of stewardship has been committed”.

The argument is that land/property rights must be properly balanced with equity and basic human needs. This brings us back to the issue we raised earlier. That is, establishing the broad zone of interaction between the individual interest and public interest and reconciling the different rights.
There is nowhere in the land domain where this conflicting interaction between individual land rights and interests and public interest is more pronounced than in the area of compulsory acquisition of land and compensation for land in Accra. It is also in this domain where human rights and trusteeship are violated with impunity.

Let us now look at how this theory relates to Ga lands in its historical context.

The transformation of property rights in the Ga state.

As Firman Sellers states in her book the transformation of property rights in the Gold coast, she defines property rights as “the power to limit the ability of other persons to enjoy the benefits to be secured from the use and enjoyment of material good”. The enforcement of those rights gives one actor, the rights-holder, the economic profit from a given source. It also gives that actor the power to exclude all others from using that resource in any capacity. As we can all see this is in conflict with the theory of rights that has been described above that there is no hierarchy in the rights to land.

She further states that the transformation of property right redistributes both wealth and power. The process is inherently prone to conflict.  Individuals and groups in society likely will mobilize to articulate a new, definition of property rights that are favourable from a distributional point of view (and so claim a privileged place in society), or defined against a change in the already favourable status quo. These people may lobby state actors directly to capture the state’s coercive power and enforce their preferred property rights system. Or, they may seek to create an alternative source of authority, enforcing property rights privately or at a local level. In either case, the subjects’ actions are a crucial determinant of which property rights system is enforced, and whether that system is secure. The state alone does not dictate the outcome.

The transformation of property rights is a product of the interaction between state and society. State rulers create or manipulate political institutions to pursue their own goals. Individuals in society compete within the shadow of those institutions to secure a privileged share of society’s resources. Combined, the two groups’ actions determine both the structure of property rights and the degree to which those rights are enforced.

The transformation of property rights to land in the Gold coast, now Ghana, vividly illustrates these theoretical propositions. Throughout the Gold Coast, the imposition of colonial rule coincided with a rapid appreciation in land values. Officials of the colonial state announced that they would uphold customary land tenure and delegated enforcement powers to the chiefs of the Colony’s many traditional states. These mandates established the framework within which indigenous actors battled one another to claim the now valuable resource by redefining property rights to land.

Under colonial rule, indigenous actors fought to “re-invent tradition”. They struggled to articulate a distributionally favourable version of customary land tenure and enforce it within the traditional state. Their efforts in conjunction with and in response pronouncements, determined whether-and which –property rights were enforced. Now to understand how these rights existed with in the Ga state we need to examine the origins of the Ga state.

The Origins of the Ga State

It is extraordinarily difficult to construct an image of the Ga state prior to colonial rule, both because the Ga have been in contact with the Europeans since the 17th century and because the traditional state structures have been profoundly changed by the institutions of indirect rule. Anthropologists believe that the Ga state was originally little more than a loose federation of independent republics, all united in military alliance. Most of these republics lie in the area now known as Accra. Each republic possessed a stool; but, in contrast to that of the neighbouring Akan states, the Ga stool was a symbol of military power, rather than a symbol of government. The stool’s occupant, the Ga Mantse, served as an honorary military leader and did not exercise any real political power.

Ga land tenure likewise differed from the Akan model. The Ga are generally believed to practice patrilineal inheritance, whereas for the Akan the system is matrilineal. Moreover, all Ga Land was vested in the lineages who first occupied the land, rather than in the stools.

According to Ga customary law, each member of the lineage can claim rights of usufruct over some portion of lineage land. If that person dies or cannot use the land productively, then the land that he or she had held, along with any improvements made upon it, ordinarily reverts to the lineage. Under some conditions, however, the family member might be allowed to claim the family land as personal property that he or she can sell or deed to others.

The management and allocation of lineage land are undertaken by that lineage’s principal members who are elected by all family members; and by a family head, elected by the principal members. The family head oversees the use of family lands. He or she decides who may use which tract of land, how the proceeds from the land will be distributed amongst family members, and how the land can be developed. The family head also decides when family member can claim private rights to family land, and when family land can be sold to non-members.

The imposition of colonial rule altered the institutions of the traditional state. In so doing, colonialism shaped the strategies that indigenous actors would adopt in their battle to claim economic and political resources. The passage of the Native Jurisdiction Ordinance in 1878 transformed the loose federation of Ga republics into a rigid hierarchy. The NJO divided the independent republics into 10 divisions; two divisions were further divided into a number of quarters, the divisions in Accra was known as Ga Mashie and outside Accra were known as leeward Ga.

Equally important, the NJO elevated the office of mantse, giving its occupant full authority over all other traditional offices. Each division was thus governed by a mantse, and the state as a whole was governed by the Ga Mantse, the paramount chief. With later ordinances, the individual mantsemei were empowered to forge state councils and native tribunals through which they issued statements of customary law and arbitrated local disputes.

These political changes were paralleled by extensive economic change. The Ga state encompassed Accra, a thriving urban centre. In conjunction with the Native Jurisdiction Ordinance, the British designated Accra the administrative capital of the Gold coast colony. The British decision caused the value of Ga land to increase. Ga land had long been valued as a site for commercial trade and some farming; but now, the land acquired additional value as the site for government buildings, residential construction and increased levels of the commercial (and later industrial) enterprise.

The commercialisation of Ga lands provoked an intense battle among indigenous actors to claim more exclusive rights to the land. Whoever secured such rights would garner considerable economic wealth: the rights-holder would receive the compensation payments made by colonial officials when the colonial government appropriated Ga land; and the rights holder would receive the profits from the private investment he or she made on surrounding land.

Colonial institutions propelled the battle to appropriate this new wealth into the traditional state. Ga residents – both elite and non elite sought to secure a favourable share of that wealth by re-inventing customary land tenure. Throughout the period of colonial rule, different groups would argue simultaneously that customary law invested ownership of all Ga lands in private individuals, extended families, divisional stools and paramount stool.

Ga residents sought to enforce their claims by reinventing the institutions of the traditional state. The Native Jurisdiction Ordinance transformed traditional institutions into repositories of political power. Whoever gained control over those institutions would be in a position to enforce his preferred version of customary land tenure.

The changes wrought by colonial rule ignited a prolonged battle to control the definition of tradition in the Ga state. The fluid situation we have over Ga lands in Accra now is as a direct result of these changes.

The Ga elite’s effort to enforce a family cantered definition of customary land tenure disinherited both the Ga chiefs and a substantial portion of the Ga citizenry. In 1921, representatives of this disadvantaged group (called Manbii) mobilized to articulate a different, more distributionally favourable definition of customary law. They failed in their efforts.

The descendants of the Reindorf family were prominent members of the Gold Coast elite. Family members aggressively pursued new economic opportunities and embraced the external trappings of western society, yet they maintained close and active ties to the traditional state from which they descended.

The Reindorf family’s response to the commercialization of land in the Ga state reflects the incentive structure created by the institutions of indirect rule. Given the British determination to uphold traditional institutions, and given the Africans’ fear that Europeans would purchase all land were it offered for sale, the Ga elites could not demand the privatization of land. Instead, the Ga elites sought to strengthen their rights over land (and thus further their economic pursuits) by reinventing tradition.

First, the members of the Reindorf family defended a version of customary law that vested all land in the extended family, rather than in the divisional or paramount stools. Second, the family members manipulated the family history so as to narrow the boundaries of the extended family and reduce the number of claimants to family land. Third, the Reindorfs struggled to enforce their preferred version of custom by re-inventing the institutions of the traditional state. They sought to gain control of over the Ga mantse, or paramount chief, because the Mantse had the authority to arbitrate all land disputes brought before the Ga Native Tribunal.

It is estimated that millions of hectares representing a substantial part of Ga lands were expropriated in freeholds by the Ga elite through their political power and wealth during the colonial period. In consequence men, women and children of the Ga mashie area of the Ga state were at independence technically landless.

The collapse of indirect rule and the transition to independent government altered the framework within which property rights were enforced.

In recent times land acquisition is governed by State lands act and according to the state lands act 1962 (act 125), any land – stool, family, private may be compulsorily acquired where the government considers it in the public interest. An executive instrument must be published specifying the site, land dimensions, and time of acquisition. The act is specifically aimed at extinguishing all prior interests and encumbrances on the land. Once applied, the only right remaining to previous holders is lump-sum compensation currently determined and processed by the land valuation board. Conflicts over claims of interest or disagreements over the level of compensation are to be taken to the state lands tribunal, whose decisions are appealable to the Court of Appeal.

In addition to the state lands act, section 7 of the administration of lands act, 1962, provides a facility by which the administration and management of stool land may be vested in the state in trust for the stool concerned. Looks good on paper but we all know that is not the practice especially in Accraover Ga lands. While conveyance of freehold title is permitted in the case of private land or freehold, there is some confusion over the transfer of family land. The Koforidua lands secretariat presently treats transfers of family lands as stool lands requiring a lease and concurrence as technically, under the existing constitution; private transfer of family land is illegal. The regional lands secretary in Koforidua mused that further court cases are likely to occur as a result of this confusion, with individuals desiring title to family lands suing the government. The body of law that governs land rights, land markets, lease terms, rental prices, compulsory land acquisitions for the public domain, and land registration relevant to the Accra peri-urban economy is in its own right impressive, yet not without weaknesses. Ambiguity over whether family lands are or are not to be treated along with stool lands under the general rules governing customary tenure are creating uncertainties regarding which rights are held, and which government provisions apply.

Based on further reconnaissance visits throughout the peri-urban area of Accra in 1993 and 1994, four contextual situations were observed that reflect varying degrees of tenure security or conflict associated with land access and transfers:

T1     Type I. Land transactions under customary tenure occur expeditiously and generally without serious disputes over land among households within the community. Communities widely disseminate the proceeds of land sales to residents through cash transfers, land allocations, or community improvements.

T2     Type II. Proceeds from land sales are not widely distributed to residents, but rather benefit the chief or other influential families in the community.

T3     Type III. Customary tenure systems exhibit conflict or stress; serious disputes are present or at risk between neighbouring or competing stools or families.

T4     Type IV. The central government through compulsory acquisition acquires stool or family land and allocates land to outsiders at subsidised prices. Rates of compensation negotiated between the government and the community, however, are subsequently not paid by the government causing resentment and welfare loss in the concerned community. Serious disputes arise between local authorities and central government.

T5     Type V. Community lands are registered, and the government plays a positive role in protecting the land rights of its citizens.

Four research sites have selected that exhibit to greater or less degrees one or more characteristic of the above typologies:

1     Gbawe and Amasaman (T1, T3, and T5). Gbawe village, located roughly 9 miles from Accra, represents the customary land tenure system at its best. Once a small village, it has now been entirely engulfed by the wave of residential settlement moving outward from Accra city. Village lands have been sold by the chief to outsiders investing in residential improvements. But unlike some chiefs in Accra city, the traditional authority has been using the “earnest” or “drink” money obtained in land transactions to make infrastructural improvements in the area and to help Gbawe residents. Amasaman is a medium-sized village located on the Accra-Nsawam road about 14 miles from Accra city and 7 miles north of Gbawe. Residential developments are emerging in the area, but the village is also a site of commercial pineapple production. Both sites in the Greater Accra region.

2     Ofankor (T2 and T4). The village of Ofankor is a site where the government has acquired a substantial portion of the village landholdings through administrative edict and allocates land for residential development. Ofankor is located just west of Nsawam/Kumasi road north of Accra.

3     Ashongman (t1, T4, and T5). In the Atomic Energy residential area, a tacit dispute has arisen between the government and a chief over the right to allocate residential land. These two areas are adjacent to each other in the northern suburbs of Accra.

Gbawe, in the far western suburbs of Accra, and Amasaman are located nearest to the urban Accra centre. Gbawe has already been entirely engulfed by the residential influx. Ashongman and Ofankor, both near Gbawe are suffering duress, the former from a poorly functioning customary land market, and the latter from state intervention in the control of land assets.

54 years on from independence, land sales in the peri-urban area of Accra; represent an important source of revenue for the community. Many millions of cedis are earned in some years depending on the number of plots sold. While constitutional provisions stipulate that a fixed percentage of ground rent collections are to be returned to the stool, no funds have been paid to the stool for some years now. The stool has asked for the funds on various occasions but has been informed that no money is available. Gbawe’s residents are unhappy with this, but communities generally feel helpless in challenging government.

Way forward

It is widely acknowledged amongst our cultural Diaspora that, while the land is of vital concern to almost everyone, it is also a highly sensitive subject and therefore, best left well alone by all but the most daring or, some would say the foolhardy. I think perhaps, now is the time to think in terms of a Citizens’ Constitutional Forum for tackling difficult issues like this in the interest of public education both for the actual and potential landlessness in the Ga traditional areas.

Land is a highly politicised in the way it is treated in the national debate, but it is too important a subject to just be left to the politicians. This is not to say that we should take it out of politics altogether because, at the end of the day, it is the politicians who have to decide on land policies, and after a long hard look, look at whether we should in fact run a workshop on land, I believe it is now time to take the bull by the horns and do so.

Time is of the utmost urgency, and we have set the discussion on this agenda this particular weekend. We should plan the workshop in such a way that it will include Ga chiefs and leaders, Ga members of parliament, Ga academics and most important of all Ga landowners, tenants, growers and agricultural workers and members of the business community (including private housing developers).  We should also consider the implications of land policy for the tourist industry.

A well-known American once said, “The life of the Nation is Secure only while the nation is Honest, Truthful and Virtuous”. I believe that this quotation applies as much to the land issue as it does to other issues of public policy, probably more so. We need to be honest with each other and with the nation if we are to develop sensible and sustainable land policies that add to the prosperity of the nation.

The land issue is fraught with serious stumbling blocks, which we must overcome in order to reach a solution for future generations. Firstly, we need to recognise that land is a divisive issue not only between communities but among indigenous Ga’s also. The distribution of productive land amongst indigenous Ga’s is uneven, and changing circumstances have placed significant pressure on those families that lack sufficient land to sustain a livelihood.

Secondly, we need to tackle the chronic lack of foresight and political will that undermine effective resolution of looming land problems. Absence of forward planning and consensus in the case of expiring leases is also a problem.

Land is an emotionally charged issue whose air of mystique acts as an impediment to rational discussion. While it would be naïve to think that you could take politics out of the land issue, politicians have been all too ready to perpetuate the prejudices of their constituencies, rather than articulate a clear vision that would take the nation forward as a whole.

Maybe we need as Gadangmes, to form a Ga Native Land Trust Board through which all land and land sales have to be registered.

The other major players will be the Chiefs. Their collective leadership will be critical in providing the impetus for goodwill and understanding that must necessarily accompany major changes to land policy. We must remind them that “those who desire to rule, says Aristotle, must first submit to be ruled”. The chiefs, too must submit themselves to discipline

We need to address a resettlement programme with more vigour and compassion. The unabated and haphazard expansion of squatter settlements in peri-urban Accra will, if not managed properly, inevitably lead to social tensions. It is no coincidence that this urban drift has accelerated at a time when infrastructure development in rural areas has been given low priority, and rural dwellers, particularly the young, have opted for education and employment opportunities in the larger centres.

Having looked at some of the dimensions of the current debate, I would like to suggest a few ideas of my own, not as radical as Ade will have you believe but as a way forward to formulating sensible policies on land.

1             If we must accept that we cannot remove politics and tribe from the debate, let us at least resolve to treat each other with a reasonable level of civility and goodwill. This should begin in my view with parliament which is responsible for setting the tone for the national debate, and which should therefore encourage thoughtful consideration of the issues at hand.

2             The constitution must be amended so that we are compelled to reach a consensus by a two thirds majority on Land issues. A bipartisan approach therefore becomes necessary.

3             Any changes to land policy should be fair and equitable to landowners and tenants alike and must take into account the broader national interest over the medium to long term Rather than expect a quick fix we need to address fundamental questions of land ownership and administration and do so within the overall objective of realising the productive potential of the land.

5             Every stakeholder is entitled to a voice in the process of consultation and negotiation, particularly landowners, tenants and Chiefs (council of chiefs).

6             Landowners must be in a position to make informed choices about the future development of land, based on sound and objective advice.

7             Policymakers need to determine and promote a national strategy for the revival of the rural sector. We need to take a significant leap forward in sustainable commercial production accompanied by necessary developments in infrastructure.

8             Last but not least NATIONALISATION OF ALL GHANA LANDS

By that I mean the abolition of freehold tenure is called for (i.e. the fee simple estate and the absolute proprietorship estate). This does not mean the abolition of individual tenure or ascertainable rights of access in land. Nor does it entail the nationalization of land as such (which would mean a communist type of ownership).

Since the freehold estates now existing in Accra are unlimited in scope and duration in favour of an individual proprietor, their abolition would mean the freeing of land from the shackles of both individual and chieftaincy caprice and pave the way for a dynamic redistribution of land in the future. Freehold title could then be replaced by a well-worked out system of leasehold title. This system will vest the government with greater control over all land in Ghana. It would allow the government through the instrumentality of law to suppress the quantum of interests in land (reduce the size of individual landholding) in favour of the redistributive and re-allocation needs of society. The structure of and normative content of this framework of land ownership is a matter suited for a more detailed and researched study.

Conclusion

Land is definitely life, more so in a third world country like ours. Any policies that would lead to the ejection of man from his source of life into a world of uncertainty and homelessness are intrinsically flawed and inherently dangerous. Ghana has followed some such policies. Land tenure reform in the direction of guaranteeing more universal access to land is, therefore, called for.

 

 

Article: Ade SAWYERR

Rexford Dodoo – Lecture given on 9th April 2011 at GaDangme Nikasemo Asafo

 

 

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