Custom, modernity, and stability of land rights in Ghana: An empirico-legal review

Abstract

Land in Ghana is mostly governed by customary tenure systems. The sole purpose is ensuring the egalitarian use of land resources to secure the welfare of customary families and individuals with common interest in land. However, a confluence of issues including obstinate national policies on land, globalization, and land grabbing, and changing socio-economic context, have synergistically altered the customary regimes with varied and complex consequences for rural land access and use rights. This paper through narrative literature review unpacks the legal regime for customary land governance on the one hand, and empirical studies on the other, to understand the extent of destabilization of the bundle of rights in Ghana’s property rights regime. This review shows the different bundles of rights examined have different levels of stability. Access and use rights remain the most stable, use, and withdrawal rights are under severe stress, while exclusion and alienation rights seek to strengthen chief authority over land. The trusteeship role of chiefs has been replaced by powers resembling absolute ownership, thereby tacitly supporting the alienability of land by chiefs, a development unintended by customary land governance relations.

Keywords:

• Customary land
• empirico-legal
• land governance
• custom, modernity, and stability
• land rights
• Ghana

1. Introduction

It is now an almost established and stylised fact that land is customarily owned in most parts of the African continent. The customary land governance systems have been generally and variously described as egalitarian, pro-poor, stable, and well-intentioned (K. S. Amanor, 2010; Obeng-Odoom, 2013) and helping provide equitable access to individuals and groups with common interest in land. However, significant challenges associated with the evolution and efficient functioning of customary land governance are emerging. As such, there is a plethora of academic works emanating mainly from neoliberal orthodoxy (de Soto, 2000; Singh & Huang, 2011) portraying communally held land resources as insecure, subject to abuse and incapable of responding to the market economy. The result of such analysis, coupled with the promise of prosperity associated with formal Western property rights systems, has led to the formalization of land in many parts of Africa (Bruce, 2006). While such reforms are taking place in many countries in the global South and East, African countries such as Kenya, Uganda, Ghana, and Rwanda, have been discussed as having embarked on some form of Western style land reforms in recent times, often with the aim of enhancing investments in land and natural resources (Bruce, 2006).

The concept of custom, from which customary is derived from, is used to refer to the values, practices, norms, and other ancestral expressions that underpin the moral structure of everyday life in a particular society (Demian, 2015). The location of custom is thereby understood as the location of the society to which it “belongs,” and in this respect, customary land governance as it relates to many parts of Africa, are communally owned lands, where members of a common ancestry group exercise rights over a piece of land obtained through early settlement or conquest (Yaro, 2010). Article 11 of the Constitution of the Republic of Ghana, 1992 identifies customary law as one of the laws of Ghana. Article 11 (3) states that “customary law means the rules of law which by custom are applicable to particular communities in Ghana”. The anthropological and legal constructs of custom as applied to land rights, mean the local knowledge, practices, and values that lend a structure to how land is accessed, used, or alienated in different communities across Ghana. Modernity on the other hand is often used in reference to “belief in the freedom of the human being—natural and inalienable” and the capacity of mankind to exercise control over nature (Wagner, 2012, p. 4). It is underpinned by principles of individual and collective self-determination and a more reasonable way of interaction between people. These principles are deemed universal and must be subscribed to by all of mankind as they are thought to permit the creation of functionally superior ways for organizing human life mainly through law, and market-driven and industrial production (Wagner, 2012). Applied to land governance, simplifying transactions in land through formalization and the market mechanism of demand and supply in support of large-scale commercial production constitutes modernity. This is what land reforms have sought to do in many parts of the global South and East (Bruce, 2006). Stability is also used to refer to the certainty, intensity, and duration with which an individual can exercise rights over a specific piece of land (Asaaga et al., 2020; Li and Shen, 2021). Together, certainty, intensity, and duration show the completeness of land rights, and the length of time an individual can use the land (Shang et al., 2021).

The concepts of custom, modernity, and stability of land rights construed together support the long-held view that customary land governance can result in ill-defined and insecure land rights which in turn discourage land users from investing to improve the quality of the land due to the uncertainty and risk of future expropriation associated with customarily held land (Fenske, 2011; Unruh, 2008). The result has been the growing formalization of land based on Western-style or so-called “modern” approaches, intending to achieve stability, in areas where hitherto rights over land were exercised customarily. The formalization of land in Africa has often assumed one of two modalities—the hierarchical model as in Sudan, Ethiopia, and Tanzania and/or the private model, as in Kenya and Botswana (Galaty, 2016; Lesorogol, 2008; Mwangi, 2016) although many other models have been experimented in many different contexts. However, wholesale imposition of Western property rights systems on African customary systems may either be unhelpful or unnecessary. Over the years, the relevance of Western-style systems for Africa in terms of assumptions, empirical support, and its various conceptions is seen to be problematic (Domeher & Abdulai, 2012; Sjaastad and Cousins, 2008; Chimhowu & Woodhouse, 2006) as they neglect the complex social tenure relationships that exist in a customary land tenure system (Barry & Augustinus, 2015). Meanwhile, some other studies have established the positive contributions of customary land governance systems to community development (Berry, 2013; Goodwin, 2013; Kea, 2010). This means that every tenure system has its own merits and demerits, making the imposition of one tenure system over the other unnecessary (Anaafo, 2013). Davy (2014) therefore argues that an efficient land tenure system is only attainable to the extent that each land use has its own “property fingerprint”.

The debate, therefore, needs to shift from which land tenure system is superior in terms of “benefits and burdens”, to examine the unique “fingerprints” or “influencers” of the different systems and their ability to evolve in response to the needs of both landowners, and land users/general public (Davy, 2014, p. 473; Anaafo, 2013, p. 424). This paper reviews the functioning of customary land systems in Ghana, based on decided cases on the one hand and the outcomes of some empirical studies on the other, to understand the extent of destabilization or stability of the bundle of rights in Ghana’s property rights regime. This brings a new dimension to the debates as Asaaga et al. (2020) observed that the discussion on the nexus between land tenure security and investments in land has overlooked the role of the legal dimension in shaping rights to land. While the bundle of rights metaphor has been criticized as a “bare bones metaphor”, because it fails to take into consideration the complex social tenure relationships that exist in a customary land tenure system (Barry & Augustinus, 2015), it remains the best way to unpack the issues under consideration as these bundles of rights are those socially and legally recognizable and also enforceable by external authorities. Other socially recognizable rights such as wills, trusts, adverse possession, customary tenancies can be subsumed under any of those larger bundles. In terms of the legal review, the study seeks to understand the principles behind various decided cases and how they help illuminate our understanding of the evolution of customary land governance systems. The review of empirical studies examines the findings of various studies on the functioning of customary land governance systems to understand the on-the-ground experiences and practices. This empirico-legal review will help deepen our understanding of the functioning of customary land governance systems in a more contextualized way and contribute to the broader body of scientific literature on the subject matter.

This paper is divided into five main sections. Following the introduction is an examination of the models of customary land governance and the historical evolution of customary land governance practices in Ghana. This is immediately followed by the methods that were used to undertake the review. Section four discusses the influence of domestic and global processes on customary land governance, further exploring the functioning of the customary land governance systems, in respect of the bundles of rights available to various land users to determine whether they are stable or otherwise, leading to a conclusion.

2. Models of customary land governance

Customary land governance systems are socio-political and culturally embedded systems for managing land and resources for the benefit of the customary land-owning group (Pomevor, 2014). These are predominantly practiced in Africa but also in Latin America and Asia where they are generally discussed as Indigenous land governance systems (Inman, 2016; Perera, 2009; Tidwell & Zellen, 2015). It is estimated that nearly 90% of land in Africa is held under customary land governance with access negotiated through customary arrangements (Chimhowu & Woodhouse, 2006). Custom symbolizes the “traditional wisdom, the creative practical knowledge” handed down from generations through cultural norms, values, beliefs, customs, and practice to help deal with societal problems (Agatha, 2016, p. 1). Characteristically, customary land governance systems vest land rights in lineage leadership, usufruct rights allow individuals to access land as members of the lineage, land is inalienable and thereby allowing for easy access by poor members of the lineage to land (Chimhowu & Woodhouse, 2006). It is argued that the inherent character of customary land systems makes them an outdated obstacle to progress as they are insecure, unstable, and at variance with modern principles of land governance (Capps, 2018). Over the years, efforts have been made in different countries to legally integrate customary and Indigenous land governance systems with modern institutions of land governance. These efforts have often taken different forms. Fitzpatrick (2005) classifies these emerging land governance systems under four main categories—a minimalist approach, the agency method, group incorporation, and land boards. It is, however, possible to have a combination of these different systems working together within a nation state.

The most basic of these systems is the minimalist approach to the recognition of customary land governance systems. It is a system where the state simply recognizes customary rights to land as they exist within and between different ethnic groups (Fitzpatrick, 2005; Knight, 2010). Minimalists systems result in the recognition and description of certain areas of land as being under customary ownership. The state’s role in the management of customary land resources under this system is limited to the settlement of boundary disputes. All other issues regarding management of land resources and resolution of conflicts over access and use of land are juridically under customary institutions (Ankersen & Barnes, 2002; Fitzpatrick, 2005). Minimalist systems of customary land recognition exist in Ecuador, Columbia, and Panama (Plant & Hvalkof, 2001), where demarcation and enforcement of boundaries are the responsibility of the state with the support of the groups themselves, while all other management issues are left to the groups to determine. Within Africa, Mozambique is the closest example. Its Lei de Terras (Fitzpatrick, 2005) decrees de jure rights over land used by someone for 10 years or more and in good faith. It also allows for community lands to be registered as a whole (Knight, 2010; Tanner, 2002).

The second approach to the legal recognition of customary land governance systems is the agency method. This system simply requires that the state identifies particular individuals to act as the representatives of the customary groups. It was popular across British colonies in Africa, a common example being the Registered Land Act, 1965 for the then Federal Territory of Lagos. This Act enabled individual purchasers of land to deal directly with family representatives as though they were the rightful owners of the land. Any disputes arising within the family in relation to such a sale could not affect the validity of the sale (Fitzpatrick, 2005). A similar arrangement was made in the Solomon Islands, where the 1968 Land and Titles Ordinance required customary groups to name five trustees to hold legal title to land on behalf of the larger group (Larmour, 1986). In more recent times, Anaafo (2013) argues that the land reforms of Ghana that recognize the authority of Chiefs, Tendambas (First Settler) and clan and family heads to set up customary land secretariats and represent the larger customary group on land-related issues, mirrors the agency approach. The agency method is generally simple, as it allows individual land purchasers to deal directly with one person instead of multiple individuals. The state is also able to easily deal directly with the agent to resolve disputes, should they emerge. Its main disadvantage, however, is that agents cannot be fully trusted to represent the interest of the larger group bona fide (Fitzpatrick, 2005).

Group incorporation is an arrangement allowing principals and agents to combine through an incorporated legal entity. It is seen as the best institutional method for reducing agency risk, enhancing certainty, and minimizing the potential for exploitation. In its simplest form, a corporate body usually grants a traditional or ethnic group formal legal identity, thereby enabling the group to willingly and freely enter into any legal transactions on land (Fitzpatrick, 2005). Papua New Guinea’s Land Group Incorporation Act 1974 and South Africa’s Communal Property Associations Act 1996 both enable groups to incorporate their lands. In both instances, groups can incorporate as formal legal entities and engage directly in the acquisition, holding, and management of land in accordance with some constitutional provisions. The main advantage of this system is that it allows for disputes to be resolved through constitutionally mandated structures such as the courts, drawing on the constitutional and statutory provisions governing them.

The last approach also commonly used to give legal recognition to customary land governance systems is the establishment of decentralized land boards. Botswana represents the best-known example of this form of arrangement (Knight, 2010; Quan, 2000). Botswana through the Tribal Lands Act (1968) transferred authority over land from tribal chiefs to district and sub-district land boards. The composition of these land boards included both customary leaders and state officials (Knight, 2010). The land boards acted as fiduciaries, holding the title over land in trust for the chiefs and tribesmen. Their mandate encompassed the allocation of land within their jurisdiction, settlement of land-related disputes, implementation of policies to guide land use planning and collection of leasehold rents. Similarly, the Land Act of 1979 of Lesotho allows for rural lands to be administered by decentralized land committees. The land boards approach to the legal recognition of customary land governance systems is associated with higher levels of tenure security. Its main weakness, however, is that there are usually issues of institutional capacity of the decentralized boards to effectively deliver on their mandate (Quan, 2000).

3. Review of historical land governance practices

Ghana’s customary land governance systems have evolved over a period of time in a manner reminiscent of one form or the other of the models identified and discussed in the previous section. In Ghana, the prevailing customary land governance systems are the result of various developments from pre-colonial times to date. Traditionally, two forms of practices shaped land governance in Ghana, depending on whether a particular community was characterized as centralized or acephalous. While the centralized communities had some form of centralized governance structure with authority embodied in a chieftain, the acephalous communities did not have any such centralized governance structures (Sumbo, 2022; Yaro, 2012). In both centralized and acephalous communities, however, rights to land are established through conquest and early settlement (Yaro, 2012). Therefore, the customary land governance systems unique to different ethnic groups are an interplay between socio-political organization of communities, ethno-historical developments, wars, and incorporation as well as post-colonial developments in tree crop cultivation, commercial agriculture, timber, and mineral resources exploitation, and more recently, urbanization (Fiadzigbey, 2006). A brief review of the precolonial through to current customary land governance practices is provided in this section. In order to situate and contextualize the discussion, the Gold Coast and Ghana are used interchangeably to refer to Ghana as it currently exists.

Prior to colonization, the Gold Coast was made up of a number of independent subsistence-based states whose customs and practices reflected the social, cultural, and political mores of the people. The prevailing land governance systems were mainly organized around the traditional structure of the state with chiefs, clan, and family heads playing the role of fiduciaries. The main defining characteristic of land under the pre-colonial nation state was its sacredness (Anaafo, 2013, 2017; Odoom, 2016).

In Colonial Ghana, the British colonizers, saw customary land governance built around collective land ownership and shifting cultivation as an impediment to their interest in commercial agricultural production and the exploitation of timber and mineral resources (Aryeetey, 2007), resulting in efforts to modify the system. One of the earliest intrusions of the colonizers into customary land governance was an attempt to confiscate all fallow lands under the pretext that they had no specific owners. This initial attempt was rejected by the natives, who formed the Aborigines Rights Protection Society to defend and protect customary land (Obeng-Odoom, 2013). The second attempt sought to boost the development of capitalists’ markets and enhance trade in land and other resources through the policy of indirect rule (Obeng-Odoom, 2016). This system allowed the British to rule the colony through customary chiefs who were the custodians of the land. This allowed the colonizers to endorse “chieftain account of customary land law” which could contradict the customary land law known to the people (Obeng-Odoom, 2016, p. 665).

The post-independence period came with the promulgation of several pieces of legislation seeking to bolster the state’s power of eminent domain. These included the State Lands Act, 1962 (Act 125) as amended, the Land (Statutory Way leaves) Act, 1963, (Act 186), State Property and Contracts, Act, 1960 (CA 6), the Administration of Lands Act, 1962 (Act 123) and the Public Conveyancing Act, 1965 (Act 302) (Larbi, 2008). These laws sought to assert state control and administration over customarily held lands, while addressing the contradictions that resulted from modifications to customary land governance by the colonial powers. During this period, the new administration saw the institution of chieftaincy as a threat to effective governance and then initiated measures to weaken the chiefs’ financial base—the source of their power. Aryeetey (2007) also observes that the period immediately preceding independence, when Kwame Nkrumah was the leader of Government Business and Prime Minister was characterized by the promulgation of legislation such as the Local Government Ordinance 1951; the State Council (Ashanti) Ordinance No. 4, 1952; the State Council (Northern Territories) Ordinance No. 5, 1952; and the State Council (Colony and Southern Togoland) Ordinance No. 8, 1952 in an effort to weaken the chieftaincy institution. The combined effect of these pieces of legislation was the transfer of the management of stool lands (lands under the customary allodium of chiefs) and stool revenues—the source of financial power of the chiefs—from the local courts of chiefs to newly established local councils (Local Government Units).

Currently, the Government of Ghana maintains the need to reform customary land governance, to improve efficiency and productivity as a priority issue (Anaafo, 2015). The main reasons behind the government’s unflinching desire for reform are the widening rural poverty and inequality, poor agricultural performance and the slow and decreasing levels of economic performance of farming systems based on customary tenure (Economic Commission for Africa, 2004; The World Bank, 2013). Since 2002 the Government of Ghana has been implementing a Land Administration Project (LAP) based on the recommendations of the formulated National Land Policy of 1999. Recent empirical reviews (Anaafo, 2013; Blotcher, 2006; Schoneveld & German, 2013) have labelled the efforts of the NLP through LAP I and II as revisionist, and reconstituting customary land governance systems by legitimizing in chiefs the powers unintended by customary land governance systems. Obviously, Ghana’s customary land governance system has evolved from a minimalist approach under colonial and the immediate post-colonial administration to more of an agency model in recent times.

4. Study methods

This study mainly undertook literature and PDF Search based on specific search terms such as “the concept of custom”, “the concept of modernity”, “the concept of stability of land rights” “custom, modernity and stability of African customary systems”, “customary land governance” “land rights” “changing land rights in Ghana” “local and global influences on land governance” among others (Anaafo et al., 2021). Decided cases were initially sourced mainly from textbooks on land law in Ghana. Further, the Ghana Law Finder an electronic system that contains in great detail law reports on all cases that have been decided in the Superior Courts of Ghana was also relied on. Searches were made by either entering the title of the cases as found in textbooks into the Ghana Law Finder while in some instances by the use of the terms such as “customary land disputes”, customary land rights”, “title to land” among others. The cases were read and the principles elucidated in the holdings were summarized and included in the analyses and discussion.

Cronin et al. (2008) step by step style to classical literature review was applied. The approach entails an initial review of documents relevant to the research; selection of extant documents and literature for analysis; and subjecting the documents and literature to analysis. In a nutshell, the research involved the initial identification of relevant research topics and followed by the formulation of parameters based on the research topics. The identified topics were subsequently sorted and comparison of the data undertaken for a detailed understanding of the issues (Anaafo et al., 2021).

The reviewed literature was categorized under the identified bundle of land rights pertaining in many Ghanaian communities and contrasted with traditional property rights doctrines such as customary tenancies and usufructuary rights. As an empirico-legal study, the study focused on how emerging land governance or modernity for that matter, and land use processes impact on the stability or otherwise of the bundle of land rights identified, including, access, use/withdrawal, management, exclusion, and alienation. The empirical analyses were undertaken together with a review of historically decided cases from different historical periods. While such analyses helped us understand the evolution of land rights in Ghana, there is also the potential for contradiction among decided cases and changes in precedents over time, thus representing a limitation of the study method. This study focuses exclusively on Ghana and therefore limits the possibility of generalizing the findings to countries that exhibit similar land governance systems in Africa or elsewhere. Similar studies in other countries may help in our understanding and comparison of the stability of customary land rights in different world regions.

5. Results and discussion

5.1. Influence of domestic and global processes on customary land governance in Ghana

This section discusses the particularities and features of Ghana’s customary land governance, subsequently delving into how domestic and global processes are influenced by, or influencing the governance systems. The basis of most land holding in Ghana is customary land law. Customary land governance comprises the multiplicity of interests and rights held by customary institutions pyramiding towards chiefs and tendambas represented by stools and skins, to clan and family heads as well as individual usufructuaries (E. F. Boamah & Walker, 2017; K. Amanor, 2008). The Land Act, 2020 (Act 1036) identifies the main interests in Land in Ghana as including allodial title, customary law freehold, common law freehold, usufructuary interest, leasehold interest, and customary tenancy. According to Act 1036, allodial title is the highest interest in land; customary law freehold is an interest which arises from a transaction under customary law; common law freehold arises from a transaction to which the rules of law, generally known as common law, are applicable; usufruct is an interest in land, which is acquired in the exercise of an inherent right by a subject or a member of a stool or skin, or family or clan which holds the allodial title; leasehold interest is an interest in land for a duration which is certain or capable of being ascertained; and a customary tenancy is an interest in land which is created by contract. These interests are peculiar to the parts of Ghana with centralized customary land governance with a ruler as the source of authority as opposed to those which are characteristically acephalous without governance structures (Sumbo, 2022). About 80% of land in Ghana comes directly under customary governance with the remaining 20% under statutory state ownership (Kasanga & Kotey, 2001), creating a dual legal system of land governance in Ghana (Boamah and Walker, 2017). Customarily, near-maximal or allodial interests in land are vested in traditional chiefs/tendambas as customary fiduciaries. As such rights in customary land by members of the landowning communities are “secure, inalienable and inheritable” (Kasanga & Kotey, 2001, p. 13). Lower level chiefs such as divisional chiefs, sub-chiefs, clan, and family heads perform managerial functions, with members of the landowning groups exercising usufructuary rights to land (Anaafo, 2015).

The duality of land governance in Ghana, coupled with various domestic and global processes exert significant influences on the immediate and long-term stability of customary land governance systems and promotes rent-seeking behaviour on the part of customary and statutory fiduciaries. Stools and Skins who exercise fiduciary power over land possess rule-making capacities, and can also induce or coerce compliance; but it is simultaneously set in a larger social matrix which can, and does, affect and invade it, sometimes at the invitation of persons inside it, sometimes at its own instance” (Moore, 1973, p. 720). As such the customary land governance institutions have over the years been involved in decisions over land that have tended to be unpopular with the general population. Boamah and Walker (2017) report of an instance where the customary norms and values of Akyem Abuakwa were invaded by colonial statutory authority, ostensibly at the invitation of the then chief.

The dual-governance system also empowers the state to expropriate land in the name of the public interests through the power of eminent domain. E. F. Boamah and Walker (2017) lament the extent to which the state promotes regulated and unregulated land market systems through the practice of acquiring lands for which it has no use for. Such lands are subsequently surreptitiously leased out to individuals with connections to state actors (Owusu, 2008), a situation often blamed on so-called “encroachment by public/government land officials” (Kasanga et al., 1996, p. 32). Governments interference in the land sector is deemed eleemosynary as it attempts to promote Foreign Direct Investments (FDI) in diverse sectors of the economy. Gillespie (2016) reports of an instance where the state has had to intervene to acquire about 40% of the land compulsorily for real estate development in the colonial and post-colonial periods.

These pieces of evidence show that the fiduciary roles of the state and the customary land governance institutions have been redefined to some kind of outright ownership, thereby promoting rent-seeking behaviour. Clothed with near-maximal interests and coupled with rising land values, spurred by various socio-economic activities customary fiduciaries have become easy conduits to accessing customarily held land, which hitherto were difficult to alienate. Gillespie (2020) mentions the boom in the real estate sector, the discovery and subsequent production of oil, gentrification, and speculative urban development and the liberalization of the land market as factors contributing to weaken customary land governance institutions. Wily (2011, p. 737) supports these assertions by indicating that the elites of the customary system take “disproportionate advantage of rent-seeking opportunities” whenever commercial opportunities of external nature arise. This, he argues, entails a practice whereby chiefs interpret trusteeship as outright ownership in order to secure for themselves the largest share of money paid by developers to acquire land for various purposes. Bugri and Yeboah (2017) support the emerging discourse on the stability of customary land rights by itemizing rapid population growth and urbanization, changing climatic conditions, compulsory state land acquisitions, land speculation, large-scale land acquisition for agriculture and other investments, small-scale mining and sand winning, oil discovery, oil drilling, and the local fishing industry as some of the factors influencing the stability of customary land governance systems.

Conclusively, various natural, domestic, and international issues affecting the demand for land contributing to destabilize customary land governance systems and rights to land. Principally, however, the dual-land governance system, which vests customary and statutory fiduciary powers in chiefs/tendambas and the state, respectively, appears to be the most powerful destabilizing factor. Fiduciary powers have been redefined in a manner that empowers the chief/tendambas and state actors to pursue individual interests on customary or vested lands. This customary arrangement is similar to that discussed by Fitzpatrick (2005) as the agency model of customary land governance.

6. Stability of customary land rights in Ghana

Customary institutions will remain a dominant feature of the land governance system of Ghana, at least within the foreseeable future. However, their responsiveness to the needs of members from landowning groups has been called into question in the wake of commodification, commercial agriculture, urban expansion, and mineral exploitation. This section discusses the performance of the customary land governance systems of Ghana in the wake of these developments, vis-à-vis the bundles of rights of members of the land-owning groups. The bundles of rights examined in this discussion are the rights to access, withdraw/use, manage, exclude, and alienate land resources (Schlager & Ostrom, 1992). This will be done by reviewing the findings of other empirical studies already carried out on the subject. The review of empirical studies is carried out in tandem with a review of the legal regime as it has evolved over time as a way of contextualizing the discussion.

These bundles of rights are defined by specific rules. Critically, management, exclusion, and alienation rights are termed decision-making rights, because they enable the rights holder to define the rules, procedures, and standards pertaining to other rights, including who has rights to access and/or how a particular resource may be harvested (Schlager & Ostrom, 1992). Because these bundles of rights involve rule making, they are crucial for allowing rights holders to adjust to changing conditions affecting land rights (Larson et al., 2010).

Access rights allow rights holders to enter a piece of land solely, while withdrawal rights enable the holder to extract particular resources from the land so accessed. Management rights are similar to withdrawal rights although they differ in the level of decision-making power. Withdrawal rights only enable rights holders to harvest particular resources from a piece of land within defined rules and nothing more, management rights extend beyond withdrawal to include a determination of when, how, or what resource use should take place in the future. Management rights also enable rights holders to exercise control over others who share withdrawal rights. Exclusion rights allow rights holders the power to exclude others and outsiders who fail to comply with management rules. Rights to alienate enables the right holder to relinquish their interest as well as the interest of other rights holders in a piece of land or resource to another person or entity (Larson et al., 2010). Table 1 provides more insights about the nature and features of these different rights.

Table 1. Features of the bundles of land rights

Bundles of Rights	Features	Remarks	Right holders
Access Rights	Limited to access only Available to all rights holders as well as outsiders	Most basic right	General public
Withdrawal/Use Rights	Right to access Right to withdraw resources from the land Available to individuals with management, exclusion, and alienation rights Perpetual and inheritable by members of landowning groups	Governed by rules and standards set by holders of management rights	Usufructuary holders, other members of the landowning group, tenants, lessees
Management Rights	Right to access and withdraw resources Formulate rules, procedures, and standards for the use of a resource Exercised by members of the landowning family – divisible	Have the power to determine internal use patterns of the resource based on the rules and standards set	Usufructuary holders, head of family, tenants, lessees
Exclusion rights	Right to access, use, and manage Right to exclude outsiders who flout management rules Exercised by individual title holders, clan, and family heads		Usufructuary holders, head of family, tenants, leasehold right/interest
Alienation rights	Right to exclude, manage, use, and access Most stable right Right to transfer interest in land Exercised by individual title holders, Chiefs and Tendambas	Allodial title holder	Stools/Skins, clans, families and the state

Source: Compiled by Authors (2020) based on Anaafo (2013)

6.1. Rights of access

Access rights are the most basic of all the rights available to members of the land-owning group as well as to the general public. Access rights are rights to enter into an area of land, exclusively for the purpose of entry (Larson et al., 2010). Currently, individuals have no significant challenge accessing land of any kind, provided there is no motive beyond access (Anaafo, 2013; Yaro, 2010). In some communities across Ghana, some farmlands cannot be accessed on specific days of the week. This is purely in respect of cultural and religious beliefs and are not efforts to deprive members of the public access to such lands. While there can be barriers to entry into lands that have been privately acquired, these are outside the scope of this paper. It must also be acknowledged that mere entry to any vacant land cannot translate into a right of ownership, or any other kind of right as these are not ownerless lands. In the recent case of Bimpong v Bawuah (1991)2 GLR 20 C.A, the courts in Ghana affirmed the right of the general public to access land as follows:

In this country, land might for generations be in the occupation of persons who were not owners but who might have rights of occupation as licensees or customary tenants or under other conditions known to customary law, the reversion nevertheless being in the owner. And the owners were willing to allow such occupation so long as the occupier did not make any adverse claims to the land. Hence, the mere occupation of land for long periods was not conclusive evidence of ownership; and it was therefore essential that the specific nature and origin of the tenure of occupiers of land should be determined in all cases.

While land may lie fallow and be accessible to the general public, it does not connote the absence of an owner. As far back as 1913, the courts pronounced on, and determined the nature of title to vacant lands. In the case of Ofori Atta v. Atta Fua (1913) D. & F.C. 11–16, 65, where the jurisdiction of the court was invoked on the question of ownerless land, it was held that:

These lands being uninhabited lands situated between two paramount stools would according to native law and custom accrete to the paramount stools and the question of boundary between the two paramount stools would be one in respect of adjoining lands.

The simplest understanding of this decision by the court is that, there is no such thing as ownerless land in Ghana, because according to native law, every portion of land must be owned by one customary group or the other. Article 267 (1) of the Constitution of the Republic of Ghana now clearly states that “all stool land in Ghana shall vest in the appropriate stool on behalf of, and in trust for the subjects of the stool in accordance with customary law and usage”. Similarly, in the case of Ababio v. Kanga [(1932) 1 W.A.C.A. 253, it was held that:

Now in the Gold Coast there is no land without an owner, all vacant lands being attached to the nearest stool in which they may be said to vest for the community represented by that particular stool.

Generally, members of the public have unfettered access to vacant land. Access rights, therefore, remain very stable. However, any attempt to use, manage, exclude, or claim ownership without recourse to the customary land owners will result in litigation of the kind discussed above.

6.2. Rights to use and/or manage

Use or withdrawal rights constitute the second level of rights available to group landowners and the general public, based on different kinds of arrangements. Use, or withdrawal, rights refer to the right to obtain resources, such as timber, firewood, or other forest products, and remove them from the forest (Larson et al., 2010). Members of the land-owning group usually have unlimited access to the group, family, or clan land for all kinds of uses, subject only to restrictions from the clan or family head (Blotcher, 2006). Members of the land-owning group typically have usufructuary rights, which are perpetual and inheritable, although the land cannot be alienated without the consent of the family or clan head (Anaafo, 2015; Blotcher, 2006; Sarpong, 1999). In the case of Kwami v Quaynor (1959) GLR 269 it was held that land alienated by the Osu Mantse without the prior consent of the head and elders of that quarter was invalid. A similar holding was made in the case of Akwei and Others v Awuletey and Others (1960) GLR 231. Other members of the general public can obtain right to use land through various means. Anaafo (2015) observes that these rights have undergone changes, starting from grants, through to share-cropping arrangements and most recently through land rentals or outright purchases. Increasingly, commercial transactions have become the main medium by which access to land for use by non-members of the land-owning group can be procured. Schoneveld and German (2013) reports for instance that between 2005 and 2013 over 2 million hectares of lands across Ghana were sold out to investors. In that vein, German et al. (2013) lament the extent to which customary lands have become susceptible to expropriation by capitalist interest.

Therefore, while use rights remain fairly stable and available to the generality of the population, the arrangements under which individuals can access and use land are undergoing changes with significant implications for the poor and long-term consequences for members of the land-owning groups. Growing commercial pressures, coupled with the rent-seeking behaviour of allodial title holders combine to deprive ordinary members of society access to the use of their common heritage (Anaafo, 2015; F. Boamah, 2014). Obeng-Odoom (2016) indicates that some chiefs and allodial titleholders perceive customary land, which ordinarily belongs to the entire community, as royal lands, and therefore gleefully expropriate such lands for private gain. While use is not currently much of a problem, the rate at which lands are being alienated can have long-term consequences for use rights for the various categories of land users, including members of the land-owning groups.

Management rights on the other hand refer to “the right to regulate internal use patterns or transform the resource” (Agrawal & Ostrom, 2001, p. 489), which can include tree planting, timber management, or conversion to agriculture. Immediately after independence, the Administration of Lands Act 1962 (Act 123) was enacted to deal with stool or skin¹ land administration and management. Section 1 of the Act vests the management of stool lands in the Minister. Section 7 confers power on the President to vest stool lands in itself in trust for a stool and act as a trustee in respect of any such vested land. Section 17 deals with stool land revenue collection and administration. Section 17 (1) of the Act provides that “all revenue from lands subject to this Act shall be collected by the Minister and for that purpose all rights to receive and all remedies to recover that revenue shall vest in him and, subject to the exercise of any power of delegation conferred by this Act, no other person shall have power to give a good discharge for any liability in respect of the revenue or exercise any such right or remedy”. Section 17 (2) provides that “revenue for the purposes of this Act includes all rents, dues, fees, royalties, revenues, levies, tributes and other payments, whether in the nature of income or capital from or in connection with lands subject to this Act”. Section 17 (4) also indicates that “any moneys in the Forests Improvement fund in excess of authorised expenses in connection with exploitation and silvicultural work shall be transferred from that Fund to the Stool Land Account”.

These provisions exclude traditional authorities from direct participation in the collection and administration of stool land revenue and appear to illuminate the communal character of the assets from which the revenues are derived. In terms of the internal use patterns as defined by Agrawal and Ostrom (2001), everyone exercising usufructuary rights over a piece of land can determine the use to which it should be put, except to erect permanent structures or cultivate permanent tree crops (Ubink, 2007). Even where such rights are secondary in nature and are under sharecropping arrangements, the secondary rights holder still exercises significant power over the use and management of the resource. In the case of Atta v. Esson [1978] 1 GLR 128, the court nullified a customary practice which allowed a landlord to enter onto agricultural land granted under customary tenancy and gather the fruits of economic trees on the basis that it was outdated. The judge in this particular case concluded that:

… no proposition would be more out of accord with the hopes and aspirations of Ghanaians today than that a landlord who has spent no effort whatsoever towards that end should enter and collect at will fruits of the labour of his tenant … we cannot imagine an arrangement more ruinous of agricultural enterprise, subversive of expansion and consequently prejudicial to national development than that.

The most recent position on sharecropping arrangements known as abunu (produce divided into two equal halves) and abusa (produce shared into three equal parts) is that courts should give effect to the arrangements entered into between contracting parties, unless where the contracts are determined to be unconscionable. This was espoused in the case of Lamptey alias Nkpa v Faniyie (1989–90)1 GLR 286 SC when the court held as follows:

A landlord would not admit a tenant-farmer on to his land in the country without first discussing and settling the terms and conditions of entry. Abunu and abusa were mere terms, i.e. names given to any arrangement between parties whereby in the case of abusa one side got one-third and the other got two-thirds of a subject matter; whilst in the case of abunu the subject matter was split equally between the parties. … There was no inflexible customary law or practice in agricultural tenancies so binding in its incidence that no one could contract out of it.

The courts are therefore more inclined to rule based on contractual agreements reached between the parties, a practice intended to support the commercialization of land resources. Indeed, Section 7 (a) of the Land Act 2020 (Act 1036) states that “customary tenancy is an interest in land which is created by contract”. The implication is that customary tenancy in Ghana now is an agreement for which the parties are at liberty to agree on their own, reasonable terms and conditions.

Principally, the law now gravitates more towards the position adopted by the state through the National Land Policy (Ministry of Lands and Natural Resources, 1999). Ubink and Amanor (2008) and Anaafo (2015) argue that the National Land Policy which has been implemented through the LAPs and the Customary Land Secretariats seeks to strengthen chiefly administration of land, liberalize the land market, and support the government’s agenda of commoditizing land to improve commercial agriculture and land-sector developments. The emerging concern, however, is that strengthening the position of customary fiduciaries in land alienation has the potential to create insecurity for customary usufructuaries. Such an approach also ignores the fact that land is not only seen and held as an economic resource but is also of sacred relevance to many customary landowning groups (K. S. Amanor, 2010). It can be deduced from the empirical and legal review that use and withdrawal rights are no longer as stable as they used to be. To exercise such rights, the law requires that the parties enter into contractual arrangements. The empirical evidence also shows that there is increasing commodification, the implication being that parties must contract to use land which is not already under usufructuary possession.

6.3. Right to exclude and/or alienate

Individual Ghanaians who possess private title can exercise the right to exclude others from entry and use as well as alienate their interest in land to other persons. This right is provided for by section 43(1) of the Land Title Registration Law, 1986 (PNDCL 152) which stipulates that:

Subject to subsections (2), (3) and (4) of this section and section 48 of this Law, the rights of a registered proprietor of land whether acquired on first registration or acquired subsequently for valuable consideration or by an order of a Court, shall be indefeasible and shall be held by the proprietor together with all privileges and appurtenances attaching thereto free from all other interests and claims whatsoever.

The legal position was affirmed by the recent case of GIHOC Refrigeration Household Ltd v Hanna Assi (2005–2008) SC GLR 686 where the court held that a respondent with title to a particular piece of land was the rightful owner of the said land. However, the right to exclude all others from the use of land customarily owned is only available to allodial titleholders who usually comprise clan and family heads, and chiefs. This is also the case with alienation of land which is vested in customary allodium (Agbosu, 2000), refer to the Bimpong v Bawuah supra.

Recent empirical studies (Anaafo, 2015; German et al., 2013; Schoneveld, 2017; Yaro, 2010) reveal a growing abuse of fiduciary powers vested in family and clan heads as well as chiefs—leading to the wanton sale of lands held in trust for members of the landowning group. Land alienations also happen without any form of consultations or consent of land users (Schoneveld, 2017). These issues are further compounded by the absence of rigorous checks and balances on customary fiduciaries, resulting in iniquitous and exploitative conduct in the land alienation processes. Yaro (2009) observes that these developments lead to a situation where the customary system in rural agrarian settings is crumbling as traditional access routes have been substituted by cash transactions. In the urban setting, customary land governance systems have collapsed in favour of commoditized systems due to increasing demand for land for housing, industrial, and commercial purposes (Yaro, 2010).

While there may remain pockets of efficiently functioning customary land governance systems (Obeng-Odoom, 2013), the current situation is leading to widespread land exclusion and alienation with consequences for future land access, use, and withdrawal for both members of landowning groups and other land users. Anaafo (2015) estimates that significant quantities of land in the Nkoranza area of Ghana have been alienated to corporate and private interests. Similarly, Tsikata and Yaro (2011) estimated that well over 1,000,000 ha of land have been acquired in different parts of Ghana mainly for the commercial cultivation of Mango, Jatropha, and Rice. The magnitude of the problem is further highlighted by Schoneveld and German (2013) who observed that investors have acquired about 2 million hectares of land across Ghana for various purposes. All these studies highlighted the roles played by the crumbling customary systems in promoting land alienation. These increasing rates of land sales show the weakening of the customary land governance institutions. The implication is that members of landowning communities will, sooner or later lose their rights to access and use their common patriarchy to various commercial and corporate interests, through the subtle or tacit approval of their customary leaders. Based on the empirical and legal evidence presented thus far, it can be concluded that the power to exclude and/or alienate land by the allodial title holders has been further strengthened. The implication is the wanton sales of land that is being observed.

7. Conclusions

The different bundles of rights examined have different levels of stability. Access and use rights remain the most stable, use, and withdrawal rights are under severe stress, while exclusion and alienation rights seek to strengthen chief authority over land. The study therefore shows that there is wanton land alienation by the customary fiduciaries, which enjoy the support of the increasingly liberalized policy and regulatory environment. These developments have the potential to undermine the efficiency of customary land governing institutions. Liberalization is the product of the policy regime which has the support of the legal regime. The policy intentions may appear pious as they seek to reduce the incidence of double sale of land, improve land investment, and protect private property. These goals are, however, only realizable to the extent that they provide a fair and equitable system for recognizing long established and communally held interests in land. The different models of customary land recognition discussed earlier in the paper can be examined carefully, in light of their merits and demerits with the purpose of adopting one which can help address the challenges affecting the efficient management customary land systems in Ghana.

This is critical for realizing a stable customary land governance regime. The analyses thus far show that until relatively recently, customary land rights for both members of the landowning groups and non-natives were secure, stable, and inheritable. However, the chieftaincy institution has become a convenient conduit for large-scale land transfers, a situation that has the potential of depriving customary usufructuaries’ their rights to land in the future. The reinterpretation and reconstitution of chiefly powers from one of fiduciaries to one resembling absolute ownership has potential to adversely impact rights to land. The fiduciary function of chiefs was intended to enable them mediate equitable land access for their subjects while the reinterpreted powers of chiefs fades into confiscation of ownership and ease of alienation, a practice unintended under customary land governance relations.

Disclosure statement

No potential conflict of interest was reported by the authors.

Additional information

Notes on contributors

David Anaafo

David Anaafo is a regional/urban planner and a Senior Lecturer in the Department of Planning and Sustainability of the University of Energy and Natural Resources. His research interests spans sustainable property and pro-poor land policy, inclusive decentralised planning and local governance and urban planning in mid-sized growth and transition cities and city/environment interactions in the Ghanaian and African context. As a practice-oriented planner, his research crosses disciplines to address development issues. He has several publications on pro-poor land policy, decentralisation, pro-poor development and climate change impacts on local communities.

Anthonia Ayamga

Anthonia Ayamga is a Development Planning Practioner. She works with the Ministry of Local Government, Rural Development and Decentralisation as a Senior Development Planning Officer in the Regional Economic Planning and Coordinating Unit of the Bono Regional Coordinating Council. Her main tasks include providing technical backstopping to local government authorities, undertaking monitoring and evaluation of governmental interventions and harmonising and coordinating regional development interventions. Anthonia is passionate about local economic development, gendered development and inclusive planning.

Paul Bata Domanban

Paul Bata Domanban is a Senior Lecturer in the Department of Development Studies, Simon Diedong Dombo University of Business and Integrated Development Studies (SDD-UBIDS), Ghana. He holds BA (Hons) in Economics (University of Cape Coast), MA Development Studies (University of Ghana, Legon) and PhD in Endogenous Development (University for Development Studies). He is also the Dean of Students of SDD-UBIDS. He has taught at the university level for the past 21 years. He has published academic articles in both local and international refereed journals. His research interests are in microfinance, poverty, and development.

Notes

1. Stool and Skins are the symbols of chiefly authority in Southern and Northern Ghana, respectively. While chiefs in Southern Ghana sit on Stool, their counterparts in the North sit on animal Skins.