Issues and Optins fr Imprved Land Sectr Gvernance in Ghana Applicatin f the Land Gvernance Assessment Framewrk Synthesis Reprt 2013 Jhn Tiah Bugri
Cntents 1 Intrductin...3 2 LGAF Methdlgy...4 3 Overview f Land Plicy Issues in Ghana...5 3.1 General Data and Infrmatin... 5 3.1.1 Ecnmy and gegraphy... 5 3.1.2 Gvernance system... 5 3.2 Land Issues and Land Plicy... 5 3.2.1 Tenure typlgy... 5 3.2.2 Histry and current status f land plicies... 7 3.2.3 Frmal and infrmal land management institutins... 8 4 Assessment f Land Gvernance...11 4.1 Legal and institutinal framewrk... 11 4.1.1 Cntinuum f rights... 11 4.1.2 Enfrcement f rights... 11 4.1.3 Mechanisms fr recgnitin f rights... 13 4.1.4 Restrictins n rights... 14 4.1.5 Clarity f institutinal mandates... 14 4.1.6 Equity and nndiscriminatin... 15 4.2 Land use planning, taxatin, and management... 16 4.2.1 Transparency f restrictins... 16 4.2.2 Efficiency in planning prcess... 17 4.2.3 Speed and predictability... 18 4.2.4 Transparency f valuatins... 18 4.2.5 Tax cllectin efficiency... 19 4.3 Management f Public Land... 19 4.3.1 Identificatin f public land... 19 4.3.2 Justificatin f exprpriatin... 21 4.3.3 Transparency f exprpriatin prcedures... 22 4.3.4 Allcatin f public land... 23 4.4 Public prvisin f land infrmatin... 24 1
4.4.1 Cmpleteness... 24 4.4.2 Reliability... 25 4.4.3 Cst-effectiveness, accessibility, and sustainability... 25 4.4.4 Transparency f service csts... 25 4.5 Dispute reslutin and cnflict management... 26 4.5.1 Assignment f Respnsibility fr Dispute Reslutin... 26 4.5.2 Pending cnflict level... 28 4.5.3 Large-scale Land Acquisitin... 28 5 Plicy Pririties...31 5.1 Institutinal and legal framewrk fr land gvernance... 31 5.2 Land use planning and taxatin... 31 5.3 Public land management... 32 5.4 Public prvisin f land infrmatin... 32 5.5 Dispute reslutin and cnflict management... 32 5.6 Large scale land acquisitins... 33 6 Cnclusin...34 2
1 Intrductin Given the agrarian nature f Ghana s ecnmy, land cntinues t be the main surce f livelihd fr the majrity f its peple. Gvernance f this key resurce faces numerus challenges. These challenges are generally lng-standing in nature, while at the same time evlving in character and intensity in view f new ecnmic, demgraphic, and envirnmental pressures n land. Mining and increasing interest in Ghana s ptential fr large-scale cmmercial agriculture are tw such surces f pressure. Rapid urban grwth is anther pressure pint, bth in terms f its implicatins fr adjining rural land and fr the increasingly urgent land use and management prblems that afflict Ghana s cities themselves. Thus, ver an eleven-mnth perid in 2011, the Land Gvernance Assessment Framewrk (LGAF) was deplyed by a team f Ghanaian experts in rder t develp a mre cmprehensive understanding f the challenges facing land gvernance in Ghana, and t identify cncrete pprtunities t address thse challenges. This chapter synthesizes and summarizes the key findings f the LGAF prcess and utlines prpsals fr mving frward. The next sectin explains the methdlgy f the LGAF, while the third sectin prvides backgrund infrmatin n Ghana and key issues in its land gvernance. The furth sectin presents the results f the Ghana LGAF panel discussins and validatin meetings. Part five ffers recmmendatins fr priritizing land plicy imprvements, and the final sectin cncludes. 3
2 LGAF Methdlgy The Land Gvernance Assessment Framewrk (LGAF) is a diagnstic tl that is implemented in a cllabrative manner at the lcal level in rder t benchmark land gvernance. This prcess helps t establish a cnsensus and pririty actins n (i) gaps in existing evidence; (ii) areas fr regulatry r institutinal change, pilting f new appraches, and interventins t imprve land gvernance n a brader scale; and (iii) criteria t assess the effectiveness f these measures. LGAF helps put in place a structure and prcess t systematically track prgress in imprving land gvernance ver time. The cre versin f the LGAF cnsists f 21 Land Gvernance Indicatrs (LGIs) cvering 80 dimensins f land gvernance, gruped int five brad thematic areas: 1. Legal and institutinal framewrk (LGI 1-6) 2. Land use planning, management, and taxatin (LGI 7-11) 3. Management f public land (LGI 12-15) 4. Public prvisin f land infrmatin (LGI 16-19) 5. Dispute reslutin and cnflict management (LGI 20-21) The LGAF als allws the inclusin f ptinal thematic mdules that may be relevant t a specific cuntry cntext. The Ghanaian LGAF prcess included a mdule n large-scale land acquisitin (LSLA), which cntains 16 additinal parameters. Each LGAF dimensin is rated n a scale frm A t D, with scring ptins based n internatinal best practice. The LGAF prcess was led by a Cuntry Crdinatr and a team f three additinal expert investigatrs with specialties in land ecnmy, land use planning, public land management, and land administratin. Fllwing LGAF guidelines, in July and August 2011 the Ghana team cnducted eight meetings at the reginal level t share their findings with panels f five t seven experts, including representatives frm each f the divisins f the Lands Cmmissin; the Twn and Cuntry Planning Department; District, Municipal, and Metrplitan Assemblies; and the Office f the Administratr f Stl Lands (OASL). Additinal panelists included prminent academics in land issues, private practitiners, media prfessinals, nn-gvernmental rganizatins representatives, civil sciety representatives, and members f Custmary Land Secretariats. Panel members were asked fr their wn preliminary ratings fr the LGIs, which were then discussed until the panel achieved cnsensus in the scring f each dimensin. The assessment scres and findings f these panel wrkshps were validated at a natinal wrkshp in Kumasi in Nvember 2011. Finally, a cncluding plicy dialgue meeting was held in Accra in February 2012 t discuss the plicy recmmendatins f the LGAF study with key plicy decisin-makers at the natinal level fr cnsensus n the plicy recmmendatins made and strategies fr their implementatin within the framewrk f the secnd phase f the Land Administratin Prject. 4
3 Overview f Land Plicy Issues in Ghana 3.1 General Data and Infrmatin 3.1.1 Ecnmy and gegraphy Ghana has a ppulatin f arund 24 millin peple, apprximately ne-third f whm reside in urban areas. The cuntry is ethnically diverse, with ver ne hundred dialects spken. Ghana is ne f the mst prsperus natins in sub-saharan Africa. GDP in 2012 std at almst US$ 41 millin, with a per capita GNI US$ 1,550. 1 In 2006, 28.5% f the ppulatin lived belw the natinal pverty line. Agriculture is the backbne f Ghana s ecnmy. It cntributes abut 36% f GDP and emplys apprximately 70% f the rural ppulatin. The cuntry is estimated t have 23 millin hectares f land area, f which 57% is cultivable. Hwever, there are cnsiderable reginal variatins bth in the nature f Ghana s land-base and the type f agricultural systems and ppulatin densities it supprts, frm the humid cca grwing regins f the suth west t the semi-arid savannah znes f the nrth. The cuntry als has significant reserves f gld, petrleum, and natural gas. 3.1.2 Gvernance system Ghana gained independence frm Britain in 1957. It was the first independent cuntry suth f the Sahara, and since independence, plitical pwer has changed between military and civilian regimes. There have been six successive natinal electins since the return t multi-party demcracy in 1992. The gvernment has three branches: the executive, led by the president and the Cuncil f State; a unicameral parliament, with representatives frm 275 single-member cnstituencies; and the judiciary, f which the highest curt is the Supreme Curt. The natin is divided int ten administrative regins, which are further sub-divided int 216 metrplitan, municipal, and district assemblies. 3.2 Land Issues and Land Plicy 3.2.1 Tenure typlgy Acrss the wide spectrum f varied custmary and state land systems, Ghanaian law grups interests in land int a number f brad categries, derived frm bth Ghanaian custmary and English cmmn law surces. Five general types f land tenure exist in Ghana: alldial title, custmary freehld, cmmn law freehld, leasehld, and custmary tenancies. 2 Annex 1: Tenure Typlgy further summarizes these tenure categries. 1 Wrld Bank Wrld Develpment Indicatrs, 2012. 2 da Rcha and Ldh (1995), Ollennu (1962), and Asante (1975). It shuld be emphasized that given the preeminence f custmary tenure, the specific attributes f each f these interests may vary significantly frm area t area, depending n the custmary systems within which they are embedded. In additin, all f these interests are 5
Alldial title. Alldial title essentially, abslute wnership is the highest interest capable f being held in land and is the title frm which all ther interests, custmary r cmmn law, derive. In sme traditinal areas, alldial title is vested in the cmmunity, presided ver by a traditinal authrity symblized by stls r skins. In thers areas, it may be held by clans, families, and (in limited cases) individuals. With respect t public land, the alldial title is vested in the state. Alldial title carries with it freedm t dispse f the land subject t the laws f the land. Hence alldial title is transferable, in the absence f any law t the cntrary. 3 In practice, hwever, there are significant limitatins n transfer in the custmary cntext, since alldial title is usually vested in the cmmunity. Definitins f a cmmunity may range frm a small grup f peple t whle tribes and twnships, and may cmprise the living, the dead, and thse yet unbrn. Hence, transactins in land generally invlve transfers f the derivative interests described belw. Custmary freehld. This is an interest in land held by subgrups and individuals wh are members f the cmmunity in which the alldial interest is vested. Custmary freehld may be acquired either implicitly thrugh the ccupatin and use f vacant land in the cmmunity r explicitly thrugh a grant frm the cmmunity. Custmary freehlds are held fr infinite duratin, and may be transferred t the successrs f the rights hlders. Cmmn law freehld. Cmmn law freehld is an express grant f land rights in accrdance with the rules f cmmn law. Its incidence is nt widespread; in fact, Article 267 (5) f the Cnstitutin frbids cmmn law freehld f stl land. In effect, this restrictin limits the transfer f cmmn law freehld t freigners. Leasehld. Althugh the rigins f leases are in cmmn law, leases may be granted frm alldial title, custmary freehld, r cmmn law freehld. Leases are created fr specific duratins; 99-year leases are the mst cmmn. Subleases are als permitted, except where expressly prhibited by cvenant. Custmary tenancies. Custmary tenancies are frms f sharecrpping agreements between freehlders r lessees f farmland and tenant-farmers. They may apply t land held under any frm f tenure: alldial, custmary, r cmmn law. Typically, a tenant-farmer agrees t give the landwner r landlrd a specified prtin f the farm prduce in exchange fr the use f the land and pssibly ther farm inputs. Cmmn sharing arrangements are ratis f 1:2 (knwn as abusa in Akan-speaking cmmunities) and 1:1 (knwn as abunu). In sme cntractual agreements, tenant-farmers may prvide mney r share the farm/land itself. 4 capable f c-existing in the same parcel f land, making the estimatin f tenure typlgy areas and ppulatins difficult. 3 da Rcha and Ldh 1995 4 Ruf 2009 6
3.2.2 Histry and current status f land plicies The distinguishing features f land tenure in Ghana are the clear legal recgnitin given t custmary tenure under Ghanaian law and the extent t which lands are still gverned under custmary cntrl. Currently, ver 80% f land is cnsidered custmarily wned. Mst f the rest is held by the state as the result f cmpulsry acquisitin ver the years. The histrical rigins f custmary tenure vary by regin, rted in the dual system f land administratin f the British clnial gvernment. The then-nrthern Territries (nw cmprising the Upper East, Upper West and Nrthern Regin) were administered as public lands, while lands in the rest f the cuntry were managed under traditinal plitical authrity. 5 This situatin persisted int the pst-clnial era, until the Cnstitutin f 1979 prclaimed the divesting f nrthern lands frm the state and their re-vesting in lcal traditinal wners. This decisin was reaffirmed in the 1992 Cnstitutin, which held that all lands in the Nrthern, Upper East and Upper West regins f Ghana were n lnger public lands. The histry f land use planning in Ghana similarly dates back t the clnial era. The current Twn and Cuntry Planning Act (Cap 84) was adpted in 1945. The Act created Twn and Cuntry Planning Bards and declared all reginal capitals and a gd number f twns as statutry planning areas, which meant that n use decisin culd be carried ut withut prir apprval frm the apprpriate Twn Planning Authrity. The 1992 Cnstitutin further set frth land rights and respnsibilities with prvisins that cnfirm the legal status f custmary rights, establish the fiduciary respnsibilities f traditinal authrities ver land under their cntrl, circumscribe the gvernment s pwer f cmpulsry acquisitin, and deal with a range f ther land-related matters. Hwever, it was nt until the end f the 1990s that a cmprehensive natinal plicy framewrk was put in place. The Natinal Land Plicy f 1999 was the result f a multi-year prcess f debate and research, invlving the identificatin and analysis f the majr prblems affecting land and the mapping ut f plicy cmmitments t address them. Many f the cnstraints and bstacles identified in the 1999 dcument are still an issue (see LGAF findings), including indeterminate bundaries f stl/skin lands, cmpulsry acquisitin f large tracts f land by the gvernment, inadequate tenure security, and a weak land administratin system. In respnse t these challenges, the plicy established numerus key bjectives, which include but are nt limited t facilitating equitable access t land; ensuring fair and timely cmpensatin fr exprpriated lands; curbing speculatin, encrachment, and racketeering; and building institutinal capacity fr land service delivery. The plicy als underscred the need t prmte cmmunity participatin in and public awareness f sustainable land management. Frm 2003 t 2011, with the supprt f dnrs, Ghana implemented Phase 1 f the Land Administratin Prject (LAP I), which was intended as a vehicle fr the attainment f the bjectives f the natinal land plicy. LAP I cmprised fur cmpnent areas: 5 Agbsu 1980 7
Harmnizatin f the land plicy and regulatry framewrk fr sustainable land administratin Institutinal refrm and develpment Imprvements in land titling, registratin, valuatin, and infrmatin systems Prject management, mnitring, and evaluatin Achievements under LAP I include the passage f the Lands Cmmissin Act, 2008 which restructured the land sectr agencies, the establishment f and supprt fr 37 Custmary Land Secretariats, pilt demarcatins f custmary land bundaries, and the cmmencement f inventries f state lands. In September 2011, LAP II was launched t build upn and expand the successes f LAP I in the areas f the legal framewrk, decentralizatin and service delivery, maps and spatial data, and human resurce develpment. 3.2.3 Frmal and infrmal land management institutins Framing Ghana s respnse t these challenges is a cmplex and ften unclear institutinal structure invlving multiple agencies and authrities wh hld sme respnsibility fr land management and administratin. This structure is lcated within a pluralistic land law framewrk that, while ntable amng African cuntries fr the strng legal recgnitin it gives t custmary land rights, is increasingly recgnized as in need f mdernizatin t imprve the cherence f land administratin and t prtect land rights against new surces f vulnerability. Custmary Land Management Institutins The nature f custmary land rights varies significantly acrss the cuntry, 6 althugh discussins f custmary wnership in Ghana ften refer t three brad categries f custmary land arrangements: skin land in the nrth, 7 stl land in the center and suth, and family land in scattered lcatins arund the suth and east. 8 A stl means the seat f a chief f an indigenus grup r cmmunity, which represents the surce f authrity f the chief. It is a symbl f unity and its respnsibilities devlve upn its living representatives: the chief and his cuncilrs (elders). Land wned by such a grup r cmmunity is referred t as stl land. 9 Acrss much f the nrth, land wnership is referred t as vesting in the skin as the symbl f traditinal authrity. In parts f the suth and east, custmary authrity may be lcated within smaller family units, as in the case f the Ewe, fr example. 6 Different levels f urbanizatin accunt fr sme f the differences in custmary tenure practices between nrth and suth Ghana. Traditinal land tenure practices in the nrth generally discurage the sale f land, while in the mre urbanized suth, custmary practices have evlved t reflect a grwing acceptance f land as a saleable cmmdity. Hwever, it is ften difficult t make reliable generalizatins abut custmary land relatins acrss different cmmunities, smetimes even within relatively small gegraphic areas. 7 In brad terms, Nrthern, Upper East, and Upper West Regins share similar ethnic, cultural, and eclgical cnditins, and a predminantly patrilineal inheritance system. Here, a mixture f chiefs and tendamba (earthpriests) ccupy the apex f the crprate tenure grup and exercise land gvernance respnsibilities in a fiduciary capacity (Bugri, 2007). 8 In regins ppularly referred t as the suth, matrilineal land inheritance patterns are mre cmmn, althugh here as well patrilineal inheritance is practiced by sme grups, such as the Ga in the Greater Accra Regin and Ewe f the Vlta. In different parts f the suth, land wnership may vest in stls as the symbl f a traditinal authrity presiding ver a relatively large area f land (see Asante-Ansng, 1978; Km, 1979; Asante, 1975). 9 Natinal Land Plicy, Ministry f Lands and Frestry, 1999 8
The cncept f custmary land secretariats (CLS) has lng been pursued by sme land wning authrities, including the Ashantene and the GbaweKwetei family land secretariats. The ptential benefit f rlling ut CLS t ther cmmunities was a central fcus f the 1999 Natinal Land Plicy. As a result, Gvernment f Ghana has been prmting the establishment f CLS under LAP, which aims t help interested traditinal authrities build capacity t develp transparent and accuntable land management systems. Under LAP I, CLS were established and/r strengthened in 37 stl, skin, and family areas. The CLS have taken varius frms, reflecting differences in the characteristics f land relatinships in each cmmunity and differing levels f interest and initiative frm participating traditinal authrities. In sme instances, CLS has aimed fr the systematic demarcatin and mapping f individual custmary parcels and the develpment f land recrds tailred t reflect the specific cnfiguratin f rights under lcal custmary law. It has aspired t the appintment f a permanent staff t serve as a first pint f entry fr utsiders interested in explring investment pprtunities, and t assist landhlders with transactins and with the necessary paperwrk shuld they chse t g ne step further and recrd their rights in the Land Registry r Lands Cmmissin (fr purpses f securing bank lans, fr example). In ther cases, CLS has taken a mre mdest frm, smetimes cnsisting f little mre than an incmplete list f landhlders n an Excel spreadsheet. In still ther instances, CLS pilts have failed t gain tractin at all. At the mment, CLS are in essence experiments in private intra-cmmunity land management; they have n frmal recgnitin under law, althugh it is expected that the Lands Bill being drafted with supprt frm LAP II will prvide sme srt f flexible legal framewrk ging frward. Further supprt t existing and new secretariats is envisaged under LAP II, under the leadership f the Office f the Administratr f Stl Lands (OASL). Frmal Land Management Institutins At the natinal level, the land sectr previusly suffered frm a prliferatin f agencies with verlapping mandates. In additin, there was a lack f clarity abut the relatinships amngst varius frmal land agencies, as well as between state agencies and custmary institutins. Thus streamlining and ratinalizing frmal land sectr institutins have been majr fcuses f the gvernment s effrts t implement the Natinal Land Plicy. With supprt frm LAP I, the Lands Cmmissin Act f 2008 brught tgether fur land sectr agencies namely, the Survey Department, Land Valuatin Bard, Land Title Registratin, and the Public and Vested Lands under the umbrella f the Natinal Lands Cmmissin. The Cmmissin is respnsible fr prviding cncurrence (r apprval) t the dispsitin f stl, skin, and private lands, prvided the develpment is cnsistent with the apprved planning schemes f the area. In additin, the Cmmissin is mandated t advise the gvernment, lcal authrities, and traditinal authrities n land plicy. Institutinal refrm at the central level has als been accmpanied by a fcus n decentralizatin f services, with the establishment f Reginal Lands Cmmissins in all ten regins f the cuntry. There are tw additinal key land sectr agencies that were nt included in the rerganized and expanded Lands Cmmissin. One, the Office f the Administratr f Stl Lands (OASL), is respnsible fr cllecting and distributing rents, ryalties, cmpensatin, and ther payments n 9
behalf f stl/skin lands, in accrdance with the 1992 Cnstitutin. The secnd, the Twn and Cuntry Planning Department under the Ministry f Envirnment and Science, is respnsible fr land use-planning and develpment. 10
4 Assessment f Land Gvernance 4.1 Legal and institutinal framewrk 4.1.1 Cntinuum f rights Recgnitin f a Cntinuum f Rights LGI # Indicatr A B C D 1 i Land tenure rights recgnitin in rural areas 1 ii Land tenure rights recgnitin in urban areas 1 iii Rural grup rights recgnitin 1 iv Urban grup rights recgnitin in infrmal areas 1 v Opprtunities fr tenure individualizatin Recgnitin f land tenure rights in bth rural and urban areas is high in Ghana, as bth are enshrined in the Cnstitutin and the Natinal Land Plicy dcument f 1999. Likewise, based n crprate law, cperative scieties may be frmed in bth rural and urban areas, and these grups may gain rights ver land as crprate entities, e.g. farmers cperative scieties. Cnversely, the land rights f squatters in urban areas are nt frmally recgnized. There have been numerus attempts t evict such grups frm infrmal settlements in the cuntry, as ccurred in the Sdm and Gmra settlement f Accra. Still, if squatters enjy undisturbed pssessin f the land fr 12 years, they can lay claims t legal wnership f the land, as nted in Sectin 4.1.3. Prcedures fr the frmalizatin f tenure rights are available, but mst members f the public are unaware f their existence. One restrictin n the prcess f frmalizatin invlves perpetual usufruct rights, which cannt be frmalized as such, but rather must be cnverted t a 99-year residential lease. 4.1.2 Enfrcement f rights Enfrcement f Rights LGI # Indicatr A B C D 2 i Surveying/mapping and registratin f claims n cmmunal r indigenus land 2 ii Registratin f individually held prperties in rural areas 2 iii Registratin f individually held prperties in urban areas 2 iv Wmen s rights are recgnized in practice by the frmal system (urban/rural) 2 v Cndminium regime that prvides fr apprpriate management f cmmn prperty 2 vi Cmpensatin due t land use changes The bundaries f lands held under alldial title are ften indeterminate, prviding a grwing surce f tensin in areas with increasing pressures n the land. Disputes ver bundaries are reprtedly increasing, which further affects the tenure security f thse hlding derivative rights 11
t the land in questin. This creates cnfusin amng lessees and utside investrs regarding with whm they shuld be dealing. The Natinal Land Plicy identified demarcatin f alldial bundaries as an essential step in ratinalizing the management f custmary land, and demarcatin and mapping schemes were pilted under LAP I. Hwever, these pilts had nly limited success due t the high expense f survey prcedures and apparently irreslvable disputes alng sme brders. Likewise, despite the presence f bth a deeds and title registratin system, frmal registratin f rights is extremely thin, especially in rural areas. The deeds system caters largely t urban users engaged in transactins, as well as t cmmercial lessees f rural custmary land. Title registratin has thus far nly been intrduced n a spradic basis in Accra and Kumasi. Varius effrts t rll it ut n a mre widespread, systematic basis mst recently under LAP have fallen far shrt f expectatins. In rural areas, it has been the subject f nly tw small pilts. T date, nly a few thusand parcels have been brught int the title registratin system ut f the pssible 15,000,000 parcels f land in the cuntry. The vast majrity f rural land rights are either subject t ral agreements r recrded ad hc in unregistered dcuments. There has been virtually n dcumentatin r frmal registratin f rights held by cmmunity members, including bth alldial title and custmary freehld. Mst f the transfers f agricultural land that have been registered are leases issued t peple frm utside the cmmunity. In urban areas, the dcumentatin f land rights is mre prevalent, thugh far frm cmplete, particularly in infrmal settlements. While there is an absence f reliable data n the percentage f registered urban land parcels, there is sufficient evidence t cnclude that under 50% f such parcels are registered (threshld fr LGAF scring). On the ne hand, urban land rights hlders have an incentive t register their prperties because f the prevalence f land disputes. On the ther, the absence f site plans in peri-urban lcatins, the csts f registratin, ignrance, and the fact that the rate f urbanizatin has utpaced planning have all perated t limit urban land registratin, especially given the weak institutinal capacity t deliver such services. With respect t the participatin f wmen in frmal registratin mechanisms, the Ministry f Justice (2003) reprts that frm a sample f 1440 title registratins between 1989-2002 in Accra, nly 25% f registratins were dne by wmen and less than 10% were dne jintly by men and wmen. Similarly, in the case f Kumasi, an available sample data f 201 title registratins fr 2008-2009 shwed that nly 23% were dne by wmen and less than 6% were jint registratins. In the case f deeds registratin, which is the mre widespread, it is estimated that registratins by wmen accunt fr less than 15% f the ttal. In aggregate terms, it is plausible t cnclude that land registered t wmen either individually r jintly is less than 15% (LGAF scring threshld). In terms f cmmn prperty, the panel nted that Ghana lacks any legislative framewrk fr the management f cndminiums. Cndminiums are springing up in the capital city as the need fr the ecnmical use f space increases, necessitating the passage f legislatin regulating cmmn prperty. 12
Mst f the situatins in which land use changes result in the lss f rights ccur in the cnversin f agricultural land t residential use in peri-urban areas. In these cases, mst usufruct farmers land rights are lst t real estate and ther prject develpers, with cmpensatin that des nt reflect market values. The chiefs in whse cmmunities these cnversins take place may simply emply their wn land surveyrs t demarcate the lands, prepare layuts, and chse t give a few plts as cmpensatin t use rights hlders. They then retain the bulk f the land t sell t develpers. Such circumstances d nt qualify as cmpulsry acquisitin, and therefre legal prvisins fr adequate, fair, and prmpt payment f cmpensatin d nt apply. In this respect, the chiefs act as thugh they hld prprietary land rights, when in fact they are nly custdians f the land held fr the enjyment f the cmmunity. Hwever, there is nt yet sufficient plitical will t challenge such actins, because f the pwerful psitins f the chiefs in Ghana. 4.1.3 Mechanisms fr recgnitin f rights Mechanisms fr Recgnitin f Rights LGI # Indicatr A B C D 3 i Use f nn-dcumentary frms f evidence t recgnize rights 3 ii Frmal recgnitin f lng-term, unchallenged pssessin 3 iii First-time registratin n demand is nt restricted by inability t pay frmal fees 3 iv First-time registratin des nt entail significant infrmal fees 3 v Frmalizatin f residential husing is feasible and affrdable 3 vi Efficient and transparent prcess t frmally recgnize lngterm unchallenged pssessin Nn-dcumentary frms f evidence may be used under the Statutry Declaratins Act f 1971. When a relevant declaratin is made in accrdance with the Act, it must be published in the media with a 30-day perid fr registering bjectins. In the absence f any bjectins, cmpensatin is payable t the claimants f such rights. Likewise, allcatin ntes f land frm chiefs, rent demand ntices, and receipts f earlier payments f grund rents are all cnsidered acceptable pieces f evidence fr cmpensatin claims. Ghanaian law des prvide fr the recgnitin f unchallenged pssessin f land fr a perid f 12 r mre years thrugh the frmal curt system. Hwever, this prcess is entirely alien t custmary law. Mrever, it is nt easy t initiate r t succeed in a claim. Even in cases where pssessin f the land is challenged and evictins are subsequently effected, the gvernment may end up paying sme frm f cmpensatin t thse affected, primarily fr plitical rather than legal reasns. Fr example, evictees might threaten t vte against the party in pwer during the subsequent electin. Other times, cmpensatin is paid n humanitarian grunds. The fees and csts incurred in spradic registratin include thse fr the title transfer frm, the prperty value assessment, the submissin f the applicatin, the publicatin f the transactin, and the issuance f the title certificate. Fr the typical urban prperty, these fees d nt exceed 2% f the prperty value. The fees fr deeds registratin are similar. Infrmal fees may als be incurred, particularly where clients attempt t facilitate the prcessing f their dcuments. Even 13
payments f frmal fees are nt always receipted, raising questins abut pssible revenue leakages. Indeed, public perceptin hlds that the land sectr agencies in Ghana are crrupt. Despite grwth in unplanned areas, especially in the urban and peri-urban parts f the cuntry, there are hardly any crrespnding attempts t frmalize infrmal husing. Few individuals attempt t frmalize their prperty pssessin and acquire dcumentatin. Thse that d are mstly peple wh require dcuments fr purpses such as bank lans. Frmalizatin is easier in rural areas than urban because f the need fr the prvisin f services and amenities in rapidly urbanizing areas. In additin, mst peple in need f regularizatin regard the rules fr ding s as unclear. 4.1.4 Restrictins n rights Restrictins n Rights LGI # Indicatr A B C D 4 i Restrictins n urban land use, wnership, and transferability 4 ii Restrictins n rural land use, wnership, and transferability Land use restrictins n zning and wnership are justified n the basis f public interests, even if they risk being seen as interventins in the land market (as in the case f the prvisin f public gds). The requirement that citizens pay grund rents is justified n the basis f landlrd-tenant relatinships. The prvisin f 50-year leases fr freign investrs is reasnable, and the restrictin n cmmn law freehld fr freigners (which applies in bth rural and urban areas) is justified by natinal svereignty. In rural areas, certain restrictins exist but enfrcement is weak. Althugh rent and price restrictins interfere with the free market, they may be smewhat justified as safeguards fr the vulnerable in sciety, such as wmen and the pr. Similarly, restrictins n land use planning are justified n the basis f rderly develpment. 4.1.5 Clarity f institutinal mandates Clarity f Mandates LGI # Indicatr A B C D 5 i Separatin f plicy frmulatin, implementatin, and arbitratin rles 5 ii Differentiated mandates acrss institutins 5 iii Differentiated respnsibilities acrss levels f gvernment 5 iv Infrmatin sharing acrss institutins Despite the achievements f LAP I in streamlining frmal land management institutins nted abve, the expected benefits f agency cnslidatin have been slw t materialize. In practice, cnslidatin has nt fully eliminated institutinal divides, turf battles, and functinal radblcks between previusly separate entities. Thus cnslidatin will cntinue t be the fcus f gvernment initiatives under LAP II. 14
Beynd these internal tensins, a number f verlaps in mandate persist. Fr example, bth the Twn and Cuntry Planning Department and the District Assemblies have been assigned a planning functin, and bth the Lands Cmmissin and OASL are engaged t sme degree in revenue cllectin. Mrever, it remains the case that public land agencies frequently enjy public mistrust, suffer frm capacity cnstraints, and ffer slw service delivery. Respnsibilities between the different levels f gvernment are clear, but minr verlaps still ccur, ften invlving plitical interference in perfrmance f functins such as cmpulsry acquisitin, cntrl f develpment, and land taxatin. Cmplicating the discussin f institutinal arrangements in the land sectr is the cntinued preeminence f alldial wnership. Fr many Ghanaians, particularly in rural areas, the mst imprtant and relevant institutin in terms f land relatins is the traditinal authrity itself, in the frm f the chief, traditinal cuncils, land allcatin cmmittees, and the like. Given that the lcus fr many land allcatin and land management decisins remain at the traditinal authrity, and given cncerns abut the accessibility, cst, and relevance f state land sectr agencies fr many segments f the custmary land sectr, increasing attentin has been directed in recent years t strengthening cmmunity-based land institutins. 4.1.6 Equity and nndiscriminatin Equity and Nn-Discriminatin in the Decisin-Making Prcess LGI # Indicatr A B C D 6 i Clear land plicy develped in a participatry manner 6 ii Meaningful incrpratin f equity gals 6 iii Cst f implementing plicy is estimated, matched with benefits, and adequately resurced 6 iv Regular public reprts indicating prgress in plicy implementatin As previusly nted, the Natinal Land Plicy dcument was the prduct f wide ranging cnsultatins between gvernment and all the majr stakehlders in land, particularly the traditinal authrities. Mrever, facilitating equitable access t land is the secnd plicy guideline f the Natinal Land Plicy, and prgress in many f the sub-areas related t this guideline was made under LAP I. Yet, the panel nted, mnitring and evaluatin f these activities was nt dne in any meaningful way. Capacity t deliver is still a prblem within the land services sectr, and enfrcement f plicies is yet t be achieved. Fr example, the panel fund that cntractual arrangements fr tenant farmers still leave much t be desired, especially within the cca industry. Similarly, wmen and ther vulnerable segments f the ppulatin still find it difficult t access land in many parts f Ghana. Plicy implementatin is generally inadequately resurced. Land sectr agencies still have immanent capacity weaknesses as a result f insufficient budgets. Even where csting f land plicies des ccur and land sectr agencies d submit these budgets, funding allcatins are nt adequate. 15
The varius land sectr agencies d submit quarterly and annual reprts t the headquarters f the Lands Cmmissin and the sectr ministry in Accra. Hwever, the prcess f reprting ften invlves delays. Mrever, the panel felt that analysis t capture prgress in plicy implementatin and t institute remedial measures is weak. Despite the prgress achieved under LAP, including the wrkings f bth the Land Sectr Technical Cmmittee and the Land Plicy Steering Cmmittee t track prgress, certain land sectr prblems have persisted and in sme cases wrsened, as in the case f migrant r tenant farmers in the cca industry. 4.2 Land use planning, taxatin, and management 4.2.1 Transparency f restrictins Transparency f Land Use LGI # Indicatr A B C D 7 i Urban land use plans and changes t these are based n public input 7 ii Rural land use plans and changes t these are based n public input 7 iii Public capture f benefits arising frm changes in permitted land use 7 iv Speed f land use change The panel bserved that within its current legal and institutinal framewrk, planning cntinues t be a tp dwn prcess, and it has been argued that inattentin t incrprating meaningful public participatin int the prcess has been a significant cntributr t the discnnect between planning and realities n the grund. Planning is accmpanied by virtually n public hearings, even in urban cmmunities. In the rural areas, public input in develping r amending land use plans has typically been nn-existent. Currently the mechanisms t allw the public t capture significant share frm changing land use (e.g. betterment taxes, levies fr infrastructure, prperty tax) are neither used nr applied transparently. The amended Planning Ordinance f 1945 (Cap. 84) prvides the legal basis fr betterment levies. In practice, hwever, there is virtually n cllectin f betterment levies, except in the event f cmpulsry acquisitin, in which case the levy may be applied as a set-ff t reduce the amunt f cmpensatin the gvernment must pay. Instead, many assemblies depend primarily n prperty taxes, amng the surces f revenue that are based n land. Still, the fact that mst prperty cadastres are nt updated r d nt exist implies lw revenues fr the Metrplitan, Municipal, and District Assemblies (MMDAs). Likewise, fungibility f funds tends t be high, thus denying the public the ptential gains frm permitted land use changes. The draft planning law makes sme attempt t crrect this situatin thrugh the inclusin f prcedures fr the capture f betterment charges and fr permitting land uses t be used fr the cllective gd. Land use change ccurs rather rapidly, in part due t weak regulatins that allw fr develpment with r withut services. The grwth f the service sectr and rapid urbanizatin have caused the demand fr cmmercial and residential spaces t increase in urban centres. Industrial land use, by cntrast, has nt seen much grwth in demand. Based n interviews with prfessinal planners, the panel estimated that mre than 70% f cmmercial develpments are 16
transferred t their destined use within 3 years, with a slightly lnger timeframe fr residential develpments in mst lcatins. Still, the rapidity f prperty develpment in Ghana is slwed by lw incmes and access t financing, especially fr residential develpment. Land use changes are als rather slw in rural districts relative t municipal and metrplitan areas. 4.2.2 Efficiency in planning prcess Efficiency f Land Use Planning LGI # Indicatr A B C D 8 i Prcess fr planned urban develpment in the largest city 8 ii Prcess fr planned urban develpment in the next 4 largest cities 8 iii Ability f urban planning t cpe with urban grwth 8 iv Plt size adherence 8 v Use plans fr specific land classes (frest, pastures, etc.) are in line with use The LGAF panel nted that the fast pace f urbanizatin and capacity weaknesses in planning institutins have kept develpment cnstantly ahead f the planning prcess. This is partly due t insufficient planning persnnel: a land use planning and management prject reprt identified a shrtfall f 451 f key persnnel ut f the ttal f 837 required, and reprted that as many as 120 Twn Planning and Assistant Twn Planning Officers and 92 Senir Twn Planning Officers were nt at pst in the varius ffices. 10 The prblems assciated with this shrtage f staff have been exacerbated by a lack f base maps (either in hard cpies r digital frm), the lack f archives, the deteriratin f existing hard cpies f maps, and a shrtage f vehicles. At the plan management level, majr challenges include the lack f clear land rights, the lack f legal prvisin fr newly emerging land uses, the existence f multiple permitting agencies, applicatins that fall shrt f standards, incrrect site plans, prpsed uses that are incmpatible with zning regulatins, and a high incidence f cnversin, invasin, and successin. Weak enfrcement systems make it attractive fr land use develpment t precede planning and land sales, because planning authrities are unable t keep pace with the demand and pressure t plan. Sme chiefs have met this increased demand fr land by engaging surveyrs wh are nt trained t prepare planning schemes and layuts. Such surveyrs ften draw up plans that lack all ancillary services that cme alng with such schemes. Mst state and vested lands fllw the apprved prcess f planning, servicing-building, and ccupatin, whereas develpment n stl lands remains mstly unapprved. 11 The standard plt size is 100ft x 120 ft. Hwever, due t pressure n urban land, in practice plt sizes are variable. Peple may even buy plts that are half the standard size, if inadequate land is available at their budget level. This situatin hlds generally acrss all urban cities. Mst rural lands have sme areas set aside fr frest and wildlife reserves. Hwever, encrachments n these lands may ccur. In additin, lands acquired cmpulsrily by the 10 LUPMP 2008 11 Gugh and Yanksn 2000 17
gvernment that are nt being put t their intended uses are smetimes used by lcal peple as their surces f livelihds. Thus the panel estimated that mre than 50% f lands set aside fr specific purpses are being put t nn-specified uses. 4.2.3 Speed and predictability Speed and Predictability LGI # Indicatr A B C D 9 i Requirements fr building permits are affrdable/transparent 9 ii Time t get building permit The prblematic peratin f the building permit prcess reflects the general dysfunctin f planning prcesses in Ghana. Despite a legal requirement that building permits are t be issued within three mnths, the LGAF panel bserved that mst permits withut applicatin irregularities typically required nine mnths r mre, althugh there is n hard data t cnfirm the general validity f this bservatin. The requirement that prperty must be registered befre building permits are issued cntributes t the lag between develpments and planning, and weakens the incentives f landhlders t apply fr permits in the first place. Rent seeking behavir amng staff respnsible fr issuing building permits, as well as inefficiencies in the Statutry Planning Cmmittee and ther relevant bdies, further exacerbate these issues. 4.2.4 Transparency f valuatins Transparency f Valuatin LGI # Indicatr A B C D 10 i Clear prcess f prperty valuatin 10 ii Public availability f valuatin rlls The Lcal Gvernment Act stipulates that the Depreciated Replacement Cst (DCR) shuld be the basis f valuatin fr prperty rating. Althugh this establishes a clear prcess f prperty valuatin, in practice depreciatin is applied in a discretinary manner. Furthermre, while market prices reflect the value f prperty, the DCR is primarily based n cst, which frequently diverges frm market price and value. It is a plicy fr District Assemblies t make valuatin rlls publicly available. Hwever, a general lack f willingness amng land institutins t make infrmatin publicly available cupled with public ignrance f the right t such infrmatin make nn-prvisin f infrmatin the nrm rather than the exceptin. Media publicatins regarding the availability f valuatin rlls fr inspectin at the District assemblies are rare. Even when such ntificatins are published, the high level f illiteracy makes this infrmatin inaccessible fr prtins f the ppulatin. 18
4.2.5 Tax cllectin efficiency Tax cllectin efficiency LGI # Indicatr A B C D 11 i Prperty tax exemptins justified 11 ii Cmpleteness f tax rll 11 iii Assessed prperty taxes are cllected 11 iv Taxes higher than cst f cllectin The panel nted that certain prperty tax exemptins seem justified n equity r efficiency grunds, such as exemptins applied under the Free Znes Bard. Hwever, the justificatin fr exempting churches and cemeteries was less straightfrward, as these institutins accumulate significant revenues. The panel als judged that the implementatin f such exemptins may als be discretinary. Mst prperty wners are nt included in the tax rll because f the generally pr state f prperty identificatin systems within the District Assemblies. Even in Accra, it is nt always pssible t easily identify prperty wners and deliver mail by hand. The cllectin f prperty taxes in rural areas is almst nn-existent because the majrity f the prperties are nt suitable fr assessment. In additin, structures fr tax cllectin and a culture f prperty tax payment are generally absent. The valuatin rlls f District Assemblies are prepared and updated infrequently, partly due t cst and partly t lack f will within District Assemblies. Mst District Assemblies rely almst exclusively n Central Gvernment funding thrugh the Cmmn Fund fr District Assemblies, leaving them unmtivated t generate internally their wn surces f revenues fr lcal develpment. Where prperty rate cllectin des ccur, it remains bedeviled by pr returns frm rate cllectrs emplyed by the District Assemblies. This has led t an emerging trend f revenue cllectin utsurcing by sme f the District Assemblies keenly interested in internal revenue mbilizatin. 4.3 Management f Public Land 4.3.1 Identificatin f public land Identificatin f Public Land LGI # Indicatr A B C D 12 i Public land wnership is justified and implemented at the apprpriate level f gvernment 12 ii Cmplete recrding f publicly held land 12 iii Assignment f management respnsibility fr public land 12 iv Resurces available t cmply with respnsibilities 19
12 v Inventry f public land is accessible t the public 12 vi Key infrmatin n land cncessins is accessible t the public Public land in Ghana cmprises land that the state has acquired thrugh cmpulsry acquisitin, as well as vested land f which the state has assumed cntrl. The panel understd the justificatin f cmpulsry acquisitin as in the public interest when dne fr the prvisin f public gds, fr example. Still, the gvernment has engaged in the excessive use f cmpulsry acquisitin, as discussed belw, resulting in landlessness and tenancy fr the riginal wners. Fr vested lands, the panel felt that vesting the legal interest in the President and the state was justified. The current plicy directin leans tward divestment; hwever, the panel argued that divestment shuld ccur n a case-by-case basis, as blanket divesting culd lead t the emergence f land cnflicts. Fr example, in the Brng Ahaf Regin, divestment may risk inflaming tensins that already exist amng traditinal authrities ver claims t land vested in their jurisdictins. As nted abve, public land cnstitutes apprximately 20% f the ttal land area. Hwever, infrmatin cncerning the extent and lcatin f state hldings remains incmplete and in sme cases inaccurate. The panel estimated that less than 30% f public land has been clearly identified n the grund r n maps. A pilt inventry f state land in the Central Regin was cnducted under LAP I. In the inventry sample f 713 presumed gvernment sites, nly 138 were fund t have recrds cnfirming that they were state lands. This sample is expected t be indicative f state land inventries in the rest f the cuntry. Infrmatin abut acquired land is ften missing r inaccurate, cntributing t cnfusin abut the extent and lcatin f state land. The current inventry f public lands needs t be cmpleted befre its infrmatin can be made publicly available. The panel expected that access t this infrmatin will nly be limited fr selected types f data, such as financial terms. Additinal infrmatin n acquisitins and vesting rders is available frm the Executive Instruments, as well as frm relevant site plans. Hwever, many f these recrds remain missing, imprperly cmpleted, r prly kept, especially thse frm the first decades f independence. Key infrmatin n land cncessins is nly partially publicly available. Site plans specify nly the wnership, use, lcatin, and size f the plts identified n them. The financial terms f land transactins and the value f the land parcels are nt included. It is the sle respnsibility f the Lands Cmmissin t manage bth cmpulsrily acquired and vested lands. Its mandate is clear under the Cnstitutin and the Lands Cmmissin Act, 2008 Act 767. Hwever, the rles f ther public institutins including the Twn and Cuntry Planning Departments and District, Municipal, and Metrplitan Assemblies have functinal verlap, especially regarding the cntrl f develpment. Resurces fr public land management include bth gvernment budget allcatins and internally generated funds; yet the panel felt that these resurces are severely limited. The resurces injected int land sectr agencies under LAP I have assisted in revamping the Lands Cmmissin, and the panel nted the need fr LAP II t build upn these achievements. 20
4.3.2 Justificatin f exprpriatin Incidence f Exprpriatin LGI # Indicatr A B C D 13 i Transfer f exprpriated land t private interests 13 ii Speed f use f exprpriated land In the first three decades f independence, successive Ghanaian gvernments pursued an aggressive campaign f land acquisitin, a cntinuance f a trend well underway at the end f the clnial perid. Over 100,000 hectares f land were acquired. The largest expanses f acquired land were intended t supprt agricultural schemes and frestry peratins. Substantial amunts f land were targeted fr hydrelectric, residential, and ther develpment uses. As bth the Natinal Land Plicy dcument and the LGAF panel nted, the gvernment used its pwer f cmpulsry acquisitin excessively during this perid, ften failing t use the acquired lands fr their intended purpses and failing t pay adequate cmpensatin t exprpriated parties. Acquired land has been particularly susceptible t encrachment r cntinued ccupatin by existing residents due t delays in gvernment taking pssessin f the land and putting it t use. Acquisitins have frequently been unaccmpanied by any strategic planning r budgeting fr the eventual use f the land, cntributing t the incidence f nn-use r misuse nce land has been transferred t the state. Sme land has been diverted frm the intended public use t private develpment, an actin facilitated by the pre-1992 Cnstitutin standard that Gvernment culd acquire land fr any purpse which in the pinin f the Gvernment wuld be fr the benefit f the cuntry as a whle. Recently, the practice f cmpulsry acquisitin in Ghana has imprved, althugh prblems remain. The 1992 Cnstitutin includes tighter prvisins cncerning public purpses, requires clearer justificatin fr acquisitin, and prvides a pre-emptin right fr frmer wners in the event land is nt used fr its intended public purpse. The State nw has a duty t indicate explicitly the specific use r uses t which the land is t be put befre the acquisitin becmes valid. Shuld there arise a diversin f use, the riginal wners have a legal basis t munt a challenge in the curts t seek the return f the land t them under a right f pre-emptin. This, the panel nted, has cut dwn cnsiderably n the diversin f exprpriated land t private purpses. Likewise, the cmpletin f a state land inventry is expected t help infrm the prcess f selective returning f unused land and the negtiatin f utstanding cmpensatin amunts. As the gvernment has becme mre aware f the prblems f cmpulsry acquisitin and nnpayment f cmpensatin, it has been cnsiderably mre cautius in deplying its pwer f eminent dmain. Mrever, any gvernment agency asking fr land nw has a duty t have sufficient funds available fr the payment f cmpensatin. Nevertheless, the panel expressed the cncern that lands acquired cmpulsrily are still nt always transferred t their destined uses in a timely manner due t a lack f resurces t pay cmpensatin and execute prjects. 21