Antecedents to current land administration systems
As with many other emerging economies, the land registration systems in Ghana have experienced a long history. Woodman (1988) and Agbosu (1990) claim land registration in Ghana was first introduced in 1883 with the Land Registration Ordinance, followed by the Land Registry Ordinance in 1895. Though these statutes form the distant antecedents to the current systems, they were created by the colonial administration mainly to protect land rights of minority white merchants. Even in the coastal areas where colonial interests in the land market were at that time most developed, plural tenures under which systems of common law enacted by legislation and customary law continued to coexist (Woodman, 1988). Problems such as inadequate security of tenure, indeterminate allodial boundaries, disputes and litigation, and difficult access to land and general indiscipline in the land market could be the products of the duality system - customary and common law.
A multiplicity of laws was enacted by pre- and post-independence governments to deal with specific land-related problems on an ad hoc basis, not forming part of a comprehensive policy on land administration. Some of these statues include the Public Lands Ordinance, 1876 (Cap 134); Land Appropriation Ordinance, 1901; Land and Native Rights Ordinance, 1927 (Cap 143); Kumasi Lands Ordinance, 1943 (Cap 145); Akim Abuakwa (Stool Revenue) Act (No. 28), 1958; and Stool Lands Act, 1960 (Act 27).
The Land Registry Act, 1962 (Act 122), though with nationwide coverage, recorded only formal transaction deeds like its predecessors and did not register proprietary interests established under customary claims. The Land Title Registration Act, 1986 (PNDCL, 152) for the first time provided for systematic registration of all interests in land under both common law and customary ownerships in the country. By the late 1990s, however, the progress of registration was still being limited to only the Greater Accra Region, comprising major cities such as Accra and Tema and part of Kumasi, the regional capital of the Ashanti Region. Though within those areas the law prescribed systematic registration, its implementation remained patchy. The transition from Act 122
Land administration 17
to PNDCL 152 appeared not to have been properly managed. Institutional bottlenecks such as lack of cooperation between the Lands Commission and the then Land Title Registry as the agencies involved in the process, lack of capacity and resources and the reliance on numerous, overlapping and outdated statutes accounted for that situation.
In all the indigenous social administrations, land is communally held in trust for the tribe, clan or family, and administered by the chiefs, tendambas3 or heads of these sociopolitical entities. Members of these entities or ‘indigenes’ have had guaranteed access to their land. Nevertheless, as the population increased and put pressure on land, indigenous arrangements under which individual members of the lineage enjoyed general rights of access to land have been rendered untenable. Commercial transactions in land and the transformation of inheritance principles compounded by increasing pressure and demand have given rise to increased litigation over land. Some indigenes have sought to undermine the authority of their chiefs or heads of families and gone ahead to conclude land transactions without the knowledge and consent of the chiefs or heads, resulting in disputes. The need for a coherent land policy and effective land administration in the long-term informed the government in 1999 to develop the first-ever national land policy.
The National Land Policy
The Government of Ghana introduced its comprehensive National Land Policy in June 1999 with a long-term goal. The policy seeks to stimulate economic development, reduce poverty and promote social stability by improving security of land tenure, simplifying the process for accessing land, and making it fair, transparent and efficient. Further, it aims at developing the land market and fostering prudent land management. The policy addresses challenges of the land sector including inadequate policy and legal framework, fragmented institutional arrangements and weak capacity, weak land administration systems, underdeveloped land registration system, inefficient land markets, and compulsory acquisitions of land by government without compensation (Ministry of Lands and Forestry, 1999).
The long-term goal of the policy was to be achieved through the implementation of a 15—25-year land administration reform dubbed the Land Administration Project (LAP), largely funded by development partners with the World Bank as the lead partner. The first phase sought to address the weak fundamentals and lay long-term foundation with the focus on the following.
Inadequate policy and legal framework
Land as an asset class provides the foundation for economic activities and the functioning of markets, and governments at both central and local level. Norms and regulations, together with systems, are thus developed to control and legally protect the rights and interest held in land to address land market imperfections.
18 Land administration
Land administration in Ghana is characterised by the duality of customary and common law as well as court judgements that have been ruled on customary subjects and resulted in a body of legal precedents. Prior to the commencement of LAP, it was reported that 166 laws existed to either regulate land administration or establish mandates of different land sector agencies or both. Many of the laws were not only outdated but also conflicted with one another. There was a high incidence of reliance on these laws to prolong land litigation in the courts and in some cases confuse issues. One of the key performance indicators for phase one of LAP was thus to reduce the estimated 35,000 land cases in courts; the Greater Accra Region alone was reported to have over 15,000 land disputes, mainly due to boundary overlaps or conflicting claims of ownership pending in the courts as of July 2003.
Several agencies existed to administer public, vested and stool lands (Lands Commission); settle stool land boundary disputes (Stool Land Boundary Commission); collect and disburse stool land revenue (Office of the Administrator of Stool Lands); determine land and property7 values for various purposes, rateable values and compensation for public land acquisition (Land Valuation Board); undertake national land survey and mapping, licensing of land surveyors and verification of survey plans (Survey Department); and registration of titles and protection of interest in land (Land Title Registry). The multiplicity of land sector agencies resulted in the duplication of functions and resources, unproductive competition between agency heads and even among technical staff and protection of turfs. Turnaround time for land services delivery' and transaction costs had been very' high due to institutional inefficiency.
Conflicts of interest between and within land-owning groups and even the state give rise to tenure insecurity. Lives of parties involved in litigation and their properties are sometimes in danger. The situation is worsened by' the slow determination of land cases in court, which adds up to the costs of transactions in the real estate market. In Ghana, as with other sub-Saharan African countries, tenure insecurity means that large parts of the population are unable to realise the full benefits of land ownership. Among which are access to credit, sustainable management of resources, and investment incentives and ability to alienate. Large tracts of land have been compulsorily' acquired by' the government, and have not been fully’ utilised and/or often with unpaid compensation. This situation has truncated the sources of livelihood of the land owners, and led to unnecessary tension between original landowners and the state. Phase one of LAP was therefore designed to harmonise land policies and the legislative framework with customary law for sustainable land administration.
Undeveloped land registration system and inefficient land market
Security of land ownership is certainly' enhanced by' identifying and protecting property' rights and interests. This can be achieved through an efficient and effective land registration system. The proposition of land title registration is to give certainty and facilitate proof of title. Other characteristics are to render dealings in land safe, simple and cheap and prevent transaction frauds. With
Land administration 19
the exception of few cities and towns in the country that have benefited from urban redevelopment projects, there is no systematic cadastral mapping, registration and land titling program.
Allodial lands held by stools, skins and families are largely characterised by indeterminate boundaries due to lack of reliable maps and plans. Outdated and inaccurate boundary plans are relied upon and the consequences are protracted litigation and freezing of land for developments. Frequent encroachments on undeveloped lands, multiple transactions and unapproved development schemes resulting in haphazard developments, environmental degradation and frequent violent confrontations between and among conflicting claimants are also rife. Haphazard developments, overdominance of residential in relation to other land uses such as schools, leisure and open spaces, restricted accessibility and poor drainage systems are common features of the built environment.
The increasing demand for urban land relative to its fixed supply underpins the land market inefficiencies. There is a gross demand and supply mismatch for residential purposes that has resulted in highly priced urban lands and haphazardly developed peri-urban lands. This situation is often not supported by requisite infrastructure such as access roads, drains, electricity and pipe-borne water.
In terms of financing, there is usually a great loss of revenue to the central and local governments because most of the land transactions in the cities and towns are informal and unregistered. Funding for social, environmental and infrastructural development continues to be the sole burden of the central government and Metropolitan, Municipal and District Assemblies. An obvious response was to customise LAP to establish an efficient, fair and transparent system of land titling, registration, land use planning and valuation in the country to address the weaknesses.
Fragmented institutional arrangements and weak capacity
A good land governance promotes tenure security and national development. Across the West African subregion, there are weak governance structures for both public and customary lands, resulting in weak and inefficient institutions. A large stock of lands in Ghana, estimated at 80 percent, are communally owned and held either by a stool, skin or family in trust for the larger community or group. Whilst stool lands are a common feature of land ownership in the Akan traditional areas in the middle and southern parts of the country, northern Ghana is differentiated by skin lands. The 1992 Constitution reinforces traditional land ownership. Article 267 (1) of the Constitution provides that ‘all stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust of the subjects of the stool in accordance with customary law and usage.’ The family land holding category represents a private communal land ownership prevalent in some regions including Volta, Greater Accra, Central, Eastern and Oti. The 20 percent residue is either state or vested land together with all water bodies in the country. State lands are compulsorily acquired by the president of the Republic of Ghana for public purposes or in the public
20 Land administration
interest. Sandwiched between state and stool lands is a small percentage of vested lands with a split of holding rights between the state as the managers and allodial owners as beneficiaries of the revenue.
Six land sector agencies - the Land Valuation Board, Lands Commission, Survey Department, Land Title Registry, Office of the Administrator of Stool Lands and Town and Country Planning Department — existed with fragmented and sometimes overlapping responsibilities prior to 2008. Each agency performed an aspect of land administration such as valuation; deed registration and management of public, stool and vested lands; stool land revenue mobilisation and disbursement; title registration; surveying and mapping; and land use planning with limited collaboration. Lengthy and cumbersome procedures for land acquisition as well as the high cost of land transactions and registration culminated in rent seeking behaviour among staff of the agencies. Duplication of functions and resources among the agencies and unproductive competition were the other weaknesses that informed the decision to undertake institutional reform and capacity building under LAP.