The Rift Valley

Following the abolition of slavery two centuries ago, the land question, now remains the last colonial question which sub-Saharan Africa must resolve to facilitate the region’s socio-economic advancement. The scramble for Africa and its subsequent partitioning amongst the colonial powers provides the origin of the land question.

It has been asserted that customary law, did not consist of indigenous rules per se but was a product of colonisation, whereby the colonial power accepted certain versions of the recorded indigenous traditions as customary law pertaining to native matters. Hence, while the colonial administration inculcated the dichotomy between modern versus customary, the co-existence of a written formal general law, state-sanctioned selected customary law, and local indigenous rules often prevailed and influenced each other.

The colonial powers initiated and nurtured the concept of customary land tenure with three fundamental distortions. Firstly, the idea of community rights to land became so one-sided that it was at variance with the concept of individual land rights. Secondly, the definition of customary authorities who exercised the right to allocate use rights to land in communities confused ritual powers in procedures of land allocation with proprietary rights in land. Thirdly, the definition of community was taken as tribe, and hence all migrants who did not belong to a particular major tribal group in a community were taken as strangers and had no traditional access rights to land. These distortions were however contrary to practices that existed in pre-colonial African societies.

Land was a point of contention in colonial Africa, not only in areas where Europeans appropriated land outright, but also in regions where the commercialisation of agricultural land, pastoral and forest products reshaped the production and exchange relations among Africans. This led to new demands for access to and control of land. [These] serve to illustrate both the complexity and contemporary land conflicts in Africa, and their importance as sites of debate over the social meaning of property and the place of the past in contemporary struggles over governance and distribution of resources.

To determination access to and management of land resources in sub-Saharan Africa, the colonial government created a system that was characterized by serious inequities and distortions. This system gave rise to a complex, overlapping and insecure system of land rights; facilitated the disappearance of common property resources; dislocated land from the social, cultural and spiritual life of indigenous Africans;  debased the power and structural arrangements of indigenous land governance institutions and hoisted the state as a dominant factor in people-land relations.

Ghana’s experience with the land question

In a bold attempt to address the land question, a national land policy was devised in 1999 to promote community participation in land matters; protect customary rights; ensure sustainability in land use; equitable access to land and security of tenure; build institutional capacity to ensure effective land management; and promote research into various aspects of land ownership.

A 15 year (2003-2018) donor supported Land Administration Project (LAP) for Ghana worth USD 55 million has been designed not only to implement the national land policy but also to develop a sustainable,efficient and cost-effective land administration system that enhances security of tenure at the community level. LAP expects to  achieve its objectives through:

• The development of mechanisms which improve the security of the land rights of the vulnerable stakeholders in a customary area, e.g. women and strangers;

• The identification, demarcation and registration of land rights in customary areas without formal survey input as appropriate;

• The development of forms of certificates or entitlements which reflect the nature of the rights registered and the accompanying terms and conditions for the use of the land;

• The establishment of simple registries to record land allocations, transactions and land use decisions;

• The establishment of more effective land dispute resolution mechanisms;
• The adoption of simple land use planning of customary areas to minimise inappropriate land use and protect areas of common interest to the community.

Although promoting dialogue between customary authorities would be critical to the integration of customary and statutory tenures in Ghana, the broad masses of community-based land users had limited involvement in the development and implementation of the national land policy. Although the overall strategic direction of the policy assumes that the documentation of individual rights in land guarantees security of tenure, the experience of such a scheme in Kenya shows this may not be the case. The role of Tendanas (earth-priests) in customary land administration in some parts of Ghana has not been recognised in the national land policy. The recognition of the Tendana in the national land policy is underscored by the fact that the northern conflict in 1994 between Dagombas (chiefly people) and Kokombas (chiefless people) was a bid by both sides to lay claim to the title of land owner.

Recognition of customary land rights alone is inadequate for their protection. Other concerns, such as measures aimed at promoting the use of permanent land boundary indicators; strengthening the land rights of vulnerable stakeholders, e.g. women and strangers in accordance with social norms in the communities and enhancing sustainable land management practices within the financial constraints of a country are vital to the successful protection of customary land rights in Ghana,  and by extension, sub-Saharan Africa.

Conclusion

The land question in sub-Saharan Africa is largely a colonial problem. Dealing with poverty, declining agricultural production and environmental degradation in the region are tied to answering the land question. The African concept of land ownership espouses a multiplicity of ownership over a single parcel of land which the European idea of individualisation of land ownership failed to consider. Sadly, post-colonial governments also failed to realise this conceptual misfit and perpetuated most land policies of their colonial masters in the name of enhancing security of tenure. As a result, the evolutionary process of land rights was curtailed by the intervention of colonisation.

In 21st century Africa, it is difficult to find pristine customary tenure practices anywhere on the continent without a mix of statutory tenure to serve as best practice. If land demarcation and registration in statutory land tenure were built into customary land tenure, it is possible that sustainable use of land resources would be achieved and lead to effective land administration.

To achieve harmony in the process of integration of customary and statutory tenures for sustainable land use and effective land administration, however, requires the adoption of strategies based on participatory processes of decision-making and implementation by all stakeholders, especially the marginalized stakeholders in the land resource use and management process. The position of Africa in the 21st century therefore largely looms on what answer is found to the land question in sub-Saharan Africa.