Land governance and land acquisitions in Ghana

After independence, state land was maintained by post-independence rulers and governed by the State Lands Act (No. 125 of 1962) for public lands (Republic of Ghana 1962b) and the Administration of Lands Act (No. 123 of 1962) for vested lands (Republic of Ghana 1962a). Vested land is land where the state acquired the management functions by law, while the ownership emanating from custom, that is the allodial title, stays with the chief and entitles him to receive ground rents. In general, leaseholds under common law, of both state and customary land, can be granted for up to 99 years for Ghanaians and 50 years for foreigners (Republic of Ghana 1992: Art. 266 (4)).

Currently, state land in Ghana accounts for roughly 20% of the land surface, while the remaining 80% falls under customary land held by stools (in southern Ghana), skins (in northern Ghana) or families (for instance in the Volta Region) (Kasanga & Kotey Reference Kasanga and Kotey2001; Aryeetey et al. Reference Aryeetey, Al-Hassan, Asuming-Brempong and Twerefou2007b).Footnote ² Although these figures are rough estimates, they underline the strong role of the customary system to date (Anyidoho et al. Reference Anyidoho, Amanquah and Clottey2008; Ubink & Amanor Reference Ubink and Amanor2008).

Over time, 166 pieces of land legislation were developed but, given the overlaps and loopholes, did not result in an efficient formal land rights system (Quaye Reference Quaye2006). This multitude of Acts and their ambiguity have been hampering proper enforcement of land laws and regulations for decades, so people have become used to acting in legal grey areas (Interviews G15, G21). In 1999, the Government of Ghana recognised shortcomings in its National Land Policy (Republic of Ghana 1999) and this led to the initiation of a Land Administration Project (LAP) with World Bank support in the year 2000 (Aryeetey et al. Reference Aryeetey, Ayee, Ninsin and Tsikata2007a; Bugri Reference Bugri2012). A comprehensive legal framework is currently being developed.Footnote ³

The first step for investors in quest of land is to identify available land. For this task, it is usual to engage local professionals with a wide-ranging network (Interviews G17, G19). Another possibility for foreigners is to approach the Ghana Investment Promotion Centre, which is currently improving a database capturing customary land offered for investment projects (Interviews G17, G19, G20; GIPC 2013).

As the majority of land in Ghana is customary land, potential investors have to negotiate in most cases with chiefs and paramount chiefs and have to bargain over the amount of the ‘drink money’, which is necessary to seal a land deal according to customary rules (Interviews G15, G17, G19; for examples: Schoneveld et al. Reference Schoneveld, German and Nutakor2011; Amanor Reference Amanor2012; Wisborg Reference Wisborg2012; Berry Reference Berry2013). The term ‘drink money’ originally meant a physical drink but now symbolises asking permission to approach the chief in good will (Interviews G3, G29; Amanor Reference Amanor2010). Nowadays, the ‘drink’ is converted into financial terms. With growing pressure on land the amount is increasing and translates to a substantial part of the acquisition costs (Interviews G15, G20, G29; Ubink & Quan Reference Ubink and Quan2008).

By custom, the traditional council and the elders need to agree to negotiations in order to guarantee checks and balances (Interviews G15, G29; Kasanga & Kotey Reference Kasanga and Kotey2001). However, de facto accountability can be weak: For instance, it is up to the chiefs whether they disclose the amount and the intended use of the ‘drink money’ (Interviews G15, G20; Berry Reference Berry2013). Moreover, it is up to the chiefs and the traditional councils (and the investors) to decide whether they will seek free, prior and informed consent, so the local population is at risk of hearing about a deal only after the negotiation has been concluded (Interviews G15, G21). In addition, chiefs usually do not have access to information on the market value of land during their negotiations for sufficient ‘drink money’, land rents and other benefits (e.g. local employment quotas, contract farming schemes, equity shares and corporate social responsibility) (Interview G15).

In the second step, the investor receives the site plan from the chief and must initiate a comprehensive search at the archives of the Lands Commission, to check that the negotiating party is the legal owner and that there are not multiple claims on the land (Interviews G20, G21, G27; Republic of Ghana 2008). Further checks with the Town and Country Planning Department are necessary to ascertain whether the land is available for the intended economic activity (Interviews G20, G30; Republic of Ghana 1993).

If everything is in order, a licensed surveyor is engaged to map the land (Interviews G16, G27; Republic of Ghana 1986). According to custom, negotiations are concluded with the payment of ‘drink money’ (Interviews G15, G20, G29; Ubink & Quan, Reference Ubink and Quan2008). Once details have been agreed upon, the documents have to be handed in to the Regional Lands Commission to process the registration. If the land is located around Accra or Kumasi a title can be issued; in other parts of Ghana only deed registration is available (Interviews G16, G20; Kasanga & Kotey Reference Kasanga and Kotey2001). Title registration is conditional on announcing the transaction details at the site itself, at the respective district assembly and at the Regional Lands Commission. When 21 days have passed without any objection being raised, the registration process can be completed (Interview G16; Republic of Ghana 1986).

The annual rent, which is confirmed by the Lands Commission in the leasehold, will be paid to the Office of the Administrator of Stool Lands (Interviews G12, G23; Republic of Ghana 1994a). This authority charges a 10% administrative fee. The rent is disbursed as follows: 55% to the district assembly, 25% to the chief and 20% to the traditional council (Interviews G12, G21, G23; Republic of Ghana 1994a).

After a land lease has finally been issued, an Environmental Impact Assessment (EIA) is mandatory. Actors such as the Environmental Protection Agency and the Water Resource Commission thus have a say in regulating future land use (Interviews G15, G31; Republic of Ghana 1994b, 1996).

Since electronic data management and transmission is still weak in Ghana, processing documents is time intensive (Interviews G16, G18, G21). In addition, monitoring and sanctioning of regulations remains a challenge due to a lack of personal and financial resources (Interview G33; Environmental Protection Agency 2010; for the mining sector see Domfeh Reference Domfeh2003). Therefore suitable grounds exist for offers of ‘speed money’, and rent-seeking exists at various levels, fostering fraud such as multiple sales of land or incomplete registration.

Process of acquiring land in the case of GOPDC

Ghana Oil Palm Development Company (GOPDC) is the leading palm oil producer and the biggest company in Kwaebibirem District, a remote area in the Eastern Region of Ghana. It was established as a state-owned company in 1976 on an area of 8,953 hectares, known as the Kwae Concession (Registered Leasehold No. 1258/1976).Footnote ⁴ In the wave of liberalisation, GOPDC was privatised in 1995 and the 50 years leasehold (Republic of Ghana 1976) was divested to the Belgian investor Société d'Investissement pour l'Agriculture Tropicale, which took over the majority of shares (GOPDC 2013; SIAT 2013).Footnote ⁵

This analysis focuses on Okumaning Concession, which was GOPDC's second concession and acquired in 2000. It covers 5,205 hectares of vested land which were leased for 50 years from the government (Registered Deed RE 2538/2008). Originally, the land of Okumaning Concession was fully under the control of Okumaning, Takworase and Kusi stools, but the government acquired the land under the Administration of Lands Act (No. 123 of 1962) in 1976 and was thus entitled to lease the land to GOPDC.

The difficulty with acquisitions of vested land under Act No. 123 of 1962 is the creation of overlapping interests in land, as mentioned earlier. The allodial titles remain in the hands of the chiefs, while management functions come under the remit of the state (which in this case were leased out to GOPDC). Altogether, the role of the chiefs is very complex: they negotiate corporate social responsibility activities with GOPDC (Interviews G1, G2, G14) and are (according to custom) highly appreciated by the population (Interview G15). However, some chiefs have been criticised and had their legitimacy questioned by the people (Interview G7; FGDs G4, G5, G7, G9) due to misusing their positions for personal benefit. In one particular case, this malfeasance included chiefs renting out to migrants portions of land GOPDC had not yet cultivated, despite receiving ground rent from GOPDC through state agencies.

With regard to GOPDC's acquisition of the Okumaning Concession, our focus group discussions revealed a lack of free, prior and informed consent. While some people had been informed in a meeting with GOPDC (FGD G1), others had only heard about the investment project from their chiefs (FGD G8) or, even worse, had only become aware of the acquisition when the Land Valuation Board came in to estimate the worth of their land for compensation purposes (FGD G9). The whole process, beginning with information and sensitisation, was characterised by a lack of transparency and the presence of many irregularities and delays.

Although GOPDC appears to have adhered to all other mandatory legal procedures, there may have been a few instances where they did not comply. For example, the Environmental Management Plan requires that quarterly reports on, for example, effluent treatment are sent to the Environmental Protection Agency (Interviews G31, G33). According to the agency, these reports reveal that GOPDC was fined several years ago (Interviews G31, G33). GOPDC is also required to renew all necessary water permits on a regular basis. However, the Water Resource Commission stated that there had once been a delay of a few months (Interview G31).

Implications of the GOPDC investment

Once GOPDC took over the assets and liabilities for the Okumaning Concession from the state, it had the duty to compensate everybody who lived and farmed on the concession. The people living in this sparsely populated area were predominantly migrants. As these migrants were not bound to the land by social ties, they favoured cash compensation over the resettlement plan suggested by GOPDC (A.Y. & A. Consult 2007; Interview G3; FGD G4). Consequently, the Land Valuation Board surveyed crops and housing structures but not the land itself (Interviews G1–G3, G7, G14; FGDs G4–G10). This was because GOPDC already possessed the leasehold for the land and the migrants had neither statutory nor ancestral rights to use the land (Kobo Reference Kobo2010). The amounts calculated by the Land Valuation Board were perceived to be inadequate to restore the migrants' livelihoods (FGDs G1–G8, G10). Furthermore, people who used to live or farm on Okumaning Concession reported that they did not receive compensation until five years after they had left the land (FGDs G1, G4–G9).Footnote ⁶ The fact that people only received a cheque with the aggregated sum (FGDs G2–G7, G10) increased the suspicion that they were being tricked by their own government.

Nevertheless, GOPDC is perceived to be a driver of development in the region by the local population (Interviews G1–G3, G10, G11, G13, G14; FGDs G1–G4, G7, G8, G10–G12). It not only runs a nucleus estate system with more than 2,000 plantation workers, in order to run the mill efficiently and foster economic integration, GOPDC has also increased its access to fresh oil palm fruit by contracting more than 7,000 outgrower farmersFootnote ⁷ (Interviews G5, G6). Moreover, the company also makes purchases from independent oil palm farmers.

According to Väth (Reference Väth2013), however, benefits from GOPDC are not equally distributed amongst the local population, which has led to widespread resentment against the investment (FGDs G1–G12). These issues range from decreasing access to agricultural land (FGDs G1–G12) to increased food prices in the area (FGDs G1–G12) to low prices for fresh oil palm fruit (Interview G5; FGDs G11, G12). Other sources of criticism are low wages (FGDs G1–G3, G11), casual labour contracts (FGDs G1–G3, G5, G7, G11), a lack of corporate social responsibility (FGDs G1–G12) and inadequate and late compensation (FGDs G1–G10). Nonetheless, in most of the focus group discussions participants did not deny the existence of benefits like employment creation (FGDs G1–G4, G7–G12), better road infrastructure (FGDs G1–G4, G7, G8, G10–G12), electricity (FGDs G1–G4, G7, G8, G12) and improved health and schooling facilities (FGDs G1–G8, G10–G12).

Criticism is not limited to GOPDC but includes the chiefs and the government. As a focus group participant said, ‘the chief has misled [us], the investor could not know. A portion of blame can be also given to the government’ (FGD G4). Given the crucial position of chiefs, benefits for the local population are not institutionalised but rather depend on chiefs' goodwill and capacity to negotiate.

Land governance and land acquisitions in Kenya

After independence the dual system of land tenure – consisting of statutory and customary tenure with a multitude of (sometimes contradictory) statutes (Republic of Kenya 2009) – was maintained. Land remained a source of conflict, particularly in the case of ‘elite land grabbing’; that is, fraudulent allocation of public land to economically or politically influential people (Republic of Kenya 2004a; Manji Reference Manji2012), or the 2007/2008 post-election violence that is thought to have been fuelled by land issues (Kanyinga Reference Kanyinga2009).

Today, there are three categories of land: public land (about 13% of the total land surface), private land (about 18%) and community land (about 67%) (Republic of Kenya 2004b). There are approximately six million titles on private land (stemming from both public and community land) (Interview K15) and a great deal of fraud surrounding them: often, there are numerous titles for one piece of land.

At the time of writing, Kenya is in the middle of a land law reform process (Manji Reference Manji2014).Footnote ⁸ The policy road map is outlined in the National Land Policy of 2009 (Republic of Kenya 2009) and in the new Constitution of 2010 (Republic of Kenya 2010, Art. 60 (2); Glinz Reference Glinz2011) – high hopes are placed on both. However, this only partly enacted constitution adds to the confusion about land management, as old and new constitutions coexist.Footnote ⁹

The government encourages investors in agriculture and facilitates the process through the Kenya Investment Authority (Interviews K8, K23). Investors usually take long-term leases to secure access to land for up to 99 years (Interview K3). Who the investor will negotiate with depends on the type of land targeted. Since our case study targets community land, we concentrate on the latter in what follows.

For community land, the county council or another mandated institution negotiates with the investor. These local authorities are also entrusted with informing the involved local population. However, whether the population is informed about an investment largely depends on individuals in these institutions (Interview K23), as the National Land Policy states: ‘In addition, it [the institutional framework] does not adequately involve the public in decision making with respect to land administration and management, and is thus unaccountable’ (Republic of Kenya 2009). Until 2015, the new constitution stipulates that the Community Land Bill – which is available in a zero draft version – must be enacted (Republic of Kenya 2011). Administration of community land is then to be handled by community land boards.

In all cases of investment in land – public, community or private – the Ministry of Lands has to approve the transaction, register the land and issue a lease certificate. Once the lease has been taken and before the project actually starts, the investor has to undertake an Environmental Impact Assessment (EIA) with the National Environment Management Authority (Interview K5). The EIA includes social aspects, and involves the adjacent population. It has to make a clear statement of expected impacts and mitigation measures. The Water Resources Management Authority handles water usage rights and water licences (Interview K21).

As a result of a tedious official process and a confusing legal situation in Kenya, many investments skip official procedures and come into the country through high-level personal contacts (Interviews K15, K23). For instance, there is the case of a Qatari investment that was negotiated on the government level. Public pressure caused this deal to fail (Interviews K4, K15, K23).

Process of acquiring land in the case of Dominion Farms

The large-scale rice producer, Dominion Farms, is ‘an investor who came in through the back door’ (Interview K15) and exhibited a rather unusual way of entering the country. Dominion Farms is located in the area of Siaya and Bondo District in Nyanza Province. The community land is held in trust by the respective county councils. Formerly, seasonal flooding meant that the swampland adjacent to Lake Victoria could only be used seasonally and few people were living on the land. The community used the land for grazing animals, fishing and agriculture in the dry season. Local authorities have had plans to develop the swampland for agriculture for a long time; however, all former projects had failed (Interviews K11, K12, K14). Dominion Farms, a privately held US-investment, took over the land from the parastatal, Lake Basin Development Authority, in 2003 (Interview K12). Dominion holds a 25-year lease of 6,900 hectares that it has gradually been reclaiming, with about 1,500 hectares being in use in 2011 (Interview K9). The owner claims God sent him to Africa to help poor people (Interview K9). When Dominion first came to Kenya, the owner looked for support in the highest political ranks of the country and approached Oburo Odinga, Member of Parliament for the region at the time. Oburo Odinga approved the investment and linked Dominion up with the Investment Promotion Centre. This in turn facilitated contact with the county councils (Interviews K16, K25). In 2003, Dominion signed a Memorandum of Understanding (MoU) with the County Council of Siaya and the County Council of Bondo (Dominion Farms et al. 2003).

The local community was informed through church channels – in the words of one interviewee, ‘they used religion to manifest the investment’ (Interview K16). The owner went into partnership with a local priest and held services in the area to inform the population about the project (Interview K10; FGDs K3, K7). This priest later became MP in Kisumu Town – some claim through support and for the benefit of Dominion (Interview K15).

Whether Dominion complied with the law when they negotiated the MoU and whether they did their EIAs as required is impossible to reconstruct from hindsight. Dominion and the National Environment Management Authority claim that EIAs were conducted in an orderly manner (Interviews K9, K11–K13, K17, K24, K25). However, others argue that EIAs were not done properly. Accusations have been made that official documents on public consultation were prepared in retrospect (Interview K16) or that officials were bribed (Interview K15).

Implications of Dominion Farms

In the case of Dominion Farms, the information we have on displacement is somewhat contradictory: most focus group interviewees and participants stated that no one was living on the land and that only farming activities took place (Interviews K9, K10, K15; FGDs K2-K7). However, during a focus group discussion with permanent employees of Dominion, a participant claimed that people ‘next to the lake […] were displaced but they agreed with Dominion and were paid’ (FGD K8). This was confirmed by one female participant during a focus group discussion who claims she was displaced from the area around Lake Kanyaboli (FGD K1). Hence, we can deduce from the information obtained in our focus group discussions that displacement occurred in only very few cases around the lake. Even if the number of people displaced was limited, the land used by Dominion blocks routes and is no longer available for communal use such as pastoral activities, fishing or seasonal agriculture during the dry months (Interviews K10, K11; FGDs K2, K8).

Although displacement was initially a minor problem, it continues to play a role due to the fact that Dominion's clearing and draining of the land has rendered it arable, which has seen more and more people move into those areas (Interviews K9, K10, K11; FGD K1). This has led to Dominion calling on the police and local authorities to drive these settlers out (Interviews K1, K10). Many blame Dominion for this messy situation; others hold the government responsible (FGD K1).

Unlike in Ghana, compensation was a minor issue since displacement did not affect many families. Some have estimated that only a few people received compensation (FGD K8; Interviews K12, K15, K16).

Generally speaking, an obligation to provide compensation only emerges if the land in question is privately titled; this is not the case with community land where the county councils are responsible (Interview K7). In the MoU, the county councils oblige Dominion Farms ‘to identify and set aside at least 150 acres for each of the Councils for the use of the local community’ (Dominion Farms et al. 2003). Although a senior official in the County Council of Siaya has confirmed this (Interview K 12), a lawyer familiar with Dominion Farms explained that ‘the main problem is that Dominion wants to take back the 150 acres. Dominion is saying that this was the agreement. The problem is that the boundaries of the 150 acres are not clearly defined’ (Interview K16). There was no obvious reference to these areas in any of the focus group discussions. However, conflicting land claims were raised numerous times and represent a major issue in the area (Interviews K1, K9-K12, K23; FGDs K1, K2, K5, K8). Besides this, the MoU requires Dominion Farms to rehabilitate ‘at least one public primary school and at least one public health facility for each of the Councils to Government standards' (Dominion Farms et al. 2003). Both focus group discussions provided ample evidence of hospital and school improvement, which we discuss in more detail below.

During most focus group discussions and interviews, frustration about the lack of compensation was expressed (Interview K10; FGDs K4, K5). Even though Dominion Farms does not hold any official responsibility to compensate for community land, the community still has a sense of ownership and feels betrayed.

The local population's perception of Dominion Farms changed over time. In the beginning, there was largely a sense of enthusiasm with regard to Dominion Farms – clearly the most influential project in the region. However, there were fewer employment opportunities once the project moved from the construction phase to actual farming activities, which saw frustration set in amongst the community. As one focus group participant explained, ‘the negativity came in 2006 during the transition between construction and farming when most of the workers became redundant and they could not all continue working with Dominion’ (FGD K8). Strong resistance to the project amongst community members (see for example Ochieng Reference Ochieng2011) has increased over the last few years (Interview K10).

Today mainly adverse impacts, such as the loss of access to land, food insecurity, and damage to health caused by chemicals and working in the rice fields, are at the centre of the debate. While statements like ‘Of course Dominion is very negative – that I have no doubt about – when they came they were good but they have kept on deteriorating year by year’ (FGD K5) were frequent in conversations with affected communities, positive impacts could not be denied at the same time. Long-term improvements in employment, and in infrastructure, such as roads, access to electricity, health centres and schools, were named in particular (Interviews K10–K12; FGDs K1–K8). According to the season, between 200 and 1,600 permanent, contract and casual employees are working for Dominion (Interviews K9, K14).