Ghana Land Seminar presentation 13-14 Oct 2016

MAJOR LAND ACTORS IN LAND ADMINISTRATION AND DEVELOPMENT IN GHANA

THE CRITICAL ROLES EXPECTED UNDER THE ENVISAGED LAND BILL/ACT FOR GHANA

SURV. ISAAC BONSU KARIKARI, PhD, FGhIS1ST EXECUTIVE DIRECTOR, KARICEL FOUNDATION

OASL’S 20TH ANNIVERSARY CELEBRATION (LAND CONFERENCE)THEME: SUSTAINABLE LAND AND NATURAL RESOURCES IN GHANA: THE ROLE AND RESPONSIBILITIES OF STAKEHOLDERSGHANA INSTITUTE OF MANAGEMENT AND PUBLIC ADMINISTRATION (GIMPA), ACCRA. 13TH – 14TH OCTOBER, 2016

OUTLINE

1. THE ROLE OF THE MINISTRY OF LANDS AND NATURAL RESOURCES• The LAP, Land Agencies and Bureaucracy • The Working Group for the Land Bill – 5th Draft?

2. THE ROLE OF THE LAND SECTOR AGENCIES• The Lands Commission – CSAUs and GELIS and Encroachments• The OASL – CLSs and Registration of Skin, Clan and Family Lands• The TCPD – National/Regional Spatial Development Frameworks(NSDFs/RSDFs)

and Local Plans and the role of Customary Land Owners3. THE ROLE OF ACTORS IN LAND ACQUISITION AND LAND DEVELOPMENT4. THE ROLE OF GhIS AND THE PRIVATE SECTOR (REAL ESTATE DEVELOPERS)

• As Major Catalysts …5. TYING IN ON THE LAND BILL (CURING SOME MAJOR MISCHIEFS)

• Some Stakeholder Concerns (the World Bank and the Parliamentary Select Committee)

• Disparate Data and the NSDI • Attitudes and Not Necessarily Penalties for Infractions

6. RECOMMENDATIONS7. CONCLUSION

THE ROLE OF THE MINISTRY OF LANDS AND NATURAL RESOURCES (1)

• The LAP, Land Sector Agencies (LSAs) and Bureaucracy: Letting Civil Service bureaucracy take over Projects results in not ensuring timely deliverables or meeting set targets. The Land Act should have been operational by now!

• The Working Group (WG) for the Land Bill – 5th Draft?: The WG has an onerous task of getting it right from the outset. What the WG has been mandated to do is what we may call ‘action research’ that both adds to knowledge and applies such knowledge in practice, BUT NOT ENTIRELY RULING OUT THE UNDERPINING ELEMENTS OF SOME BIAS (ATTITUDINAL) on the Group’s part.

PROPOSED LAND BILL (LB)INDICATORS/OUTCOMES

Preparatory Studies Completed; Legal and Regulatory Reforms Underway = (ROADMAP) + Budget:$ 400,000.00?

Stakeholders Reached

Executive Arm of Government’s Approval sought

•166 Laws / Decrees/Statutes…

•Existing And Proposed Policies On Land

•Customary Best Practices

•International Best Practices

›10,000(?) People (Inc. CSOs And Nananom) Reached Through Sensitization And Public Education Efforts

•Attorney General/Bar Association’s Views, Especially, Sought On Bill

Land Act Passed

•All Laws Codified Or Harmonized

•All Major Mischiefs Cured

•Tenure Security Increased

•Planning Controls (NSDFs) Implemented And Enforced

•NSDI Operationalised

Effective Property Rights System Through Requisite Legislative Instruments (LIs)

Expected Outcomes

Clarification and Formalization of LB– ParliamentarySelect Committee

Regulatory, Legal And Other Prep Work

Public Outreach Cabinet Input/Approval


•VESTING UNLAWFUL UNDER THE 1992 CONSTITUTION? Memorandum To Bill: “The Vesting of land is DISCOURAGED in line with Article 267 of the Constitution and the decision of the Supreme Court in Nii Ashong Omaboe v Attorney General and Lands Commission. In furtherance of this provision is made for the progressive and structured de-vesting of vested lands in appropriate cases. Article 267 (1): “All stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust for the subject of the stool in accordance with customary law and usage”.

Clause 260 of Draft Bill: Vesting of Stool Lands“(1) On the coming into force of the 1992 Constitution it is UNLAWFUL to vest stool or skin land in the Republic. (2) After the commencement of this Act it shall be unlawful to vest clan or family land in the Republic”.


In my view Section 5 of Article 257 of the Constitution does not debar vesting in its totality as it states that Sections 3 & 4 of this article (dealing with the de-vesting of all lands in the Northern, Upper East and Upper West Regions) shall be without prejudice to vesting by the government in itself of ANY LAND which is required in the public interest for public purposes”.

Now, could de-vesting be done only by constitutional amendment OR the passing of the Land Act by Parliament would suffice? –Article 289 (2) (a) of the Constitution states: “This Constitution shall not be amended by an Act of Parliament or altered whether directly or indirectly unless (a) the sole purpose of the Act is to amend the Constitution…” ** Clause 262** - (LC to take inventory of vested lands and recommend to President for EIs to be published and gazetted).

THE LANDS COMMISSION (1)•Before the Act passes [LSAs] business processes should be transformed: CSAUs (Front Office) + GELIS (Back Office) ► OUTCOME

•The Commission should be Proactive: For Example, on Encroachments (See Clause 228 (1) & (2)): Whilst it is true that a person who unlawfully occupies public lands does not acquire an interest in or right over land by reason of occupation (Limitation Act, 1972 (NRCD 54)), the draft Bill, at this stage, appears not to address the issue of how to deal with such encroachers; or how to prevent encroachment in the first place, requiring that the Lands Commission becomes more proactive in its work (ATTITUDE). (The World Bank, for example, has OP 4.12 on involuntary resettlement, requiring that compensation is paid to ‘project affected persons’ (PAPs) or encroachers for loss of livelihood or income). Should the LC learn from best practice? **Case of the NI and the Land Valuation Division.

ROLE OF LAND SECTOR AGENCIES

“Cold War” between CSAU and Back Office staff resulting in a “wait and see” ATTITUDE of back office staff – SOURCE: LC ISM 2016 REPORT

Advanced document management system and full automation (GELIS) Required (Example of Officers trained in Norway).

THE LANDS COMMISSION (2)CLAUSES 82 – 197… TITLE AND DEEDS REGISTRATION•Under security of tenure and protection of land rights, Clause 5 (3) (b) of the National Land Policy states: “speed up title registration to cover all interest in land throughout Ghana and phase out deeds registration”. •MiDA’s Land Facilitation Activity (LFA), under its Agricultural Project, conducted a pilot program for area-wide registration of rural lands, testing the Title Law for the first time in a rural setting; and registering usufructuary rights to land at the Awutu/Senya District. Once this is successful, could Ghana now replicate this in other regions and eventually cover the entire country with Title Registration?•I understand that the OASL might have studied MiDAs work in the CLSs and have come out with the Rural Parcel Demarcation exercise under LAP (ATTITUDINAL).•However, I see a tacit approval of the continued co-existence of both title and deed registration in parts of Ghana in the draft Bill, as it stands now, without any attempt to follow the National Land Policy (ATTITUDINAL?).


BENEFICIARY OF TITLE CERTIFICATION IN AWUTU SENYA UNDER PNDCL 152

THE OASL (1) •Customary Land Secretariats (CLSs) This innovation should ignite the debate that LSAs should only be FACILITATORS or REGULATORS in land administration in Ghana, where Nananom would eventually be made to record and register rights to land themselves; and the OASL, for instance, would provide guidance and support in creating a national database for such transactions? What would be the LSAs ATTITUDE to this recurring subject?


THE OASL (2)•On Registration of Skin, Clan and Family Lands Clause 176 (3): Where there is a change of the occupant of the stool or skin or tendana, or head of clan or family, or any other person authorized by the stool, skin, clan or family to administer land or interest in land, that occupant, tendana, head or person shall notify the Land Registrar in writing and the Land Registrar shall if satisfied, make the appropriate change in the entry. Due Diligence implied?

•Why not make explicit the role of the National House of Chiefs in the first instance? Should not ‘gazetting’ of Chiefs be the main basis for satisfying the Land Registrar where there is a change of occupant for Stools? Could this be made explicit in the Act … so if the Registrar is using discretionary powers we will all know? Could the Ascertainment of Customary Law Project (ACLP) be a pointer to this argument, even though not having a comprehensive coverage yet?


The TCPD and Customary Land Owners (1)•The Land Use and Spatial Planning Bill and Legislative Instrument (LI)The passing of the Land Use and Spatial Planning Act will make TCPD the LAND USE AND SPATIAL PLANNING AUTHORITY (ACT 925). This is good for Ghana. Success predicated on attitudes?

•NSDFs/RSDFs and Local Plans And Role of Customary Land OwnersClause 115 (6): “…the Lands Commission may for justifiable reasons authorize the Registrar in writing to register a parcel of land falling within a DEFINED AREA WHICH HAS NO APPROVED PLANNING SCHEME”. A practical proposition but…•the Bill must take into consideration the spatial development frameworks the Town and Country Planning Department is turning out. All LAYOUTS, arising out of Local Plans must normally be submitted by land owners to the MMDAs for statutory approval based on these frameworks for them to become PLANNING SCHEMES. (note: landmark Hohoe High Court case on definition of stool lands and ensuing proliferation of layouts on ‘family lands’ in Accra).

•There should be no leeway whatsoever that would further perpetuate the already chaotic situation of haphazard developments based on conflicting layouts (ATTITUDINAL). Once a layout is approved, it must suffice for the subject area.


PREPARATION OF LAND USE PLANS

THREE TIER MODEL

The TCPD and Customary Land Owners (2)

Question: Could we introduce any penalties for infringement on the part of land owners if no layouts are submitted for approval; and developments are seen to be taking place based on such unapproved layouts, apparently not in conformity to the approved spatial development framework for the area in question?


THE ROLE OF ACTORS IN LAND ACQUISITION AND LAND DEVELOPMENT (1)

1. Availability of Funds for Payment of Compensation: Clause 230 (1) Compulsory acquisition of land shall not be undertaken or facilitated by the LANDS COMMISSION unless the INTENDED USER of the acquired land proves in writing to the satisfaction of the Commission that the FUNDS FOR THE PAYMENT OF COMPENSATION and other costs associated with the acquisition have been PAID INTO AN INTEREST YIELDING ESCROW ACCOUNT.

2. The role of the SITE ADVISORY COMMITTEES (LI 230) - (protection from deprivation of property – Art. 20 (1) (b) of the Constitution - “the necessity for the acquisition is clearly stated and is such as to provide reasonable justification for causing any hardship that may result to any person who has an interest in or right over property” … the question of suitability or otherwise of the acquisition …

THE ROLE OF ACTORS IN LAND ACQUISITION AND LAND DEVELOPMENT (2)

1. Protection of Land by Intended User: Clause 234 (a) Land to be Demarcated, Surveyed and Entered on Register – “Upon the publication of the notice pursuant to section 233 that any land is needed for the purpose specified in that notice, the LANDS COMMISSION shall: cause the areas affected by the compulsory acquisition to be demarcated and surveyed and, unless this has already been done to satisfaction of the Commission”.

2. What happens after survey? I guess Clause 14 of the draft Bill on ‘protection of land and interest in land’ tries to deal with this by banning the use of force or armed persons (especially LAND GUARDS). However, the Bill appears to be silent, after allocation of acquired lands, on the need to secure those lands, involving the construction of, for example, of some fence walls on the perimeters of lands to cure the added mischief of encroachments; or for allowing such acquired lands to lie fallow for long periods of time.

Ghana Institution of Surveyors (GhIS)•Electronic Conveyancing

The GhIS, I am aware, has submitted some papers to the WG of the draft Land Bill on electronic conveyancing. Clause 74 of draft Bill still states, on the qualification for Electronic Conveyancing, states that: “An electronic conveyance shall only be made by a qualified legal practitioner who has been granted access to the information system by the Commission”.

We know for a fact that the Conveyancing Act of 2002 for England and Wales, for instance, opens this up to professionals such as “solicitors, licensed conveyancers, estate agents and mortgage lenders who will be able to enter such agreements on meeting certain criteria”. … even though under Act 1960, (ACT 32), a [paper] conveyance (as against an electronic or paperless conveyance) in Ghana shall only be prepared by a legal practitioner in terms of the legal profession. The Institution’s role, as a MAJOR CATALYST, would be to push for the WG of the draft Land Bill to look at this again?

Real Estate Developers • Awaiting Outcomes

The private sector would eagerly await the outcome of the Land Bill/Act, hoping it would bring sanity in the documentation process, especially.

THE ROLE OF GhIS AND THE PRIVATE SECTOR (REAL ESTATE DEVELOPERS)

TYING IN ON THE BILL (CURING SOME MAJOR MISCHIEFS) (1)

•Some Stakeholder Concerns (the World Bank and the Parliamentary Select Committee)•On the WORLD BANK, the MLNR must begin to reduce tensions between GoG and Development Partners in the running of Projects funded by such partners, whether through loans or grants. Projects have process milestones, targets, outputs and outcomes that ought to be mutually met. Taking antagonistic stance, when clearly we ought to do better, is an affront to good partnership with our international donors. Could we get LAP-3?

•On the other hand, the PARLIAMENTARY SELECT COMMITTEE role is critical for the parliamentary approval of the Bill. A well-crafted Bill may sail through quickly (Time is of the essence but objectivity and transparency of utmost concern from the very outset).

TYING IN ON THE BILL (CURING SOME MAJOR MISCHIEFS) (2)•Disparate Data and the NGP/NSDI: “The National Geospatial Policy consolidates the Policy documents on National Spatial Data Infrastructure (NSDI), Geodetic Reference Network, Survey and Mapping, and Metadata”. No reference or space is made or given, in the Bill, to this NGP of which the NSDI is assumed to be part, which I understand has been forwarded to the National Development Planning Commission for inclusion in Ghana’s 40-year Development Plan. I hold a different view. The NGP should have been submitted to Cabinet immediately (after the Consultant had finished its work and approved by the Ministry).

•To my mind, it is ‘technically correct’ to send the NSDF to the NDPC since it is to provide a strategic national vision (desired future) for spatial development in Ghana over a twenty (20) year period. The NSDF provides the Spatial Component of the formulation of the 40-year National Development Plan by the NDPC. THE NSDI/NGP is an INFRASTRUCTURE waiting to be ‘constructed’!

NSDI GOVERNANCE STRUCTURE• Executive Role – to steer and

guide the development of NSDI (NSDI Committee);

• Management Role – to co-ordinate the project management of NSDI implementation across the range of stakeholders involved (NSDI Implementation Managers);

• Operational Role – to perform day-to-day administration and technical implementation of the NSDI (The NSDI Secretariat in the Office of the President and an NSDI Technical Team); and

• Advisory Role - teams of experts in specialist fields to provide analysis and recommendations (NSDI Work Groups).

Definition: The technologies, policies, and people necessary to promote the discovery and sharing of geospatial data throughout all levels of government, the private, non-profit sectors and the academic community; and with goals to include standards, geospatial data, metadata, and mechanism for sharing.

SOME RECOMMENDATIONS (1)1.This approach (of having a NSDI) would require a platform, through a clearing house mechanism, with full private sector participation, to reduce data duplication but ensuring optimum coordination and cooperation at all levels. We have been therefore before (National Framework of Geospatial Information Management (NAFGIM)). WE NEED TO PROCEED ON THE NAFGIM ‘TRAJECTORY’ SO WE HAVE A COMMON GEOSPATIAL IMPLEMENTATION FRAMEWORK FOR GHANA. The opportunity comes with this new Land Act.

2.INDEED GHANA URGENTLY NEEDS A SECTOR-BY-SECTOR WHOLE OF GOVERNMENT APPROACH TO GATHERING, SHARING AND PROVIDING GEOSPATIAL DATA/INFORMATION TO IMPROVE BUSINESS AND STRATEGIC PLANNING. There are too many disparate datasets, making nonsense, the survey maxim: ‘capture data once, and use them many times’. The Military, the Utilities etc., are all capturing the same ‘foundational data’ many times, causing wastage and ‘financial losses’, relentlessly and needlessly.

SOME RECOMMENDATIONS (2)

3.THE LAND BILL SHOULD SEEK, UNDER THE NSDI/NGP, TO MAKE THE SURVEY AND MAPPING DIVISION OF THE LANDS COMMISSION THE ONLY INSTITUTION TO PROVIDE ALL BASE MAPS on which all other agencies in Ghana dealing with geo-referenced data are enjoined to overlay (their) requisite thematic layers. [Perhaps, this gives credence to why some people are asking for a Survey and Mapping Authority for Ghana]. I do not have a personal opinion on this, if you should ask me!

4.The current NSDI/NGP Policy document calls for an NDSI LAW, to “encapsulate the key points covered in this policy document and then facilitate the development of NSDI/NGP through its implementation phase”. ALTERNATIVELY, THE LAND ACT COULD MENTION THE NSDI, REQUIRING THAT A LEGISLATIVE INSTRUMENT BE PASSED AFTERWARDS.

SOME RECOMMENDATIONS (3)5.THIS BILL MUST TAKE COGNIZANCE OF ALL EXISTING AND FUTURE POLICES AS FAR AS PRACTICABLE; in this very case, the 1999 National Land Policy (to be amended?) and the NSDI/NGP or the land use and spatial planning Act, for examples; seeking to address current challenges in land administration in the country. Pointers of such policies in the Bill will enable requisite Legislative Instruments to be crafted.

6.THE BILL MUST BE FORWARD LOOKING AND SUSTAINABLE WITH THE VIEW TO ‘CURING MISCHIEF’ IN THE LAND MARKET. The Lands Commission must only deal with lands covered by planning schemes under this new Bill. In this case sustained consultations and education nationwide by the Lands Commission/MMDAs are key for compliance.

SOME RECOMMENDATIONS (4)7.THE BILL SHOULD HAVE A CLAUSE DEALING WITH ENCROACHMENTS, TAKING COGNIZANCE OF INTERNATIONAL BEST PRACTICE. The Lands Commission and MMDAs should be proactive, through their estate management units, in monitoring such occurrences. Otherwise, encroachments must be covered by safeguards to compensate for loss of income or livelihoods once the Lands Commission ‘sleeps on her rights’ for a stated period? The Requisite Legislative Instruments (LIs) should further elaborate on this?8.ON WHETHER GHANA SHOULD GO TITLE REGISTRATION OR HAVE THE TWO REGISTRATIONS CO-EXISTING, THE WG MUST STATE ITS POSITION VERY CLEARLY IN THE MEMORANDUM TO THE BILL, adducing reasons for this position taken (or not taken) to remove any lingering doubts, moving forward on these two type of registrations in Ghana.

SOME RECOMMENDATIONS (5)9. PROJECT UNITS OF LSAS TO INTERROGATE LAND BILL FURTHER AND FORWARD MEMORANDA; AND BUDGET FOR AND CONTINUE SOME ACTIVITIES UNDER LAP: LSAs could still submit memoranda to the Parliamentary Select Committee, if they feel strongly afterwards that certain issues ought to be reconsidered after submission by the WG of the Land Bill.

To my mind, nothing stops the LSAs in setting up PROJECT UNITS, mimicking the LAP (M&E, Procurement, Gender, Research, and Communication… at least) to confront and research into innovation and new technologies.

SOME RECOMMENDATIONS (6)

10.THE MAIN CHALLENGE IS FOR THE LSAS TO HAVE APPROPRIATE MINDSETS AND ATTITUDES.

The issue is not technology per se but the need to refocus on the staff in protecting land rights adequately and permitting those rights to be exchanged simply, promptly, securely and at affordable cost, through appropriate institutional and legal arrangements (e. g. the Land Act) … together with appropriate application of geo-technology.

CONCLUSION – REFLECTIONS (1)I happen to be on the GhIS WhatsApp platform and share with you a member’s thoughts which I find germane to my position that the issue is about ATTITUDES:1. “ May we reflect on the stunted growth of our public

land related agencies with surveyors in charge? The bickering, sabotage, undermining, individual focus, greed, grand standing and sheer peacockery that limit us despite our potential talent and skills?...

2. “Can we reflect on our proclivity for quick fixes to country problems: the Land Title Registration, Lands Department splintering and subsequent hasty amalgamation, LI 1444, Bar Coding, CSAU etc., when these have not been subjected to dispassionate discussion, analysis and reflection on the real needs of our country?...

CONCLUSION – REFLECTIONS (2)3. “Can we reflect on what new technologies

are out there to tap into but which we are limited because we appear to have boxed ourselves into relative irrelevance?…

4. “Can we think of country Ghana as we think and act about our individual [interests]?…

5. “Is there or can we create a leadership drive to assert our rightful place in society”

• THANK YOU FOR YOUR KIND ATTENTIONTHANK YOU FOR YOUR KIND ATTENTION

Environment

Ghana Land Seminar presentation 13-14 Oct 2016