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Opinions of Saturday, 28 August 2010

Columnist: Otchere Darko

Should Stools Continue To Hold Community Lands In Trust For The People?

If, after colonisation, the “Nation-State” of the Gold Coast Colony, and now Ghana, replaced “Community-States” that existed in this part of the world before colonisation, should it not be in the “Nation-State”, instead of community stools or skins, that lands that are collectively owned by communities in Ghana be vested on behalf of, and in trust for the people?

By: Otchere Darko

INTRODUCTION: It should be noted that the term “community lands”, as used in this write-up, does not include lands that are individually held either as freeholds or as leaseholds by individual persons, families, companies, organisations and bodies, or by institutions other than the “Institution of Chieftaincy”. The term also excludes “Public Lands” that belong to the Nation-State of Ghana and institutions that are part of it and which have all been vested in the President of Ghana who holds them in trust for the people of Ghana in accordance with Article 257 of our current Constitution. It should further be noted that the term “Nation-State” has deliberately been used in this article to stand for the “State of Ghana”, as opposed to the term “State” which is invariably used in Ghana to refer also to “Community States” like “Adansi” or “Akwapim” or “Akyem Abuakwa” or “Denkyira” or “Ga Adangbe”, etc. This write-up is not intended to attack chiefs or the Institution of Chieftaincy. Instead, it is intended to find ways to bring this ancient institution and its members into modern Ghana Public Administration and become a clear part of the decision making processes that affect local communities, instead of embellishing the institution in “false robes” and allowing it to “pontificate”, wrapped in, and encaged by a system of archaic customary laws that have themselves been either marginalised or swallowed up by constitutional and other forms of statute law. This write-up is also part of the author’s search for ways to bring the country together by addressing issues that seem to underlie many of our inter-ethnic chieftaincy disputes. The writer also believes that, in the distant or recent past, the question above engaged the “inner” minds of all or most of our past and contemporary leaders who could not muster courage to bring it out for public discussion and, therefore, bringing it up now for some form of open discussion on this forum is part of the aim of this writer.

WHAT THE CONSTITUTION HAS DONE: In our current Constitution, the term used by Article 267(1) to describe the “community lands” that this author is talking about is “stool lands” vested “in the appropriate stool on behalf of, and in trust for the subjects of the stool in accordance with customary law and usage”. Currently, these stool lands that are held on behalf of, and in trust for the people in traditional communities by traditional occupants of stools and skins are administered by a Public body called the “Office of the Administrator of Stool Lands”. This body keeps separate accounts on all stool lands and collects all rents, dues, royalties, revenues and other payments that are due these stool lands; and pays these monies into such accounts, out of which it makes disbursements in accordance with the terms of the Constitution as laid down in clause 6 of Article 267. It follows from this that even though stool lands belong to communities on behalf of whom, and for whose trust they are held by stools, revenues from them are not controlled by the communities or the traditional occupants of the stools in which they are vested. For example, out of every hundred cedis of stool revenue that is collected by the “Office of the Administrator of Stool Lands”, only a little over forty cedis go to the stool and the Traditional Authority concerned. The remaining approximately sixty cedis go to the Local Authority within which the stool lands are situated, with ten cedis out this going to the “Office of the Administrator of Stool Lands” to cover its administrative costs.

AS A CONSEQUENCE: Following from this “overlord role” of the Office of the Administrator of Stool Lands, it is evident that even though chiefs are said to hold stool lands in trust for their communities, they still do not exercise full control over revenues accruing to such lands. Neither do they receive even half of the revenues from stool lands. This shows that the advent of the Nation-State has already changed the way “community lands” operate in Ghana today, apart from the fact that they continue to be owned by the people in the communities where they exist, and are held in trust for them by their “traditional rulers”. The current arrangement is strange because it accepts the notion that a chief holds custody of stool lands on behalf of, and in trust for his subjects; but, at the same time, it imposes an external non-traditional body to administer the revenues from these stool lands. It does become difficult and even seemingly weird, as a matter of fact, to understand why the Government should choose to take over the administration of revenues from stool lands that are under the custody of chiefs but then leaves these chiefs to retain their custodial roles over the said lands that generate such revenues.

Partly, it is the weirdness of this aspect of handling of stool lands by the Government that has prompted this article. My other concern arises from the numerous land problems created by the current complexity of ownership of a whole array of various lands that are not “Nation-State owned” and which are constantly changing hands in problematic ways, some of which sometimes result in incidences of wasteful demolitions and fatal personal clashes.

PROPOSITION: It is for this second reason, in particular, that I urge the Government to find a better way to deal with, and streamline land ownership in Ghana generally. Ghana needs to find a way to absorb all “community lands” into the definition of “public lands” while, at the same time, it finds a way to give individual traditional communities concerned initial control over all decisions concerning the use, transfer, and administration of their “community lands” and the revenues that accrue from them, as part of and falling within the general Local Government structures in the country. *My suggestion in this respect is that all lands that are not officially registered as “individually owned” as either leases or freeholds; and are also not owned by persons or families or companies or other individual entities; and which also are not currently owned by the Nation-State of Ghana or any of its subsidiaries; should all become “community part” of “public lands” and should be vested in the Nation-State through Local Authorities that would hold such “community lands” on behalf of, and in trust for the people in the communities that own the stools or skins in which these lands are now vested. That would mean that from then on only Local Authorities, and not chiefs, would have the power to deal with the transfer of all “community lands”. That would also allow land transfers to become more simplified, with Local Authorities being responsible for the transfer of the “community part of public lands” in accordance with laid-down Government procedures, while lands that are registered as “individually owned” in all communities in Ghana would be transferred by individual owners through laid-down statutory procedures that would be applicable nationwide. By this arrangement, any land that belongs to “the subjects of a stool” in any community should be registered as “community part of public lands” and should be held on behalf of, and in trust for the people in that community by the Local Council that embodies that community.

PRE-CONDITIONS: For this arrangement to be accepted and be able to work with as little friction as possible, it might be necessary for one more Local Government tier to be established below the current District and Municipal Council level. This new tier should be “Town Councils” that should correspond with traditional community-units that are traditionally referred to as “towns” and which have “traditional rulers” or such positions that are recognised by the various ancient Ghanaian traditions and customs. As part of this arrangement also, the main traditional rulers of these towns that are going to have Town Councils should become “paid members” of these Town Councils and should also be automatic members of the Municipal or District Councils that these towns fall under. In this way and by this arrangement, stool lands would immediately be vested in the Town Councils of the towns under which such stool lands fall. These Town Councils would become: (1) the first tier of our Local Government system; (2) the accredited “basic” and “immediate” local representative of the Nation-State; and (3) the immediate “local authority” vested with constitutional power to hold the “community part” of “public lands” in all communities on behalf of, and in trust for the peoples in the different traditional communities in Ghana. By this arrangement, Town Councils, as Public bodies, would replace Chiefs as custodians and trustees of “community lands” that are currently otherwise referred to as “stool lands”; and would immediately hold on behalf of, and in trust for the people all “community lands” that collectively belong to them. By this arrangement too, the Nation-State of Ghana, represented by Local Authorities of which Town Councils would form their first tier, should become the “ultimate and overall custodian and trustee” of all “community lands” in all parts of the country.
Again, for this new arrangement to be accepted and be able to work, the Government has to compensate chiefs who would be required to cede their current custodial role over “community lands” to the Nation-State through Town Councils of Local Authorities. This compensation should be different from the monthly remunerations that would arise from the fact that, under the proposed arrangement, chiefs officially would be part of the Local Government system and should work full time for monthly salaries, just like all other public office holders. The compensation, though, should be a one-time lump sum.
DISCERNIBLE BENEFITS: *This arrangement, in my opinion, would be better than the current system that makes occupants of stools [and skins] the custodians and trustees of “stool lands”, even though it is a “non-traditional” outside public body that administers, disburses and controls the revenues from these “stool lands”.....a current system that creates, on one hand, a really weird situation of “trust and mistrust fused together” over revenues from stool lands while, on the other hand, it still leaves chiefs “free” to exercise exclusive and absolute authority over the transfer of “community lands” which they hold on behalf of, and in trust for their subjects. *Even though through this arrangement the Nation-State, through Local Councils, would be the one that holds all “community lands” on behalf of, and in trust for all the peoples in all communities in Ghana, local people and their chiefs would still have control over lands that belong to them historically, in view of the fact that the immediate custody over such “community part of public lands” would be vested in Town Councils that would comprise of only the chiefs and the elected subjects of individual towns concerned. *Through this arrangement, it is the entire people of the town through their elected Town Council members that would deal with all matters concerning “community lands” including land transfers, instead of leaving these matters to the chief of the town only to deal with. This would make issues relating to these “community lands” more public, more transparent, and more accountable than they are now. *The creation of Town Councils to facilitate this arrangement would have the added bonus of bringing Local Government closer to the doorsteps of the people and, thus, help to give fuller meaning to the concept of decentralisation in Ghana. *By shifting custody over “community lands” from chiefs to the Nation-State through immediate Town Councils, land administration would be brought one step closer to the goal of removing all the problems associated with land ownership and transfer in Ghana. *By this arrangement that includes the full incorporation of chiefs into Local Government, Ghana would be making a better use of an ancient institution that cannot be discarded but which today has become a big “white elephant”, with its associated notions like “traditional rulers” and “traditional authorities” sounding as technically “empty” as they are politically “illusive” and “deceptive”. *By disbanding the “stool lands” concept as it exists now and removing chiefs from direct and exclusive trusteeship of “community lands” in their “traditional areas, Ghana will be removing one of the major causes of, and motivation for chieftaincy disputes. *Finally, by creating a new lower tier of Local Government structure and incorporating chiefs directly into our system of local administration, Ghana would be manufacturing its own brand of Local Government that fits its traditions and culture and would be “baking a ‘Whiteman’s bread’ using Ghanaian corn, instead of using wheat imported from outside”, [to put this metaphorically].

BEFORE FULL ENGAGEMENT OF CHIEFS: I have to add as an appendage, though, that before the entire Institution of Chieftaincy can be properly, consensually, and effectively incorporated into our modern system of public administration without clashes of values, whether at local or central government level, it is essential that this ancient institution is asked, [or made] to reform itself and get rid of those parts of it that are inconsistent with our modern values and also to modify and rectify the definitions and other features of it that have become the root causes of chieftaincy disputes which are actively destabilising, in epic litany, the peace and progress of many ethnic communities in Ghana and those of the whole Nation. The numerous on-going chieftaincy disputes nationwide, including that of Dagbon State, should be constant reminders to us that we Ghanaians, like a “blind man”, may be pardoned for being unable to see literarily what is happening around us, [so to speak]; but we cannot be pardoned for not “feeling” and “addressing” the many cuts and bruises that are being inflicted on us, as ethnic communities and as a Nation, by the many “horrors” from this “rusty” and “outdated” but “polishable” and “reusable” ancient institution.

Source: Otchere Darko. [The Writer has a “traditional root”; but he also strongly believes that this ancient heritage should undergo modifications for it to fit into our “new” Nation-State of Ghana.]