Ghana (2013)

The legal framework lays the foundation for four key elements of the RAP:

• approach to land access and management

• establishing rates of compensation

• determining eligibility for compensation and resettlement assistance, including livelihood initiatives

• establishing mechanics to resolve grievances among affected persons related to compensation and eligibility. 

 

The legal context of resettlement in Ghana is complex. As in many parts of Africa, dual, customary and titled ownership exist. The State has attempted to curtail customary ownership and regulate land administration by legislation, resulting in an often-conflicting legal landscape. 

 

Private sector land acquisition and resettlement related to mining activities is governed by the following: 

• The 1992 Constitution of Ghana, which ensured protection of private property and establishes requirements for resettlement in the event of displacement from State acquisition

• The State Lands Act of 1962 which mandates compensation rates and sets procedures for public land acquisitions 

• The Minerals and Mining Amendment Act of 2006 which allocates all mineral rights to the State and requires adequate compensation for loss of assets due to mineral operations 

 

State agencies oversee various land policies relating to land acquisition, resettlement and compensation. The main agency is the Land Valuation Division (LVD) of the Lands Commission, which oversees compensation regulations, and is the designated authority for settling disputes over property compensation in private sector projects. 

 

The Constitution of Ghana 1992

The Constitution specifically requires resettlement (and not just cash compensation) where land is acquired in the public interest. The Constitution also recognises the right to private property and its protection by the State. 

 

The State Lands Act 1962 and 2000 Amendment

Section 6(1) of the State Lands Act of 1962, and the Amendment Act of 2000, provides that any person whose property is affected by a public project is entitled to compensation, and provides a mechanism by which people not satisfied with compensation may seek redress by notifying the Minister, who refer the case to a tribunal made up of three persons appointed by the President. 

 

The Minerals and Mining Act, 2006 (Act 703)

The legal framework for mining in Ghan his the Minerals and Mining Act, 2006 (Act 703). Regardless of who owns the land in which minerals are situated, exercise of any mineral rights requires a license granted by the Minister for Mines, as the agent of the State for the exercise of powers relating to minerals. The powers of the Minister must be exercised with the advise of the Minerals Commission. This Commission has constitutional authority to regulate and mange the utilisation of mineral resources and to co-ordinate policies in relation to minerals. 

 

The Minerals and Mining Act requires minerals rights holders to affect as little as possible the interests of any lawful occupier of the land. All mining leases state that the lease holder shall not hinder nor prevent members of the local population from exercising certain customary rights and privileges such as hunting, gathering firewood for domestic purposes, collecting snails, grazing livestock, cultivating farms, and observing rites in respect of graves or other sacred areas. Lawful occupants retain these rights as long as their use doesn’t interfere with mining operations. 

 

In accordance with Section 111 of the Act of a ‘Mining Area’ may be designated from time to time by the holder of a mining lease, with the approval of the Minerals Commission. 

Occupants within a Mining Area must ask permission from the leaseholder to erect any building or upgrade crops. 

 

Specifically Section 72 (4) states:

‘In the case of a mining area, the owner or lawful occupier of the land within the mining area shall not erect a building or a structure without the consent of the holder of the mining lease, or if the consent is unreasonably withheld, without the consent of the Minister.’ 

 

Under Section 74 of the Act, a mineral right holder must compensate for any disturbance to the rights of owners or occupiers and for damage done to the surface of the land, buildings, works or improvements, or to livestock, crops or trees in the area of mineral operations and also compensate for the deprivation of the use or a particular use of the natural surface of the land or part of the land. 

 

In accordance with Section 73, the Act requires that the amount of compensation be determined by agreement between the parties concerned, with the approval of the Land Valuation Board (now the Land Valuation Division). In practice, this agreement involves a broad cross-section of stakeholders, including affected farmers, and local traditional and political leaders. If an agreement cannot be reached, the Minister of Mines arbitrates. 

 

The Legal Instrument (L.I. 2175) for the 2006 MMA came into effect on June 12 2012. This sets out the specific provisions for compensating and resettling affected people from mining leases. The LI contains the following sections:

1. Claims for compensation

2. Assessment of compensation

3. Compensation principles 

4. Time for payment of compensation

5. Determination by High Court

6. Resettlement

7. Resettlement requirements

8. Matters to be addressed in resettlement plan

9. Plan formulation

10. Approval of resettlement plan

11. Implementation of resettlement plan 

12. Resettlement Monitoring Committee

13. Surface rights

14. Exercise of surface rights of a mining lease area

15. Interpretation 

 

Other legislation and regulations relevant to the resettlement process include those pertaining to environmental protection and assessment, and architecture and planning, particularly the Town and Country Planning Ordinance of 1945, the Local Government Act of 1993 and the National Building Regulations 1996 (L.I. 1630). These stipulate detailed planning requirements for urban developments, consultations required, as well as mechanics to ensure registration offend titles and allocation of plots with security of tenure. 

 

The Mining and Environmental Guidelines (1986) also provide for resettlement: 

‘Any pre-existing settlement located close to mining operations where the pre-existing inhabitants’ public safety is at risk, or where the inhabitants are subjected to unreasonable nuisance, shall be resettled at a more distant site with at least an equal standard of accommodation and services at the cost of the company.’

 

Land tenure and transactions

Broadly two types of land ownership exist in Ghana these are: state or public lands and private lands. 

State or public lands refer to lands acquired by the State for public use through compulsory acquisition under relevant legislation. These are managed by the Lands Commission. 

 

Private lands are largely under customary ownership by stools, families/clans and individuals. They usually connote some form of communal ownership. 

In between these two broad categories of land ownership are Vested Lands, in which there is a splint in ownership between the State (through management of the lands) and the beneficiary, usually stool/skin.

 

Examples of main categories of interests and rights identified for private lands:

• stool land or alluvial interest: this is where the overall interest is vested in the chief, as occupant of the stool, for and on behalf of the community. The Chief may allocate land to members of the land owning community (indigene) and stranger/migrants for all land use purposes, including farming and building. 

• family land or right os usufruct: This refers to the interest acquired by the indigene of the stool land area by virtue of being a member of the family/clan. It is inheritable and can be passed from generation to generation without consent from the custodian of the stool. 

• Freehold Land or Alienation Holder: this interest arises where a person has purchased land outright from the stool or family; in which case he possesses the alluvial title in land and thus holds the paramount interest in that land. This is usually held by migrant/settler farmers who came to live in the community many years ago. An alienation holder can use or allocate land (subject only to relevant national laws) without the consent of any authority. 

• Customary law leasehold or Tenancy/sharecropping interests (for agricultural purposes): These are interests in land in which land owners and farmers agree to share proceeds of a crop in a predetermined ratio. ‘Abunu’ involves crop sharing into two equal parts, while ‘Abusa’ is sharing into three equal parts. In both cases, the farmer may continue to crop on the land for the life of the crop, or if fire engulfs the farm and the crops are destroyed; then the land reverts to the land owner. There could be a renegotiation for a fresh start or the farmer could leave without any obligation on both parties. However, where the farmer crops till the end of the life of the crop the land reverts to the land owners. Customary land transactions involving farm sharing does not transfer ownership in the land. When an agreement is made between the landlord and a farmer with respect to sharing a farm, without explicitly indicating an intention to transfer ownership it simply means to own and cultivate the land for the life of the crops (common with cash crops). Unless certain customary rites are performed to signify an actual transfer or a gift of the land to another party, the sharing does not intend to transfer ownership rights on the land. 

• Customary land leasehold (for non-agricultural purposes): These are interests acquired for other non-farm activities. e.g. for buildings. These may be acquired from stool, family or freehold lands. It is usually for a pre-determined number of years, and for a specific use. 

 

Land Tenure Issues

The customary practice of land allocation by traditional authorities results in the provision of land to a variety of users through a range of mechanisms. Very often, being communal lands, other members of the wider community have lesser rights such as rights of access and rights to collect mushrooms, snails and medicinal plants which have grown naturally. Customary land use rights are sometimes enshrined in writing, and sometimes left to the memory of responsible persons. 

The Government of Ghana has at various times sought to formalise the process of land tenure, including the definition of land titling processes and the allocation of responsibility to a number of land administration institutions, including the Lands Commission, Land Title Registry, Survey and Mapping Department, Land Valuation Division, Department of Town and Country Planning and Office of the Administrator of Stool Lands. 

The government has now attempted to streamline land administration in the country by amalgamating the various land institutions (Land Commission, Survey Department, Land Title Registry and Land Valuation Division) into a single umbrella body known as the Lands Commission. 

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Gaps with IFC PS 5:

1. Timing of compensation: The revised mining act is now broadly in line with IFC requirements

2. Calculation of compensation: national law requires approval of government valuers while IFC standards require full replacement cost 

3. Squatters: no specific provisions - all PAPs present on the cut-off date are eligible for RAP entitlements

4. Resettlement: displaced persons are to be resettled on suitable land with due regard for their economic well-being and social and cultural values

5. Livelihoods and resettlement assistance: national law does not specify assistance, but IFC requires targeted assistance in terms of livelihood supports

6. Vulnerable groups: no provisions

7. Consultation and information disclosure: a resettlement monitoring committee must be established with community participation

8. Grievances: if an agreement cannot be reached, the relevant minister arbitrates

9. Monitoring and evaluation: a resettlement monitoring committee must be established with community participation