Chiefs and Their Subjects

The framework for customary norms and interests shifts in the communities is based on the current formulation upon which land rights are defined in state law which is the Land Titles Registration Law

42

An alcoholic spirit 43

108

1986. This expresses a customary distinction between the radical ownership of the land itself and

rights or interests in the land. In most countries ownership of the land is held by the Head of State in trust for all members of the nation. In Ghana this radical title is referred to as allodial title and in stool and skin areas it is generally vested in Chiefs on behalf of their subjects. The main effective interest which is the ability to actually occupy and use the land is that may be held in customary lands in Ghana is termed as customary freehold. This is similar to a common law freehold.

The current difficulty is that the benefits are being attributed to land owners also known as allodial owners as compared to those who are acknowledged as owning customary rights of occupancy and use who are customary freeholders. Also it’s because of the implication of stool ownership as

communal ownership that is, ownership of property in which all members of the stool community

rightfully share; and lastly the meaning of customary trusteeship where land is held by the chief, often being re-made in ways that are unfavourable to the beneficiaries of the trust who are ordinary occupiers. In Kasoa communities these shifting norms are particularly marked. The catalyst to the disadvantageous interpretation of norms referred to is the rising value of land and its establishment as a transferable commodity. This gives rise to questions as to who is capturing these cash values and on what basis? Expectedly, this is most visible in the identified growing and larger number of cases in Kasoa where peri urban lands are being transformed into urban settlements and where accordingly land occupancy is being dramatically reconstructed to maximize income benefit by chiefs. In Kasoa the rights and values normally attributed to a customary freehold and upon which transfer of values would expect to be normally based, are being lost in favour of the rights and benefits due the ‘owners of the soil44_{’. If the ‘owner of the soil’ was understood as meaning ‘the}

community as a whole’ then this would not matter as customary freeholders would eventually receive the benefits of sale of what is, at the end of the day, the right to occupy and use land. In Kasoa where such transfers have been undertaken on this basis, the main question confronting the trustee is how best and most fairly deliver the benefits to the owners? However, to say that this act by the chiefs is unfair somehow is exaggerated. First, is by dismissing the value of the crucial right to occupy and use land including even the primary freehold right and placing all the value in the sale of the allodial title. Secondly, it is easily forgotten that the real holders of the allodial title are not Chiefs but their communities. In this way, some Chiefs abuse the trust they hold for the owners or occupants.

44

109

The Land Titles Registration Law 1986 aids and abets this transition from communal trust vested in the chief, into an individualized and material interest by defining allodial title as an interest in land and arguably endowing it with virtually the attributes of freehold itself. The combined effect is that chiefs are given the freedom to reap undue benefit from the sale of the central asset of the land, the right to occupy and use the land for a potentially unlimited period (customary freehold). Predictably, poorer persons and those with low status or voice are particularly adversely affected as it will be discussed in detail in chapter seven. In Kasoa, when agricultural lands come under development as urban residential plots, their interest in the land is sometimes only compensated with payment of the value of the crops they have lost, and/or they may sometimes receive only one house plot whilst wealthier or better connected persons may receive two or more plots. Being poor already, and having lost some land which makes growing enough to feed the family more difficult, they are often unable to sustain the one plot they have received. In times of economic stress they sell this, becoming landless and even poorer. However, with the increase of chiefs selling land, even indigenes are losing land to them. Most of the community members have developed a strategy of restraining the buyer from entering the land. This can be better understood through the case study described below:

Kwame, 53 years old, works in Kumasi in one manufacturing factory. He holds a university degree in economics. He was born and raised in Kasoa to Guan parents. He is an indigene. His other family members plus his old mother aged 87 lives in Ofaakor with her younger son Kojo aged 40. They own their land which was left by their father who died in 1999. Since Kwame works far and his job meant being transferred from one district to the other, he stopped farming on his land some years back. Since his mother was getting sick more frequently due to old age, the land was left fallow for some time. He is the eldest in his family. One day, his mother woke up to the rude awakening of some laborers clearing the bush in about 5 plots of their land. Upon confronting the laborers she was told that their boss Mr Boateng who works at one of the government departments in Accra sent them to start the foundation. She then asked for his contact details and a mobile number was provided. Upon calling My Boateng he confirmed that he bought the land from the chief. He claimed that a local person had identified this piece of land which is close to the main road and told him to approach the chief. The man was acting as an intermediary between the chief and buyers. Immediately Kwame was informed about what was happening and he immediately came to sort the

110

issue by employing some land guards to watch over the place. One afternoon, Mr Boateng and his labourers came to continue their work but they were chased by the angry land guards. Kwame states that this is a family owned land and that the chief who sold this land did not belong to his family or clan. Since Mr Boateng was restrained by the land-owning family from developing it he went back to the chief to demand his money. To save his face from such a shameful act, the chief went to Kwame’ family for discussion, but he nearly got beaten up by angry land-guards. This incident like many others brought a lot of dissatisfaction amongst the people, but no concrete actions were taken against the chief as the elders negotiated with Kwame’ family for forgiveness. Kwame then reported the case to his head of family who presented the case to the elders of the council. This lower ranked chief was summoned to the palace. When he was asked why he sold the land the chief indicated that the land had been laying fallow for some years now and that many buyers were looking for land to develop. This in his turn would mean good development in the area and reduce security issues as this land was being used by thieves. Putting up structures would lessen crimes. He also claimed that this land was catching up with the town expansion and leaving it fallow meant bringing uneven development to his area. When he was asked how much he had collected from Mr Boateng the chief indicated about GH20, 000 (approximately €8,143). He was asked to return the money to the buyer which he could not as he had already used it on other things. When Mr Boateng was approached he indicated that he had paid more than the stated amount as he paid drink money totaling to GH2, 000 and at another occasion he paid an extra GH1, 000 and then the Gh10, 000 for the land price tag totaling GH13, 000. Due to this Mr Boateng sued the chief at Swedru High Court where the case is still pending. In this case the buyer cannot develop the land as well as having difficulties to get back his money from the chief.

The case above demonstrates clearly that because of lack of success in negotiations with the chief, many people do not aim their anger at the selling chief, but at the buyer. Therefore it shows the uncertainty of ownership of land through the traditional framework through the appropriation and attempts to convert land away from collective ownership to private ownership and to internalize benefit. The case study also touches on the issue of how subjects try to maneuver within the system of chieftaincy institution more especially the hierarchy of chiefs. This was not just about the ability to restrain the buyer from using the land but it was also about the hierarchy of the chief who sold the land in this case in the resolution of this case. It is clearly that Kwame initiated the process of holding the chief accountable because he belonged to a different clan. Somehow it remains unclear

111

whether the results would have been different if the chief had come from the same clan as the owners of the land

Legal pluralism becomes obvious in this case which leads to more confusion, abuse and contestation of the institutional framework for the administration of customary land just like the previous case study illustrated. The case moved from a traditional justice system to a civil or formal one in a matter that looks to be complimentary at the same time showing signs of being substitutive. The buyer used traditional means of acquiring the land but when the owner started to bar him from developing it and upon realizing that the chief made a mistake he decided to use the formal system for justice. In the first place he could have used the formal channels in trying to inquire if the land was secure through government agencies before buying the land.

Another point to be considered in this case study is the fact of governance at local-family and clan level. With Kwame indicating that the chief who sold the land does not belong to his clan, it implies that all land is allocated to clan members and that chiefs of other clans cannot sell off or reallocate land of other clans. This shows that accountability and legitimacy has to be at clan level as well and yet this is not the case. The practice has changed so drastically. The question then is why are chiefs left to deal in matters of land outside their clans even when there is a hierarchy of chiefs? As a matter of fact the chiefs are engaging in appropriation of land on the presumptions of common property rights. Some of them are doing so for personal economic benefits. This is clearly illustrated when the chief was asked to why he sold the land the chief. He indicated that the land had been lying fallow for some years now and that many buyers were looking for land to develop. He only considered the aspect of development and not what the owner had decided to do with his land. The act of payment of about GH13, 000 by the buyer illustrates the fact that drink money has changed over time when now it is much more expensive and that even though the indigenes deny the fact that it’s not selling land but its only drink money, the reality on the ground is that chiefs are accumulating wealth through this act. The fact that the buyer is suing the chief in court proves the act of selling because traditionally drink money is supposed to be a token of appreciation.

112