2. LITERATURE REVIEW

This chapter provides a compact literature review on land issues in Africa, Ghana and the Volta Region of Ghana.

2.1 The role of women in agricultural production

In the context of African development, access to land and other resources are key to basic livelihood and therefore a question of fundamental human rights. The domination of agriculture in most African economies suggests the importance of land as a basic tool of development and a significant determinant of income earning power. A World Bank study pointed out that women are at the core of the economies of Sub-Saharan Africa, comprising about 60% of the informal sector and providing about 70% of total agricultural labour (Blackden and Bhanu, 1998). Statistical data for Ghana show that women account for about half of the agricultural labour force and produce around 70% of Ghana’s food crops (Gender and Agricultural Development Strategy, 2001). The World Bank study continues to say that women are the principal agricultural workers and food producers and are primarily responsible for assuring food availability in the family. However, their central position in economic production, attaining food security goals and meeting family nutritional needs contrasts with the systematic discrimination they face (often reinforced by custom, convention, culture and law) in access to and control over the basic assets needed, if they are to participate fully in realising the regions economic growth potential. Experts believe that economies will grow faster and countries will become less poor if gender-based inequality is substantially reduced or eliminated.

Kotey and Tsikata (1998) have argued that discussions revolving around agricultural productivity are best explained through a land rights analysis using a social relation’s approach. The “gender perspective” approach used by the World Bank to analyse growth and poverty in Sub-Saharan Africa recognises that women stand at the crossroads between production and reproduction, between economic activities and the care of human beings, and therefore between economic growth and human development. Such an approach takes account of existing discriminatory, unequal and inequitable (power) relationships and practices, and lays the basis for more sustainable development based on legal and social justice. It also provides room for a broader view of social groups.

2.2 Gender division of labour

Men and women perform multiple roles in society, as both are involved in i) reproductive activities, ii) productive activities, iii) community management activities, and iv) community politics^[1]. Women, however, generally spend less time on productive activities and community politics in comparison to men due to their heavy daily workload. While men are able to focus principally on their productive tasks and carry out their other activities sequentially, women are often obliged to carry out a large number of tasks, especially reproductive tasks, simultaneously and dispersed over the day. Thus, women’s productive time and flexibility are much more constrained compared to men, often leading to trade-offs between their non-productive and productive roles (Moser, 1993).

A clear division of labour according to sex and age exists in Ghanaian farming communities in terms of tasks performed and their participation in different farming activities. Women are more involved in farming activities such as planting, weeding, watering, harvesting, the transportation of farm produce, agro-processing and the marketing of small amounts of farm produce, whereas men are more involved in the initial clearing of the land, the tilling of the soils and the marketing of larger amounts of farm produce especially at farm gate level. Furthermore, women are more involved in food crop production whereas men are more involved in cash crop production. The food crop sector is generally considered to be less lucrative than the cash crop sector and fewer resources are usually spent by the State on the development of the former sector. Benneh et al., (1995) claim that women are more involved in food crop production because it is less costly, it requires less labour and food crops can be grown on the less fertile soils, inter-cropping of food crops is possible. The authors observed that few women are involved in the production of cocoa, one of the major cash crops grown in Ghana, partly because of the high labour inputs and huge capital outlays for land acquisition and input procurement (i.e. seeds, insecticides, implements etc.) demanded by the cocoa industry. Most women could not take advantage of the new opportunities afforded by the cocoa industry as they lacked necessary capital inputs and labour requirements. The opportunities fell largely on able and enterprising men, who strongly depended on migrant labour to operate their farms.

Ghanaian women are obliged, by tradition, to assist their husbands in their farming activities. These activities are often carried out in addition to their own farming activities, which are either performed on their husbands’ plots or on separate plots of land that have been allocated to them. This tradition further increases the workload of women and restricts the amount of time that they are able to spend on their own farming activities (Duncan, 1997).

2.3 Security of land tenure^[2] and poverty

It is often assumed that security of land tenure will enable the rural poor to improve their livelihoods as well as increase their food supplies, raise rural employment and foster more sustainable agricultural practices. Secure land rights are said to have a significant positive impact on the alleviation of poverty, as it gives the owners greater control over their labour, a rationale to invest in the land and crops, greater access to extension services and more bargaining power.

In their quest for food security, the poor often have little choice but to use their limited resources extensively. They are often forced to adopt survival strategies with short-time horizons due to factors such as their insecure land tenure rights, their limited access to financial services, their lack of access to information and lack of access to agricultural inputs. Although secure resource rights cannot guarantee sustainable land management, it can be a powerful incentive. Farmers with long-term access to land have a greater incentive to sustain the land and develop ways of preserving and regenerating it (Quisumbing et al., 1999).

Security of land tenure used to be guaranteed by the utilisation of land. However, land use rights have been eroded due to external factors, such as population growth and agricultural commercialisation. Fallow lands previously used by women and poor people to gather firewood, fruit, wild grain and fodder have been converted into farmlands and are no longer accessible to them. Women are often among the first to loose their land rights, as these are generally usufruct rights^[3] or borrowed rights (Du Guerny and Topouzis, 1996).

2.4 Security of land tenure and agricultural productivity

A major theme in land tenure research is the relationship between the security of land tenure and agricultural productivity. Empirical evidence on the two remains scattered. On the one hand, researchers such as Coase, Demsetz, Bromley, and Platteau indicate a direct link between insecure land rights and a lower agricultural productivity. This is ascribed to the farmers’ weak incentives for land maintenance and improvement, their lack of interest to invest in permanent crops, and their lack of collateral for credit which can be used to purchase improved inputs and fertilisers (Fong and Bhushan, 1996). On the other hand, research conducted by Migot-Adholla et al. in Ghana, Kenya and Rwanda (1991), did not show a clear link between tenure insecurity and a low agricultural output. According to their observations, land titling was not a major factor influencing the agricultural productivity of farming households. Other factors such as the availability of credit, marketing opportunities, input supplies, extension services, health, education and infrastructure appeared to have a greater impact on agricultural productivity. Quisumbing et al. argued that transferring ownership of land to women (e.g. through land reforms) is unlikely to increase the productivity if there are no improvements in their access to inputs for agricultural production (e.g. seed, tools, animal or motor traction), better technology, capital and/or credit, labour and agricultural services (Lastaria-Cornhiel, 1995). Similarly, the Ministry of Food and Agriculture in Ghana, acknowledges the fact that the agricultural productivity of women farmers is hampered in Ghana by their insecure access to land as well as their limited access to financial services, their limited access to labour, the lack of appropriate technologies, skewed extension services delivery, heavy workload resulting in time constraints and women’s lack of involvement in decision making (Gender and Agricultural Development Strategy, 2001).

The scattered empirical evidence on the impact of land tenure on agricultural productivity, underlines the need to analyse the issue on a case-by-case basis.

2.5 Land reforms

Land reforms are often recommended to improve women’s access to and control over land. However, such reforms can be counter-productive if there is no attention for gender issues. If land titles are issued to those with the strongest claims under local law, men usually benefit at the expense of women. Thus it is recommended that registration programmes should issue titles to the actual users of the land, while taking account of socio-economic and political factors (Von Benda-Beckman et al., 1997). In addition, one should take account of the fact that it may be difficult for women to keep control over the land and other resources obtained through land reforms due to pressures from, for example, relatives to sell, lease or lend their land to others. Women may find it difficult to cultivate the land or take care of the crops if they have no control over other productive factors, such as labour and tools. Finally, local officials may not support new legislation or programmes that target women (Lastaria-Cornhiel, 1995).

Opinions differ on the application of land reforms. On the one hand, donors and African governments tend to promote land reforms that encourage private ownership. On the other hand, authors such as Bruce, Migot-Adholla, Atherton, Benneh, Kasanga and Amoyaw call for the ‘‘adaptation’’ rather than the ‘‘replacement’’ of customary tenure systems, while taking account of strengths and weaknesses of existing land registration laws (Maxwell and Wiebe, 1998; Benneh et al. 1997). They are of the opinion that the introduction of private property rights through titling programs has proven to be inappropriate or even damaging in much of Africa. Migot-Adholla, Benneh, Atsu, and Place (1990) recommended the implementation of a selective land reform policy in Ghana by the government in areas where there is a local demand for reform in land tenure institutions. In those areas it is more likely that farmers may be willing to finance part of the cost of the programme and would continue to update the registers following land transactions.

2.6 Relevant land legislation in Ghana and the National Land Policy

Land rights in Ghana have been mainly legislated under the following five laws and the National Land Policy:

• The 1992 Constitution of Ghana (1992);

• The Intestate Succession Law PNDC Law 111 (1985) and (1991) amendment;

• The Administration of Estates (Amendment) Law 113 (1985);

• The Land Title Registration Law PNDC Law 152 (1985);

• The Head of Family Accountability Law 114 (1985).

The 1992 Constitution

The 1992 Constitution indicates that, under the Directive Principles of State Policy, the State is to take all necessary steps to ensure the full integration of women into the mainstream of economic development of Ghana. All persons are guaranteed ownership of property and the right of inheritance. Interestingly, the State is also required to take appropriate measures to promote agriculture and industry as a strategy to promote rural development. Under article 22, the Constitution guarantees all spouses a reasonable portion of each other’s estate regardless of whether or not the spouse executed a will before death. Under the same article, Parliament is required to enact legislation to regulate the property rights of spouses to remove potential injustices inherent in the current system of property distribution at death intestate and dissolution of marriage. This is yet to materialise.

The Intestate Succession Law

The Intestate Succession Law is a path-breaking departure from customary law and has been described as an important landmark of existing legislation on inheritance rights in Ghana. It is the first legal framework that provides equal rights of inheritance between spouses and increased rights for children. Accompanying the law is a memorandum that fully explains the rationale behind its promulgation. In brief, it states that the law seeks to provide a uniform intestate succession system applicable throughout the country irrespective of the class, marriage type and lineage, and focuses on estates that have not been covered by a will. It further stresses the increased need for recognition of the growing importance of the nuclear family. The law aims at giving a large portion of the estate of the deceased to his/her spouse and children in a manner that was previously denied under traditional law (Memorandum to the Intestate Succession Law). Until 1985, when the law was passed, a widow was not considered to be part of her husbands’ family and therefore was not entitled to any property of her deceased husband who had died intestate.

The Administration of Estates (Amendment) Law

The Administration of Estates (Amendment) Law provides added protection to women and children through state intervention in the administration of estates with a value of up to ten million cedis^[4]. The law is applied in cases where agreements cannot be reached on the administration of such estates or where an administrator has not been appointed. Property of a person who dies intestate without a will is thus administered by the Administrator-General according to the process of law to protect the needs of beneficiaries.

The Land Title Registration Law

The Land Title Registration Law provides security of tenure to various types of landholders. The law aims at providing certainty to land titles, and to render dealings in land safe, simple, cheap, devoid of fraud and require minimum litigation. Interests, which are covered, include freehold, usufruct, lease and tenancy agreements (Memorandum to the Land Title Registration Law).

The Head of Family Accountability Law

The Head of Family Accountability Law safeguards family property by obliging heads of family, who remain in custody of such property, to account for all financial dealings associated with it and to file an inventory. Any member of the family who has a beneficial right to such property may file a claim in the High Court against a head of family who mismanages the property. Before this is done however, claimants are required to seek redress at the family level. The High Court has the power to compel the family head to render account or file an inventory in respect of all properties in his possession, control or custody.

National Land Policy

The Ministry of Lands and Forestry developed a National Land Policy in 1999. This was done out of belief by the Government of Ghana that the numerous land litigation cases in the courts were evidence of a lack of effective and efficient management of land in the country. The Policy aims to increase the security of land tenure by means of land registration and to reduce and eliminate long-drawn-out land boundary disputes, conflicts and lawsuits. Security of tenure and the protection of land rights are to be undertaken with the full participation of traditional and customary landowners through a process of tenure reform that documents and recognises the registration and classification of land titles of various types of landholders. The National Land Policy seeks to reinforce the primary objectives of the Land Title Registration Law

The law, however, has been criticised for its over concentration on government interests (such as compulsory acquisition) and a lack of sensitivity to the specific needs of vulnerable groups in society, such as women and the poor (Wily et al., 2001).

2.7 Changes of customary laws as a result of socio-economic change

Various studies have shown that customary laws can adapt positively to new developments. Duncan’s (2000) study on the current state of matrilineal and patrilineal forms of inheritance in Ghana showed a transformation of the nephew inheritance system practiced among matrilineal Akan communities. Traditionally, only a man’s nephew could inherit from him. This rule, which was followed with much rigidity in the past and to the detriment of the man’s children, was questioned after 1930 by Christians and youth and was changed as a result extensive debates and dialogue.

A change was also observed with regard to customary land laws. Danquah (1928) noted that the sale of land among Akan speaking communities was much more than an exchange of ownership rights only. It was also viewed as the selling of a spiritual heritage, a veritable betrayal of ancestral trust and an undoing of the hope of posterity. An overturn of this perception was shown by the case of (Sasraku versus David 1959) GLR 11. The sales of land had become a more common and socially accepted practice among the Akans, due to a transformation of the agricultural sector (i.e. increased commercialisation of the sector).

Du Guerny et al (1996) and Göler von Ravensberg et al (1999) noted that without changes in customary land law, female-headed households are more likely to end up with less fertile and smaller acreage of land as compared to male-headed households. Changing customary law with regard to women’s land rights, however, is a major challenge because it is strongly linked to existing views and perceptions of women by society. Von Benda-Beckman et al. (1997), and Fong and Bhushan (1996) recommended the formation of interest groups to force changes, as change is unlikely to come about without strong collective pressure from men and women. Furthermore, women’s struggles to obtain better land rights need to be seen within a larger context of factors such as population pressure, land degradation, increased agricultural commercialisation, lack of collateral to obtain credit, etc.

2.8 Importance of kinship with regard to property distribution

Numerous studies conducted in Ghana have highlighted the usefulness of kinship as an entry point to the study of social organisations since it views the various statuses and roles of individuals who make up a community. Kinship itself describes relationships drawing from consanguinity (blood ties), marriage (affinity) and adoption. All these relationships are governed by specific rules and patterns of behaviour as well as reciprocal duties, obligations and responsibilities (Nukunya, 1992).

Most of the land in the Volta Region is vested in lineages. The lineage heads, generally men^[5], grant usufruct land rights to individual members of the lineage. These lineage members may utilise the land throughout their lives, under the condition that the lineage head is obeyed and that norms and expectations of the groups are respected at all times. Usufruct land rights were also obtained through the clearing of forestlands for agricultural purposes; an activity mainly performed by men. As a result, men generally acquired the land use rights. Once occupied, the land could only be acquired through inheritance, gift, rental agreements or outright purchase.

Decisions concerning the lineage group are taken at lineage meetings, which are usually attended by male members of the group only. Female members are seldom invited to participate in such meetings. If invited, their roles are usually limited to those of listeners or resource persons, not decision-makers or discussion partners. As a result, men generally take decisions (including those related to land issues) on behalf of the descent group and all its members.

In order to understand existing property rights in traditional societies, it is essential to have knowledge of the applied descent system. The descent system or what is collectively known as descent groups determine the principles and rules that regulate the organisation of groups within which individuals perform their day-to-day activities. It refers to a direct genealogical lineage connection between an individual and his/her offspring (Fortes, 1950). The matrilineal descent system is a kinship system in which inheritance is traced through mothers and their blood relatives, while under the patrilineal descent system inheritance is traced through fathers and their blood relatives. The Ewe, Ga, Dangbe and Krobo are examples of patrilineal societies in Ghana, whereas the Fanti, Akyem and Ashanti are examples of matrilineal societies.

The patrilineal inheritance system is the dominant inheritance system practiced in the Volta Region. A characteristic feature of this system is male dominance in land ownership and control. It is based on the basic principle that land is a priceless economic commodity and must be vested in men to ensure the welfare and continuity of the descent group. A male member’s individual share of land passes on to his children upon his death under this system, whereas in the case of a woman it reverts back to the lineage. The patrilineal inheritance system generally sidelines women from inheritance, especially in the case of exogamy^[6], as it could result in the transfer of property belonging to a deceased man to another lineage upon marriage. Women who marry within the same lineage (endogamy), however, are more likely to have greater inheritance rights. Women are permitted to use the land as long as they are alive and are linked to their husbands’ lineage, but cannot pass these rights on to others. Thus, women’s access to land is generally linked to their wifely status, whereas men’s access is by virtue of his lineage membership.

A remarkable inheritance practice observed among the Anlo communities in the Southern zone of the Volta Region is the transfer of so-called grandmother/grandma land (= mamanyigba) from mothers to daughters. Grandma lands refer to lands that were formerly given to trokosi^[7] women known by the name of “Fiasidi.” Unlike a typical trokosi, the Fiasidi were privileged women upon whom the community conferred much respect. The Fiasidi received deity lands, which they could cultivate whilst serving in the shrine, and were given additional land in exchange for their services, which they could pass on to their children. The Fiasidi often felt more inclined to pass their land on to their daughters as a counter measure against existing discriminatory inheritance patterns. The grandma land was initially used by women basket weavers for the cultivation of reeds and wickers. Changes, however, occurred in the 19^th Century as the value of the land increased due to land scarcity (as a result of a population increase) and the introduction of cash crop farming. Men started using the land for the cultivation of cash crops, such as shallots and sugar cane, and gradually gained more access to and control over the grandma lands.

Certain customary inheritance practices have negatively affected women’s access to land. (Kludze, 1973) and (Nukunya, 1993) noted that if both sons and daughters were considered when property was distributed, their shares were often unequal. Preference was usually given to sons over daughters, even if the sons were younger than the daughters. Furthermore, Kludze expressed that the Anlo’s increasingly considered the claims of daughters to land as only a privilege and not a right that could be enforced before a court of law.