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Gender and Land Rights Database

Ghana

Rights entrenched in the Constitution

 

The Constitution, adopted in 1992: (13)
- Article 11[2]-3]: Defines customary law as part of the common law of the country.
- Article 12[2]: “Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.”
- Article 17[1]  Right to equality before the law.
- Article 17[2] states that “...a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.”
- Article 17[4] states that the Parliament shall not be prevented from enacting laws that are reasonably necessary to provide for matters relating to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law.
- Article 18[1] recognizes the right to own property either alone or in association with others.
- Article 20[1] provides that the State shall make no compulsory acquisition of property unless it necessary in the interest of defence, public safety or the necessity for the acquisition is clearly stated.
- Article 20[2] states that compulsory acquisition of property by the State shall only be made under a law which makes provision for [a] the prompt payment of fair and adequate compensation; and [b] a right of access to the High Court by any person who has an interest in or right over the property, for the determination of his interest or right and the amount of compensation to which he is entitled.
- Article 20[5]: “Any property compulsorily taken possession of or acquired in the public interest or for a public purpose shall be used only in the public interest or for the public purpose for which it was acquired.”
- Article 22[1] guarantees both spouses with a reasonable portion of each other’s estate, regardless of whether or not the spouse executed a will before death.
- Article 26[2]: prohibits “all customary practices which dehumanise or are injurious to the physical and mental well-being of a person.”
- Article 27[1] provides for special care and paid leave for mothers during a reasonable period before and after child-birth.
- Article 27[2] states that facilities shall be provided for the care of children below school age to enable women to realize their full potential.
- Article 27[3] guarantees women with equal rights to training and promotion.
- Article 36[3]: “The State shall take appropriate measures to promote the development of agriculture and industry.”
- Article 36[6] states that the Government shall adopt positive actions to ensure the full integration of women into the mainstream of economic development.
- Article 36[7] guarantees the right of property and the right of inheritance.
- Article 257[1]: “All public lands in Ghana shall be vested in the President on behalf of, and in trust for, the people of Ghana.”
- Article 258[1] provides for the establishment of Lands Commission that shall manage public lands and any lands vested in the President by this Constitution or by any other law or any lands vested in the Commission.
- Article 266 states that rights or interest over land shall vest only in the citizens of Ghana.
- Article 267: Regulates “Stool and Skin Lands and Property”, and states that, “all stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust for the subjects of the stool in accordance with customary law and usage”.
- Article 270[1]: “The institution of chieftaincy, together with its traditional councils as established by customary law and usage, is hereby guaranteed.” (13)

Women's property and use rights in personal laws

 

The Head of Family Accountability Act, 1985 (PNDC Law 114):
 - Section 1 (1): Safeguards family property by obliging the head of family, who is in custody of such property, to account for all financial dealings associated with it. 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. However, claimants are required to first try to seek redress at the family level.
 - Section 3: The High Court has the power to compel the head of family to render account or file an inventory in respect of all properties in his possession, control or custody (14).

The law governs three types of marriage:
 - customary marriages
 - marriages under the Marriage Ordinance of 1844
 - marriage under the Mohammedan Ordinance of 1907

The Marriage Ordinance, 1884:
 - States that marriage shall be monogamous and prohibits men from marrying again unless they legally divorce.
 - The Ordinance makes no allowance for a second marriage under customary or Sharia law. Similarly, men who have a first wife by customary law cannot contract a subsequent marriage under the Marriage Ordinance (16).

The Matrimonial Causes Act 1971, (Act 367):
 - Created the legal framework for marriages, both monogamous and polygamous, and provided for matrimonial cases and other related matters (15).
 - Sections 1 and 2: A petition for divorce may be presented to the court on the sole ground that the marriage has broken down beyond reconciliation. 
 - The court may grant maintenance in addition to matrimonial relief.
 - Courts adjudicating Muslim divorces are directed to apply the terms of Act in matters of maintenance and custody (18).

The Customary Marriage and Divorce (Registration) Law, 1985, amended by the Customary Marriage and Divorce (Registration) (Amendment) Law, 1991:
 - The 1991 amendment made the registration of marriages performed according to customary law optional, rather than mandatory, as it was prior to the amendment. The parties to such a marriage may register it at any time after it has been celebrated unless the Secretary for Justice subsequently sets a time limit.
 - The Act also makes optional the notification of the Registrar of the dissolution of marriages performed according to customary law that have been registered under the Act.
 - Provides that a court shall apply customary intestate succession law to a marriage recorded under the Act if it is satisfied that the marriage was validly contracted under customary law (17).

The Marriage of Mohammedans Ordinance, 1907:
 - Applies to marriages under Islam, which may be polygamous (9).
 - Specifies that marriage is solemnised in presence of the bridegroom, the bride’s wali, and two witnesses.
 - Provides for registration of marriage and divorce among Muslims within one week (18).

The Children’s Act, 1998:
 - Restricts early marriage and sets the minimum age for marriage at 18 years.
 - Grants parental authority to both parents, who share responsibility for child care (16).

Inheritance legal mechanisms

 

The Intestate Succession Law, 1985 amended by the Intestate Succession (Amendment) Law, (PNDCL 264),1991:
 - Emphasizes the importance of the nuclear family and provides spouses with equal rights of inheritance.
 - Provides for equal shares of inheritance for both spouses.
 - The matrimonial home and possessions therein shall go to the spouse and children in equal shares. The law provides that the residue shall be distributed in specified percentages to the spouse, children, parents and the customary family (8).
 - Section 12 states that if the value of the estate is considered small then the estate should devolve entirely to the spouse or the child, or if there is not spouse or child, to the parent.
 - Section 16[a], under the 1991 amendment, prohibits any person from ejecting a spouse or child from the matrimonial home prior to the distribution of the estate, irrespective of whether the deceased person died testate or intestate. Anyone who attempts to or succeeds in ejecting the surviving entitled spouse, or deprives her/him of the use of the property or any part thereof, or interferes with the property in any way, is liable to a large fine and imprisonment not exceeding one year (9).
 - Due to the fact that the term spouse is used in the singular, polygamous marriages are not addressed. In addition, the law does not cover de-facto, non-formalized unions (15).

The Administration of Estates Law, 1985, amended in 1998:
 - Protects women and children by stating that when the value of the estate is equal to or less than 10 million cedis, it should be devolved entirely to the spouse or the child in order to protect the needs of beneficiaries (14).

The Marriage of Mohammedans Ordinance, 1907:
 - Section 10 provides that succession of an intestate spouse registered under the Ordinance shall be regulated by Islamic law (9).

The Wills Act, 1971:
 - Provides for freedom of testacy, but subject to customary law applicable to testator (18).

Land Legislation

 

Administration of Land Regulation, 1962, amended by the Lands (Miscellaneous Provisions) Act, 1963:
 - Provides for the administration of Stool and other lands.
 - Section 31 defines Stool lands as land controlled by any person for the benefit of the subjects or members of a Stool clan, company or community and all land in the Upper and Northern Regions other than land vested in the President.
 - Section 4 contains procedures to determine the extent of interest that a Stool has in land.
 - Section 7 states that the President has the power to vest in him in trust any Stool land if it is in the public interest to do so.
 - Section 10 specifies that the President may similarly authorize the occupation and use of any land to which the Act applies which is conducive to the public welfare (19).

The State Lands Act, 1962:
 - Section 1 provides that, in the national interest, the President may declare land to be required in the public interest. On publication of an instrument made for the acquisition, the land shall vest in the President on behalf of the Republic.
 - Section 4[1] provides that the Minister shall pay compensation or shall offer land of equivalent value.
 - Section 4[2] states that disputes that arise may be referred by the Minister to the Tribunal accordingly established.
 - Section 5 states that the President may grant a lease or a license in respect of land acquired under this Act (19).

The Public Conveyancing Act, 1965:
 - Section 1 empowers the President to declare, in the public interest, any area of state or stool land to be selected land and to grant land in a selected area, on specific terms and conditions, to persons indicated in the Act.
 - Section 2[1] states that the title in land may be assigned to: persons deprived of the use of their land by reason of a natural catastrophe or forced to abandon the land by reason of specified legal action; persons that wish to settle in a land reclamation area or a planned irrigation area; and persons who wish to carry out husbandry in an area planned for that purpose.
 - Section 2[2] provides that the right to land acquired under the Act may not be transferred except with the written consent of the Minister.
 - Section 3[1] specifies that a plan shall be prepared for each selected area (19).

The Provisional National Defense Council (PNDC) Proclamation, 1982
 - Obliges the chiefs to submit all customary land transactions involving cash or in-kind transfers for approval to the Land Commission. The aim of the Proclamation is to reduce some of the powers of local chiefs’ through legislation (12).

The Land Title Registration Act, 22 April 1986 (PNDC Law 156), amended in 2007:
 - Requires all persons with claim to a piece of land to register it in the local registry beforehand, in order to overcome insecurity of titles in the customary system and claims over entitlement to land.
 - The law, which includes freehold, usufruct, lease and tenancy agreements, aims to provide certainty to land titles, and to make transactions safer by limiting frauds and reducing legal actions (14).

Policies/Institutional mechanisms enforcing or preventing women’s land rights

 

The National Council on Women and Development (NCWD), established in 1975 as the national machinery for women, became a full ministry in 2001 by the name of Ministry of Women and Children’s Affairs (8). The Ministry is in charge of monitoring gender issues and ensuring equal status for women. The Ministry formulates gender specific development policies, guidelines, advocacy tools and strategies; it also prepares national development plans and programmes for women and ensures their effective implementation (20).

The  Commission on Human Rights And Administrative Justice (CHRAJ) was established under the 1992 Constitution to monitor and deal with all human rights violations as well as educating the public on human rights. The Commission is also mandated to ensure that women’s human rights are not infringed upon. CHRAJ has decentralized its operations and has offices in all the ten administrative regions of the country and in some districts (8).

Ghana Poverty Reduction Strategy Paper I (GPRS I, 2003-2005)
 - Identifies insecurity of tenure as endemic.
 - Recognises that any land reform should be accompanied by close monitoring to detect adverse effects on the poor and women.

Ghana Poverty Reduction Strategy Paper II (GPRS II, 2006-2009)
 - Aimes to address the challenges identified by GPRD I.
 - Proposes to ensure women's access to and control over land.
 - GPRS II reviewed the Land Administration Project (LAP) in order to recognise the importance of property rights to small farmers who are mostly women (30).

The 1999 National Land Policy (NLP), amended in 2002, was released by the Ministry of Lands and Forestry in June to improve the management of land in the country. The NLP seeks to reinforce the primary objectives of the Land Title Registration Law by increasing the security of land tenure by means of land registration. The policy has identified certain groups’, including women, lack of security of tenure; however, the specific impact of land administration and land tenure on women was not mentioned (14).

The Land Administration Project (LAP) was launched in 1999, under the NLP, to improve the land administration system by establishing an administrative structure that ensures women, landless and vulnerable population with tenure security. The Project involves all the Land Sector Agencies and the Town and Country Planning Department. The first phase commenced in October 2003, while the overall implementation is designed to span over 15 years (21).

With regards to tenure security for women, the LAP Unit has undertaken a number of initiatives focused on training and awareness creation among the staff of the Land Sector Agencies (LSA) and the Traditional Authorities of the Project’s pilot Customary Land Secretariats. Furthermore, the Institute of Local Government Studies (ILGS) has designed a gender strategy for the land sector to enable development interventions that mainstream as well as address gender related problems at the traditional and the LSA level (22).

 

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography