The government of Ghana claims state ownership of all “naturally occurring” trees, including on land privately held under customary title. The lack of tree tenure and inability to capture economic benefits from trees is a major driver of tree loss and disincentivizes cocoa agroforestry. This report analyzes tree tenure law and policy in Ghana, including the proposed tree registration policy and justifications for state ownership of naturally occurring trees based in the 1992 Constitution. The authors propose an alternative interpretation of the 1992 Constitution based on customary law and usage that allows devolution of all tree rights to customary landowners without a constitutional amendment and removes the need for a tree registry. Evidence from devolution of tree tenure in the Sahel and China show that devolution can lead to increased tree cover. Based on this analysis a series of recommendations on tree tenure reform are posed for government, the cocoa sector, donors, and civil society.
COCOA AND FORESTS
Ghana is the world’s second largest cocoa producer, and cocoa plays a critically important role in the economy with an estimated 30 percent of Ghana’s population dependent on cocoa for part or all of their livelihoods. However, the cocoa sector is in trouble and smallholder cocoa production does not provide a reliable livelihood or ensure a healthy and sustainable ecosystem.
Traditional cocoa farms retained large shade trees which preserved many economically and environmentally important trees within the landscape. In the late 1950s the government inserted itself into the timber market and claimed rights to naturally occurring trees on cocoa farms. This led to increased timber harvesting from cocoa farms that was exacerbated in the 1980’s when Ghana’s cocoa marketing board changed its policy and advocated removing shade trees to increase cocoa productivity. The new cocoa board policy produced short term yield gains, but also increased susceptibility to diseases and shortened cocoa trees’ productive life. The combined pressures from forestry and cocoa led to deforestation and fragmentation of forest landscape in Ghana’s high forest zone and widespread removal of shade trees from farms. An average of 138,000 hectares of forest was lost per year from 2000 to 2015 and in 2007 it was estimated that 72 percent of cocoa farms across Ghana had “no to light” levels of shade.
The government of Ghana and cocoa industry actors acknowledge the vital role of improved cocoa production systems to mitigate and adapt to climate change, maintain biodiversity, conserve and enhance ecosystem services, and improve the livelihoods of cocoa farmers and their families. They recognize that increasing the number and quality of trees in Ghana’s cocoa-growing landscape is critical to improve the health and sustainability of cocoa production and diversify income and resilience for cocoa households.
TREE TENURE: A KEY CHALLENGE TO RESTORING COCOA FOREST LANDSCAPE
A leading challenge to planting more shade trees is government ownership and control of all naturally occurring timber trees – even on privately held land. State ownership of naturally occurring trees is widely considered a strong disincentive for landowners and smallholders, regardless of land tenure, to nurture trees on their cocoa farms. In part this is because the benefits of harvesting naturally occurring trees are shared between loggers, traditional authorities, and the government, but landowners are excluded. Numerous government policy documents over the last decade have advocated for vesting title to naturally occurring trees with communities and farmers who cultivate and tend these trees.
TREE REGISTRATION IS NOT EFFECTIVE TREE TENURE REFORM
The current tree tenure reform efforts are focused on establishing a national tree registry where farmers can register title to trees on their land. Early tree registration policy allowed farmers to register planted trees as proof of ownership but maintained state ownership of naturally occurring trees. More recent policy allows farmers to register both planted and naturally occurring trees and separates rights to trees from rights to the land. This proposed separation of rights to land and trees changes customary tenure norms and creates the potential for conflict on many cocoa farms.
There are other problems with the proposed tree registration policy. If a farmer fails to register planted trees, the default determination is that planted trees were naturally occurring and owned by the state. It is also unrealistic and unsustainable to successfully establish and maintain a national tree registry. Tree registration is estimated to cost from $27 – $40 per farm, which scales to a cost of between US$47.5 million and US$86.4 million to register all the trees in Ghana’s cocoa farms. This does not include the Forestry Commission’s costs to process 1.7 million to 2.1 million individual records from cocoa farmers, the costs of tree registration in other parts of Ghana, or the costs to maintain the registry over time.
THE 1992 CONSTITUTION: A BARRIER TO REFORM?
Government sponsored policy reforms that argue cocoa farmers should have rights over all trees growing on their farms are a significant and positive step in the right direction. However, these calls for reform are accompanied by arguments that the current law is based on the 1992 Constitution, and that any law reform requires difficult constitutional amendments. There are two key issues under the 1992 Constitution: i) how natural resources and rights to naturally occurring trees are interpreted; and ii) how revenue from these resources is allocated.
INTERPRETATION OF THE 1992 CONSTITUTION THAT PROTECTS VESTED INTERESTS
The government claims naturally occurring trees on cocoa farms are considered a natural resource, and ownership of these trees is not separated from ownership of the land. However, stool lands are vested in the Stool who own them “on trust” for the Stool subjects, with government involved in regulation and management. While customary rights to stool land can be passed down to farmers, the Stool and state have retained rights to natural resources to exercise their fiduciary responsibilities as trustee. As naturally occurring trees are part of the Stool’s resources, the Stool and government divide up the proceeds from timber revenue according to the constitutionally mandated split. This poses a major challenge as farmers are excluded from the revenue. Planted trees, on the other hand, are treated the same as crops whereby ownership does not by default coincide with ownership of the land. Farmers possess all ownership, management, and use rights to planted trees – and the subsequent benefits.
ALTERNATIVE INTERPRETATION THAT SUPPORTS DEVOLUTION
The authors analyzed the 1992 Constitution, customary tenure practices in the cocoa growing regions, and literature on tree tenure in Ghana and propose an alternative interpretation with two parts:
- First, the main customary land rights of usufructs, asideε, and abunu that support rural farmland holdings are created by clearing the natural resource of the primary forest. As a result, there is no remaining natural resource on usufruct, asideε, or abunu farmland.
- Second, all trees that are currently considered “naturally occurring” (and therefore argued to be a natural resource owned by the stool) are more correctly understood as farmed trees. As a result, they should be treated the same as planted trees and owned by the landowner.
This alternative interpretation results in eliminating the distinction between naturally occurring and planted trees on customary land with all rights to all trees flowing with these family or individual rights to the land. It also removes the need to register trees and allows tree tenure policy reform to move ahead without a constitutional amendment. The proposed interpretation of the 1992 Constitution and recognition of farmer’s rights to all trees on their land should incentivize farmers to cultivate more timber and shade trees on their lands as they would be the legal and beneficial owners of these trees.
LESSONS FROM OTHER COUNTRIES
It can be difficult to establish a cause and effect relationship between tenure systems and sustainable forest systems, and evidence from other countries can help inform policy reform in Ghana. The most instructive cases for Ghana on devolution of rights are the innovative and impactful policy reforms that have been implemented in Sahelian West Africa and northern China. In both examples the devolution of rights to individuals led to increased forest cover, although in China this also required access to markets and benefits. This lesson from China is key: devolution of rights on its own may not be sufficient to incentivize tree planting. Devolution must be coupled with landowner’s access to markets and benefits.
Ghana can also look to neighboring Côte d’Ivoire, which has gone through rounds of forest law reform in 2014 and 2019 that has resulted in provisions to explicitly state that natural or planted trees belong to the landowner. However, uncertainty and conflicts over underlying land tenure in Côte d’Ivoire highlight the need to look at both the land and tree governance framework together, along with the needs and motivations of end users and other stakeholders.
Other countries have experimented with tree registration systems with contrasting results. In Thailand, a government bank invested US$1 billion as part of a corporate responsibility initiative to establish a tree bank to help farmers access loans and income and has successfully registered over 11 million trees. The Philippines shares more similarities to Ghana, where a registry was established to differentiate ownership of naturally occurring and planted trees, but this has not been successful.
The Government of Ghana and the USAID recognize that strengthening land and tree rights is critical for Ghana to achieve its development goals both within the cocoa sector and more broadly. However, forest resources in Ghana represent an important source of revenue for the government, so bold reforms that limit or remove the state’s control have met strong resistance by the Forestry Commission and customary powerholders, including the Stools and chiefs. As a result, years, even decades, of tweaking and modifying the legal and policy frameworks have been ineffective as the focus has been on enforcing and adjusting an inherently unenforceable and unfair legislative framework rather than tackling core issues.
Bold reform to divest tree tenure to customary landowners without any need to register each individual tree is needed. To help achieve this, a series of recommendations was developed for key stakeholders.
RECOMMENDATIONS FOR THE GOVERNMENT OF GHANA
- Enact law reform to divest all tree rights to landowners. The law should be clear that all rights to all trees flows with rights to the land and this applies to customary rights holders. Rights to emission reductions can be separated from tree tenure and should not prevent devolution.
- Implement and enforce existing permit regimes to generate revenue for the Forestry Commission. This can help replace lost revenue from the devolution of tree tenure.
- Establish a fit-for-purpose rural land registry.
- Engage in public consultation and outreach during and after the reform process.
RECOMMENDATIONS FOR THE COCOA SECTOR
- Re-direct funds away from tree registration pilots to focus on other priorities.
- Expand tree planting programs. This could be coupled with other policy innovations such as a payment for ecosystem services scheme or a tree bank like in Thailand.
- Support customary land title registration.
- Work with industry associations to support tree tenure reform including outreach to cocoa farmers.
RECOMMENDATIONS FOR DONORS
- Develop a unified response to Ghana’s tree registration policy to ensure donor support is aligned.
- Help Ghana finalize the necessary legal and policy reforms to devolve tree tenure, including how devolution can comply with the sale of emission reductions to the Forest Carbon Partnership Facility. This may include supporting some of the outreach and convening and other costs of the reform process.
- Support additional research on devolution of tree tenure. For example, ILRG suggests carrying out further analysis to help quantify Forestry Commission revenue from the proposed reforms.
- Support land title registration, including through use of cost-effective mapping technologies and digital databases.
- Support public outreach on tree tenure.
RECOMMENDATIONS FOR CIVIL SOCIETY
- Conduct outreach and engagement with all stakeholders to help push for reform.
- Support tree planting programs, particularly once reform has been enacted.