ALGUNAS DISPOSICIONES GENERALES IMPLÍCITAS A LOS REGÍMENES PATRIMONIALES DEL MATRIMONIO EN EL

Within the state sector, customary land relations in Ghana are based on a formulation that differentiates allodial and user (usufructuary) rights. Allodial rights are vested in chiefs who through their political hegemony are granted ultimate control over the land. This concept is ultimately derived from some notion of communal land tenure in which the land is vested in chiefs to manage on behalf of the commu- nity, or in which, as founders of the polity and the political order, chiefs acquired rights to the political allegiance of subjects on their land. This is essentially a political definition of land rights, which empowers chiefs as the trustees of communities to control land. Their ‘subjects’ (the peasantry) only hold user rights in land, which confer on them rights to use the land to make a livelihood, but not rights to sell land. Only the products emerging from the use of land and from their la- bour belong to the subjects of the chief, such as the farm plot, but the actual land belongs to the chief. This framework ultimately denies the peasantry secure rights in land by enabling them to be ‘extinguished by the action of a paramount power which assumes possession of the entire control of the land’ (Lord Haldane in Sobluza II v. Miller and others 1926 A.C., 518 at 525, quoted in Chanock 1991:671). As Chanock (1991) points out, customary rights do not reside in the peasantry but derive from a political authority.

The origins of customary and state control over land

The origins of the formulation of customary tenure date back to the early colonial period, to the failed attempts of the British colonial ad- ministration to control land and vest it in the colonial state, and to the ultimate creation of a system of Indirect Rule based on Native Authori- ties and chiefly rule. During the 1880s, the Gold Coast became the scene of a gold rush. Fearing that Asante would sign a trade treaty with France, Britain rushed to conquer the hinterland of the Gold Coast and

to occupy Kumasi in 1893-1894. In 1895, following the occupation of Kumasi, the status of the Gold Coast was transformed from a protecto- rate to a colony. This declaration overturned the Bond of 1844 in which a free trade colony in the southern Gold Coast had been negotiated be- tween African and European sovereigns of equal power. The Gold Coast was transformed into an imperial colony without consultation with the chiefs or people of the Gold Coast and without military defeat. This resulted in considerable concern among the people of the Gold Coast, which manifested itself in the organisation of opposition in the Aborigines Rights Protection Society (ARPS), an alliance of chiefs and business and intellectual elites on the Gold Coast. This transformation of the status of the Gold Coast had great significance for the land ques- tion. Fox Bourne (1901:41), a noted philanthropist of this period, com- mented on the British campaign against Asante:

One of the main motives of the expedition of 1895, not admitted till after its conclusion was, of course, command of the minerals in which the interior of the Gold Coast is supposed to abound. Before the troops had returned from Kumasi, in fact, several speculators had begun arrangements with local chiefs and others, with the objective of obtaining valuable concessions at low prices.

In the 1890s more than 400 mining companies were established on the Gold Coast and vast tracts of land were given out as concessions (Howard 1978; Kimble 1963). The largest concession in this period was an area of 100 sq miles, which became the site for Ashanti Gold- fields. Land was often acquired by Gold Coast property speculators who then sold it on to gold mining companies. In this period land transactions with foreign concessionaires were not the monopoly pre- serve of chiefs. The rapid pace of land sales were of concern to the co- lonial government, particularly since it had little control over the pro- cess. In 1894 the colonial government of the Gold Coast attempted to enact a Crown Lands Ordinance which would place ‘waste land, forest land and minerals’ under the British Crown and enable the colonial government to gain control over the granting of concessions. However, this was met with considerable opposition from the Gold Coast elite and the ARPS. The ARPS argued that the Crown Lands Ordinance was unconstitutional since the Gold Coast had not been established by con- quest, but by a treaty. They sent a deputation to London to appeal to the Privy Council. This resulted in the early development of a literature on customary land relations, written by the Gold Coast intelligentsia. The most important of these works included Fanti Customary Law by John Mensah Sarbah, which appeared in 1897, and two works by

Casely Hayford, The Truth about the West African Land Question which appeared in 1898 and Gold Coast Native Institutions: With Thoughts upon a Healthy Imperial Policy on the Gold Coast, which appeared in 1903. These works attempted to explain and codify local practices and address policy concerns arising from the British imperial presence. They suggested that customary practice was vital and that it should form the basis on which colonial rule built a modern African state. However, these writings largely represented propertied interests, and the growth of a stratum of concession lawyers and property speculators who had made considerable wealth from transacting land. The Gold Coast elite was legitimately concerned that the Crown Lands Ordinance and the vesting of land in the British crown would prevent them from engaging in land transactions and undermine their commercial inter- ests. However, they couched their positions in terms of the customary rights of Africans to land and the violation of customary land by colo- nial interventions, rather than in addressing the concerns of modernis- ing land relations and creating reforms to promote economic growth (Howard 1978).

The Crown Lands Ordinance was also opposed by British mercantile interests in West Africa, organised through the Liverpool, Manchester, and London Chambers of Commerce. They opposed increasing state intervention and argued that this would hinder private investment in West Africa. With increasing popular agitation against the Crown Lands Ordinance, the legislation was rescinded on technical grounds and replaced by the Lands Bill of 1897. The Lands Bill declared all waste land within the colony to be Crown Land. This formulation was again opposed by the ARPS, which following Mensah Sarbah (1897) ar- gued that all land on the Gold Coast had an owner, and that the de- claration of Crown Lands was a violation of the rights of the people of the Gold Coast. The Forest Bill of 1910 was also met by popular oppo- sition within the Gold Coast. The clauses to place all unused forest land under government for management for posterity were regarded as an attempt to re-introduce the Lands Bill through the back door (Kim- ble 1963).

During this period colonial policy circles for West Africa were po- larised by debates between those who supported constructivist imperi- alism and a morelaissez-faire policy based on liberalism. Constructivist imperialism, as advocated by Chamberlain, advocated direct interven- tion of the colonial government in promoting industrial investment in Africa to transform the economy. The liberals, on the other hand, whose position was vociferously advocated by E.D. Morel, supported the development of West Africa as a region of peasant agriculture pro- duction, producing agricultural resources for European markets with minimal interventions from the state (Cowen and Shenton 1994; Phil-

lips 1989). Those advocating constructivist imperialism supported con- trol of the land by the colonial state, while the liberals supported a more indirect arrangement involving alliances with the tribal nations of West Africa. The liberal position gained the ascendancy, and colonial administration was established through a policy of Indirect Rule, in which colonial rule was effected through an alliance with traditional ru- lers organised into Native Authorities, overseen by District Commis- sioners. From this period, the management of land came under the authority of chiefs, and the British colonial administration supported the privileges of chiefs and their control over land and natural re- sources. Chiefs were recognised as the only social group who could transact land. A theory of African communal tenure was developed, in which land was vested in chiefs to manage on behalf of the commu- nities. This effectively constrained the development of free land mar- kets and speculation in land, since land could now only be transacted by chiefs with concessionaires.

This theory of African communal tenure was largely worked out in southern Nigeria, through the precedence set in the case of Amadu Ti- jani, which was brought before the Privy Council in London in 1928. During the nineteenth century, land sales were prevalent in the Lagos Colony, with many migrants including the Saro, recently returned Bra- zilian freed slaves, purchasing significant tracts of land. In the nine- teenth century, land in Lagos lay under the control of the Idejochiefs, who had the power to allocate unoccupied land under their jurisdiction to family heads and migrants (Cowen and Shenton 1994). The Idejo

shared temporal and spiritual power with the Akarigberes (the royal chiefs), the Ogalades (spiritual chiefs), the Agagbons (war chiefs) and the Oba, the political head of Lagos society. Cowen and Shenton (1994:232) stress that this complex of power:

(...) never had the time to become ‘traditional’. Rather, it was an accretion of the political culture of those who had made Lagos their home, further modified in an accelerating fashion from the beginning of the nineteenth century onwards as a result of economic growth and the dramatic increase in immigration into the Lagos area, which followed the economic expansion of Lagos.

By virtue of their control over land, the power and economic wealth of the Idejo chiefs had grown during the nineteenth century. By 1910, over half of Lagos land had been sold to migrants. In 1913, the govern- ment of Southern Nigeria expropriated 250 acres under the Public Lands Ordinance of 1903. TheIdejochief of this land, theOluwa, Ama- du Tijani applied for compensation, claiming that the land constituted

a portion of his personal estate. The claim was rejected by the Supreme Court of the colony on the basis that it had no validity in customary law. The Oluwa appealed to the Privy Council in London. In their ap- peal to the Privy Council, the council for theOluwa changed the origi- nal petition, arguing that the land in question constituted the land of the community, of which the Oluwa was the elected head and trustee. Compensation was demanded upon the basis of trusteeship over cus- tomary land. The case revolved around what constituted authentic Yor- uba customary law, and this was established through readings of mis- sionary and government official reports. The final decision found that individual ownership was foreign to native ideas, and that land was vested in communities or families, but not individuals. While commu- nity members held rights to use the land, the land was vested in the chief as its trustee. The Privy Council rejected the nineteenth century history of Lagos as an aberration. Quoting from Chief Justice Rayner’s

Report on Land Tenure in West Africa,Lord Haldane declared: ‘There is a pure native custom along the whole length of the coast, and wherever we find, as in Lagos, individual owners, this is again due to the intro- duction of English ideas’ (quoted in Cowen and Shenton 1994:242). The Oluwa won his claim to compensation, but only by acceding to British colonial notions of what constituted communal or customary te- nure. The ruling on this case now set a precedent for the whole British Empire on what constituted communal land tenure. Cowen and Shen- ton (1994) argue that this conception of communal land tenure was rooted in European philosophical notions rather than in an empirical analysis of land relations in African societies.

In the Gold Coast, this theory of communal land tenure was used to constrain and control land sales. Land was vested in the hands of para- mount chiefs who possessed allodial rights over land, and who were the only social group able to sell land. Through control over paramount chiefs, the colonial government was able to control land. The construct of customary land that developed in the 1920s sits uneasily with his- tory. It did not reflect the social relations and transactions in lands that had existed in the nineteenth century. In Asante, for instance, wealthy lords and chiefs could sell and pledge settlements under their control, including both land and inhabitants. Wilks (1975) writes that in the nineteenth century the Mamponhene sold the three villages of Safo, Nantan, and Asoromaso, in the vicinity of Ntonso to the Asantehene

Opoku Ware for 100 peredwan (225 ounces) of gold. Wilks (1975:107- 108) comments:

Although sales prices have not been systematically recorded and analysed the market in towns and villages was clearly a lively one. One Asokorehene (...) sold to Kumase the town of Asokore

and all of its villages (...). When Nunu Akyeremadehene of Ku- mase, incurred a debt of 30 peredwans, he decided to put his land and people up for sale; the Asantehene Osei Kwadwo pur- chased them, and granted them to the new Hiawu Stool.

Early land sales on the Gold Coast

In the southeast of the Gold Coast, land sales had developed during the early nineteenth century, as Krobo and Akwapem farmers ex- panded their territories beyond their boundaries into land under the Akyem. These lands were not purchased from paramount chiefs, but often from town chiefs. Originally, the Krobo entered into oil palm pro- duction by seizing lands from their neighbours. As they began to devel- op a prosperous economy, they sued for peace with their neighbours, offering to pay them compensation for lands they had seized and money for any other lands they were willing to sell (Amanor 1994). In the period between 1830 and 1850 land sales began to develop in this area. The main vendors of land were the chiefs of Akyem Abuakwa, and the main purchasers of land were the Krobo and the Akuapem. Among the Krobo, the military companies that were involved in seizing land were transformed into land purchasing companies, and the var- ious sections of Krobo methodically purchased land from their neigh- bours, gradually extending their territory through the purchase of con- tiguous blocks of land. The Krobo political structure of sectional chiefs (wetsongwatsemei)and generals (asafotsemei) of the various sections and subsections negotiated the purchase of land from Akyem town chiefs on behalf of their subjects (Amanor 1994).

The early land sales were transacted with a particular ceremony known as the guaha, which represented a contract. The ceremony be- gan with the potential buyers presenting the sellers with drink, which in the early days was rum. The buyers notified the sellers of their inter- est in purchasing land. The sellers identified suitable land, and the two parties to the contract negotiated the price. After the conclusion of the contract, the sellers then performed a libation in which they reiterated that the land had been sold outright to the buyers. The sellers then called on the ancestral spirits of the land to vacate the land and settle elsewhere. The ceremony was concluded with the buyers and sellers each putting forward a child who squatted on the ground facing each other. A leaf from a plant known as Kesenekesene,or from a palm tree, was given to the children. The children pulled the leaf tight until it tore and each party retained the portion of the leaf as evidence of the trans- action. In the case of a dispute, the witnesses to the transaction would come forward and the two halves of the leaf would be pieced together

to see if they fit. Children were used since they were likely to live long- er as witnesses to the transaction than elders (Opoku 1963).

From the mid-nineteenth to early twentieth century large areas of Akyem territory were alienated to migrants. In the case of the Krobo, much of this territory was incorporated into the Manya and Yilo Krobo states. From the late nineteenth to early twentieth century, many of the land sales were drawn up in written documents. An instance of this is the sale of the land of Odometa by the town chiefs of Begoro in Akyem Abuakwa to the Krobo:

Know all men by these present that in consideration of the sum one hundred and seventy four pounds and three sheep paid to us and our Chief Gyamarah of Begoro we agreed and approved and sold Odumetta land to Konor E. Mate Kole of Odumase Eastern Krobo (…).

Therefore at a meeting at Sontreso plantation on 25th October 1907 it was unanimously agreed by ourselves being the Chief and elders of Begoro, to confirm that the abovementioned land is henceforth for ever to be recognised as the property of Kono Mate Kole and his sons and heirs.

And we further promised to help, defend, and assist the said Ko- nor Mate Kole, his sons and heirs against any attempt to dispute their rights to or to disturb them in occupation, and use the said land which is their bona fide property.

We therefore in the Year of Our Lord 1907 and on the 28th day of October at Sontriso plantation do make this paper in the pre- sence of the witnesses whose signatures and marks are here at- tached given in good faith to the said Konor Emmanuel Mate Kole of Eastern Krobo a substantial title to the abovementioned land.2

Early land sales, before the advent of Indirect Rule, took place within an institutional context that recognised the rights of town chiefs to sell land and the perpetual alienation of the land in these transactions.