“Koo Kaa” is an Akan slang term that translates loosely to shouting or noisemaking. The news that portions of the Achimota forest lands have been degazetted and released to the Owoo Family has been met with varied emotions and reactions, many of which have been expressed loudly.
The aim of this article is to ensure that beyond the discussions and debates on the degazetting of portions of the Achimota Forest, we begin to take concrete steps at clarifying the legislative framework for the management and utilisation of forest resources in accord with the commitment of the commercial benefits of forests and the conservation advantages of preserving our forest reserves.
The decision of the current government, which is anchored on the decisions of previous governments, draws legitimacy from the Forest Act of 1927 (CAP 157).2 This 1927 law remains the law that vests government with the power to constitute lands as forest reserves. Section 2 of CAP 157 provides as follows:
Creation of forest reserves
Subject to section 21 the President may by executive instrument, constitute a forest reserve, (a) (b) (c) (d) lands that are the property of the Government; stool lands, at the request of the relevant authority; private lands, at the request of the owner; lands in respect of which the President is, on the advice of the Forestry Commission.
With specific reference to the Achimota Forest, the reserve was created on land which was compulsorily acquired by the government. Two tracts of land were acquired from the Owoo Family, in 1921 and 1927, by a certificate of title, made pursuant to the Public Lands Ordinance of 1876. Thus, prior to the creation of the reserve in 1927, the government owned the land. Government has given reasons for the release of the land to the Owoo family. This article aims to test the legal accuracy of the actions of government and propose recommendations on how to protect the forest estate of Ghana.
Legal Framework for the management of forests
The current legal framework for the regulation and management of forests in Ghana is a perilous quagmire of constitutional obligations fleshed out through substantive and procedural provisions in scattered Acts of Parliament and legislative instruments. The scattered nature of the legislation and numerous piecemeal amendments of these laws over the years has left a maze of fragmented and sometimes inconsistent provisions as its heritage. The already complex domestic legal framework is further layered with obligations under international conventions, treaties, and agreements.
The oldest legislation on Forest in force in Ghana is the Forest Act of 1927. The 1927 Forest Act provides the conditions and procedures to establishing forest reserves by the government. This piece of legislation has seen some amendments and consolidations with the aim of harmonizing its provisions. The Forest Act of 1954 consolidated preceding forest Acts and ordinances from 1927 to 1949.
This consolidated Act was subsequently amended. For instance, the provision in the consolidated Forest Act relating to a Forest Improvement Fund was repealed by the Forest Improvement Fund Act, which in turn was repealed in 2000 by the Forest Plantation Development Fund Act (Act 583). Also, provisions on forest offences were repealed by the Forest Protection Act in 1974 (NRCD 243) with subsequent amendments in 1986 (PNDCL142) and 2002 (Act 624). The provisions of the Forest Act still in force must be read with the necessary modifications to give effect to the Timber Resources Management Act 1998 (Act 547).
The legalities of degazetting forest reserves.
The Forest Act of 1927 vests the power to degazette a forest reserve in the President. Section 19 of the Act provides that: “The President may, if satisfied that a particular land should not be a forest reserve, by executive instrument published in the Gazette, direct that from a date specified in the order the land or a portion of that land reserved under this Act shall cease to be a forest reserve.”
From the above provision, two conditions must be satisfied before the degazetting of a forest reserve. The first condition is that “President being satisfied that the land should not be forest reserve” and second “by executive instrument published in the Gazette” direct that the said land ceases to be a forest reserve.
From the available information contained in the press statement of Government on the degazetting of portions of the Achimota forest land, Government was “satisfied that a particular land should not be a forest reserve”. The conclusion was reached based on recommendations made by committees set up by previous governments to inquire into the issue of releasing lands to the Owoo family. Subsequently Government issued Executive Instrument 144 (Cessation of Forest Reserve), 2022 to degazette portions of the Achimota forest. In the main, Government appears to have followed the prescriptions of the Forest Act in degazetting the Achimota forest. So why the “Koo Kaa”?
First, the locus of power to degazette is being questioned. There is a school of thought that has called the validity of E.I 144 into question in light of the coming into force of the Land Use and Spatial Planning Act, 2016 (Act 925). Section 93 of Act 925, when read together with the interpretation Act 925 gives to “Public Place”, indicates that the power of the President under the Forest Act 1927 to solely declassify a Forest reserve no longer exists. That by Act 925, the degazetting of a forest reserve constitutes a rezoning or change of use of a public space and therefore requires the approval of parliament.
Section 93 (1) and (4) of Act 925 reads:
93. (1) Where a person seeks to change the zoning of the whole or part of a piece of land, that person shall apply in writing to the District Spatial Planning Committee of the district to which the change relates in the form prescribed in the zoning regulations and planning standards.
(4) Without limiting subsection (3), the change of use or re-zoning of a public space shall be subjected to approval by Parliament.
A public space has also been defined as: “public space” which means a generally open area accessible to and used by the public including resource lands, urban utility space, riparian buffer zones, natural park areas, forests, urban parks, recreational areas, infrastructure right of way, areas of cultural or historical interests;
This argument of implied repeal of the President’s power to issue an E.I to de-classify a forest reserve is based on the legal maxim legis posteriones prones contrarias abrogant – where the provisions of later legislation are inconsistent, or cannot stand, with the provisions of existing legislation, the later legislation repeals the existing Act. Thus, because the Land Use and Spatial Planning Act, 2016 (Act 925) is later in time to the Forests Act of 1927, it has impliedly repealed the Forests Act, and with it, the President’s power to create and declassify a forest reserve by issuing E.Is.
There is also another school of thought that argues that E.I 144 is valid and carries the full force of law. Their argument is anchored on the generalia specialibus non derogant legal maxim. The generalia specialibus maxim operates on the basis that a special provision; in this case Forest Act 1927, overrides a general provision (Act 925) of law, irrespective of time of passage. The generalia specialibus principle, therefore, operates as an exception to the general rule that where the provisions of a later Act are inconsistent with or cannot stand with the provisions of an existing Act the later Act repeals the existing Act.
Act 925 was enacted to regulate the land use and spatial planning, provide for sustainable development of land and human settlements through a decentralized planning system, ensure judicious use of land to improve quality of life, promote health and safety in respect of human settlements and to regulate national, regional, district and local spatial planning, and generally to provide for spatial aspects of socio-economic development and for related matters. Whereas the Forests Act was enacted to protect forests and for the constitution and protection of forest reserves and to provide for related matters. In analysing the two laws, it is evident that the Act 925 is a statute of general application whereas the Forests Act is a special legislation enacted to specifically cater for the protection and constitution of forest reserves.
In my considered view, there is an apparent incoherence between the Forest Act 1927 and Act 925 on whether it is the Executive or Parliament that has the power in law to declassify forest reserves. This incoherence in the legislation creates fertile grounds for either of the two schools of thought to be presented as accurate interpretation of the power to declassify forest reserves. This matter might be resolved definitively by a Court of competent jurisdiction.
The second reason for the “Koo Kaa” is the allegation that compensation was not fully paid to the Owoo family when the said land was compulsorily acquired, and that the degazetted portion was given out in lieu of unpaid compensation. When it comes to the payment of compensation in relation to land compulsorily acquired, the 1992 Constitution provides in Articles 20 (5) and (6) as follows:
Article 20 (5) and (6) provides thus: “(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.
(6) Where the property is not used in the public interest or for the purpose for which it was acquired, the owner of the property immediately before the compulsory acquisition, shall be given the first option for acquiring the property and shall, or such re-acquisition refund the whole or part of the compensation paid to him as provided for by law or such other amount as is commensurate with the value of the property at the time of the re-acquisition.”
The Supreme Court interpreted the scope and effect of Article 20 in the case of Nii Kpobi Tettey Tsuru III v. The Attorney-General3 by noting the following:
“Since no good reason has been urged on this Court why it should depart from its previous decision on the matter, I am in line with the provisions in article 129 (3) not departing from the previous decision of the Supreme Court. Acquisitions of interest in land done prior to 7/1/1993 are not affected by article 20 of the Constitution.”
From the above decision of the Supreme Court, since the lands in question were compulsorily acquired from the Owoo family prior to 7th January 1993, the Owoo family does not have any claim whatsoever under article 20 of the 1992 Constitution to compensation or request for land in lieu of compensation. Any remedy in law for the Owoo family for alleged non-payment of compensation must be considered against the regime for compulsory land acquisition by government of 1921 and 1927. Thus, compensation or land in lieu of compensation cannot be the basis or reason for releasing lands to the Owoo family.
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Thirdly, there is “Koo Kaa” because there is the belief that the 1927 Forest Act is no longer in sync with the commitments of government to the protection of the environment. Government has made commitments in the fight against climate change and degazetting a forest reserve, albeit with the view of the degazetted portions being developed in an eco-friendly manner, does not accord with these commitments.
Article 269 of the Constitution requires any transaction in the grant of the right to exploit natural resources to be ratified by Parliament. The nature of the transaction involving the release of land to the Owoo family is not a transaction in the release of mere state land. It is a transaction that involves the degazetting of a forest reserve created over state lands not stool lands for national purposes. This means that the President holds these state-land-forest reserves in trust for the people of Ghana, like any other natural resource. This type of state-land-forest-reserve in my view should be considered a “natural resource” and any transaction or contract over this type of land must be subject to parliamentary ratification. This argument which seeks to subject any transaction including change of use involving state-land-forest-reserves to parliamentary ratification is anchored on the intendments of the framers of the constitution on the protection of natural resources and the environment as captured in Article 36 (1) (9) as follows:
The State shall take appropriate measures needed to protect and safeguard the national environment for posterity; and shall seek cooperation with other states and bodies for the purposes of protecting the wider international environment for mankind.
Involving the representatives of the people in deciding on whether to hand over portions of the state- land-forest-reserves would mute the “Koo Kaa”. on the use of executive discretionary powers in degazetting forest reserves.
The final reason for the “Koo Kaa” is the use of E.Is to gazette and degazette forest reserves. Under the Forest Act 1927, E.Is are the prescribed mode for gazetting and degazetting forest reserves. E.I 144 has clauses that introduce “restrictive covenants” on how the released lands are to be developed. The effect of “restrictive covenants” contained in the E.I 144, requiring the leaseholders to abide by eco-friendly prescriptions in the development of the land, is problematic and might not stand legal scrutiny. The President’s power in the 1927 Forest Act is limited to gazetting and degazetting forest reserves. It does not appear to include the power to prescribe how state lands that have been degazetted and leased to private persons should be developed. For the “restrictive covenants” contained in E.I 144 to have the needed effect, it should have been captured in the leases executed in favour of the Owoo family and not E.I 144.
The issuing of an E.I to change in the use of state-land-forest-reserve in my opinion should be considered as an exercise of legislative authority by the Executive and subject to parliamentary scrutiny. I am aware this issue has been discussed in the case of Exparte Bombelli4 and recently in the case of Association of Finance Houses v. Bank of Ghana and Attorney General5 where the Supreme Court seems to have introduced a new specie of E.Is.
It is my considered view that issues surrounding the gazetting and de-gazetting of forest reserves held in trust for stool or state-land-forest-reserve should be a legislative function. The establishment of forest reserves should be done by legislative instruments to provide safeguards for their perpetual integrity. Ghana’s laws follow a vertical hierarchy. Hence, a legislative instrument can only be repealed by another legislative instrument, an Act of Parliament, or the Constitution of Ghana. A legislative instrument establishing a forest reserve would remain in force until it is repealed by either another legislative instrument or an Act of Parliament.
The 1927 legislation which grants the President powers to declassify forest reserves, is outdated and not in sync with intention of government as captured in the 2012 Forest and Wildlife Policy and the number of commitments aimed at fighting deforestation and climate change, made both on the domestic and international level. It is instructive to note the Government has placed before Parliament, the Wildlife Management Resource Bill which has clauses that require that Protected Areas, including Forest (Resource) Reserves, be created by the promulgation of legislative instruments. This will mean that Parliament will play a role in the creation and de-creation of Protected Areas. The intention of government as contained in Wildlife Bill 2022 also grounds the argument that the use of E.Is to create and de-create forest reserves is no longer a preferred procedure and a legislative process by means of passage of legislative instruments is a preferred option.
Beyond the “Koo Kaa”
The Ministry of Lands and Natural Resources has taken certain interventions since the issues became public. These interventions include assuring the public that the Achimota Forest is intact, with the issuance of E.I 154 and the declaration of some alleged grants made to the former Chief Executive of the Forestry Commission as void. Parliament is also calling for a probe into the allocation of State Lands. Civil Society Organisations are also demanding a Commission of Inquiry and have also petitioned the Commission on Human Rights and Administrative Justice to also investigate alleged conflict of interest in the procedures surrounding the allocation of portions of the Achimota Forest lands.
These actions and interventions are laudable, but ‘how do we prevent another Achimota Forest Saga?’ is the problem of the day. We can take a leaf from how Liberia handled the issue of a raid on its forests. The Liberian Ministry of Justice indicted eight ex-government officials for facilitating the award of secretive illegal logging concessions, known as Private Use Permits (PUP). These permits covered 40 percent of Liberia’s forests, and in December 2012, the Liberian government found all 63 PUPs to be illegal and subsequently canceled all these permits. The issuance of these illegal permits was possible because of the then legal framework for the management of forests in that country. This incident led to an overhaul of the legal framework and the passage of the National Forestry Reform Law of Liberia. This Law makes provisions, in 22 Chapters, for the management and conservation of forest resources in Liberia, defines ownership rights and other rights in forests provides for the protection of the environment and wildlife in forests, regulates the trade in forest products, and provides for various other matters relative to forestry and wildlife.
The Achimota forest reserve saga is a watershed moment for Ghana. Leases granted can be canceled; persons can be found to have acted in conflict of interest and even prosecuted. But if we do not take steps to clarify and consolidate our forest legislation, we will not have worked to safeguard the nation’s forest estate. We will still have outdated legislation such as the Forest Act 1927 determining how we manage our forest reserves in 2022.
Beyond the “Koo Kaa”, the following are recommended:
1. Consolidation of the Forest Laws in Ghana – This will provide an opportunity for updating the laws on forests and to provide clear guidelines on management and utilisation of forest resources.
2. The Consolidated Forest Law must provide clarity on the different classes of Protected Areas. There are different classes of protected areas these include – National Parks, Resource Reserves, Wildlife Sanctuaries, and Strict Nature reserves among others. The Wildlife Bill currently before Parliament has some of these classifications, however, we need to harmonize these provisions and create a coherent body of law on what activities may be undertaken in these protected areas including the procedures for declassifying. The law should provide that the declassification of protected areas should include stakeholder involvement and end with a passage of a Legislative Instrument by Parliament. This will give permanency to areas demarcated as and protected areas. Also, to also give permanence to these categories of protected areas, the Forest Act should be amended to require the Legislation to be specific on the reason for the categorization.
3. Immediate steps must be taken by Government to safeguard the status and boundaries of all forest reserves through a legislative process. Forest reserves established by E.Is should all be converted to forest reserves established by legislative instruments. This will ensure that the declassification of these forest reserves is done with the involvement of Parliament.
Conclusion
The Achimota forest issues offer us an opportunity to retool our legal framework for the management of forest resources. Having a sound legal framework for the management of forest resources is a sine qua non for the effective enforcement of rules on the management of forest reserves. Where the rules are outdated, incoherent, unclear, and discretionary, we will not be able to safeguard and protect our forest reserves. This existing legal framework has proved to be ineffective, and we must act to put in place an effective legal framework. Aside from the numerous calls for a Commission of Inquiry into the allocation of State lands and the cancellation or reversal of all allocations of State lands, an enduring legacy beyond the “Koo Kaa” on the Achimota forest reserve saga would be a decision by government to consolidate the forest laws of Ghana to create a robust legal framework for the legal, sustainable, and equitable management of the forest estate of the country.
We cannot afford to let this opportunity slip by. We must act beyond the “Koo Kaa”. We need a legal framework that brings clarity to the procedure for declassifying forest reserves to guide future actions. The state of the current legal framework does not provide us with that clarity. If nothing is done, there will be another moment of “Koo Kaa”. I provide below, a draft table of content for Consolidated Forest Law:
CONSOLIDATED FOREST BILL, 2022
AN ACT to re-establish the Forestry Commission, amend and consolidate the laws on forestry to provide for the growth and development of Ghana’s forest estate, the regulation of the utilisation of forest resources, the re-development, conservation, and sustainable management of those resources, the coordination of national and international policies related to them and provisions for related matters.
PART I – ESTABLISHMENT OF FORESTRY COMMISSION
PART II – CREATION OF RESERVES RESOURCES
PART III – MANAGEMENT AND UTILIZATION OF FOREST RESOURCES
PART IV – CLIMATE CHANGE AND BIODIVERSITY
PART V – COLLABORATIVE RESOURCE MANAGEEMENT AND FOREST PLANTATION PART VI – FOREST IMPROVEMENT FUND
PART VII – PROTECTION OF FORESTS
PART IX – PART XII- OFFENCES
PART X – MISCELLANEOUS
Let the drafting begin!
The Author is a Senior Lecturer at the Faculty of Law, Ghana Institute of Management and Public Administration, and a Partner at TaylorCrabbe Barristers and Solicitors. The opinions expressed in this paper are those of the author and do not reflect in any way those of the institutions to which he is affiliated.
