65868 CaRbon RIGhts In Ghanaa Case study by Y. b. osafo Carbon Rights in Ghana I Key Points For Ghana’s national REDD+ scheme to be viable, the rights to carbon or the emission credits generated must be clearly delineated, and be accompanied by equitable and efficient benefit sharing systems. There are a number of approaches that the State can use to determine whom to vest the right to carbon in. If defined as a natural resource, the state would be vested with the rights. If recognized as an ecosystem service, then the right to the benefits would be vested in the owner of the trees. In the latter case, the beneficiaries will differ depending on whether the trees are naturally occurring or planted. The main opportunities in REDD+ in Ghana are in the afforestation and reforestation of forestlands and degraded lands. It is possible that REDD+ could provide additional resources to build on existing systems that promote tree planting on degraded land, such as the National Forest Plantation Development Plan (NFPDP), by providing additional incentives in reserve and off-reserve areas. THE WORLD BANK II Carbon Rights in Ghana The findings, interpretations, and conclusions expressed herein are those of the author(s), and do not necessarily reflect the views of the funders. Supporting research for this document was carried out from July to October 2010. Cover photo by Curt Carnemark background how it would comply with the World Bank’s social and environmental safeguards REDD+ offers monetary incentives that could before the grant agreement, which funds the complement Ghana’s efforts to conserve what implementation of Ghana’s R-PP and national remains of its forest estate and further expand REDD+ strategy, is signed (Bamfo, 2010). forests. State managed forest reserves, covering In Ghana the main drivers of deforestation an area of 1.6 million ha, have been depleted are agricultural expansion, illegal logging and and, to a large extent, degraded: less than 2% fuel wood collection. Since the 1990s, a number of forest reserves are said to be in excellent of statutes, regulations and development plans condition, and no less than half have been originating in the Forest and Wildlife Policy described as ‘mostly degraded or in worse 1994 (FWP), have been introduced in an attempt condition’ (Treue, 2001; Bamfo, 2010). to reverse the effects of decades of unsustainable Outside the reserves, what are known as forest management policies and practices. The the “off-reserve forests� occupy an area of primary objective of most of these reforms is 4.5m ha and are made up of scattered trees to safeguard the State’s timber resources. Some on agricultural fields, secondary forests of the other objectives, like the enhancement regenerating from agricultural farming, riparian of [degraded] forest estates, conservation of forest strips along streams, sacred groves and biodiversity and rural community participation, some closed-canopy forests, making them are compatible with those of REDD+. If Ghana unprofitable to manage (Kotey et al., 1998; is to benefit from REDD+, key stakeholders, Abebrese, 2002). In Ghana, degradation is for example the farmers and forest dependent presumed to contribute more to forest carbon communities who contribute to a significant stock reduction than deforestation (Hansen et proportion of the deforestation rate, must be al., 2009). As REDD has expanded to include suitably incentivized, for example through other activities, such as the sustainable ensuring their share in the benefits generated management of forests and the enhancement by REDD+. Although rural community of forest carbon stocks (“REDD +�), Ghana participation has been sought, the necessary has a real opportunity to benefit, given the changes to tree tenure that would incentivize potential for the enhancement of forest carbon these stakeholders have not been made yet. stocks through afforestation and reforestation activities. To take advantage of this, Ghana has been participating in the World Bank’s Forest Rights to land Carbon Partnership Facility (FCPF) that aims to assist developing countries in building While Ghanaian law is yet to determine capacity for REDD+. So far, Ghana’s Readiness the rights to carbon, issues of land and tree Preparation Proposal (R-PP) has been approved. tenure, particularly between the State and the It is currently in the process of demonstrating landowners, are clearly dealt with. Article Carbon Rights in Ghana 1 “There is a long history of derived rights being granted in the forest areas of southern Ghana, particularly for agriculture.� which are held by the State, all other rights and interests are generally held by the landowner whether it is the Stool, families or communities. There is however a long history of derived rights being granted in the forest areas of southern 257(1) and (2) of the 1992 Constitution vests Ghana, particularly for agriculture. For example, all public lands in the President on behalf of, tenancies and share-cropping arrangements and in trust for the nation. This includes all are common and involve more than half of the land acquired by the State before 1993 and resident rural population. Land is often leased after, which includes all the forest reserves to tenant farmers whether stool or non-stool that were demarcated for that purpose. There subjects. The rights that tenants enjoy depend is a fundamental difference between the State- on the terms of the lease they agreed to with managed forest reserves and the off-reserve the landlord. Normally this entails sharing the forests. Although the allodial title1 to the produce with landlord by an agreed ratio. land is held by the Stool or Skin2 of the forest reserves, the rights to the forest resources and the effective management control are vested in the State. This means rights of entry and Right to naturally-occurring exploitation are restricted and subject to the resources permission of the State. In the off-reserves on The customary and statutory laws of Ghana the other hand, rights, interests and entitlements are configured in such a way that ownership in land and trees (except for commercial rights of land does not necessarily translate into to the tree) are founded on the customary system ownership of the naturally-occurring resources of land tenure and administration. This means the land holds. Ghanaian customary law and aside from the commercial rights to the tree, administration support the plurality of rights, interests and entitlements in land and forest 1The allodial title is in essence a title to a property, resources. Non-public land can be owned by normally land, where the ownership of the land is families, communities or groups with multiple- unencumbered and the owner of the land has absolute ownership of the land––i.e. does not derive their title from a use rights vested in the members that can co- superior landlord. Title to land cannot be taken away by law. exist at the same time and on the same parcel of 2 The word ‘Stool’ or ‘Skin’ essentially refers to the monarch land (Tsikata et al, 2008). In the Krokosua Hills or sovereign of a particular community. In the Southern part of Ghana where the Chiefs sit on stools, the term ‘Stool’ forest for example, fringe communities continue is used to symbolize the Chieftaincy while in the North of to retain their right to harvest non-timber forest Ghana where the Chiefs sit on animal skin, the term ‘Skin’ is used. Stool lands are defined in Section 18 of the Office of products (NTFP) for subsistence purposes, the Administrator of Stool Lands Act, 1994 as “…any land while the rights to timber are still vested in the or interest in, or right over, any land controlled by a stool or skin, the head of a particular community or the captain of a State (Asare, 2010). company, for the benefit of the subjects of that stool or the Similarly the Ghanaian Constitution, like members of that community or company�. most other African country constitutions, vests 2 Carbon Rights in Ghana the rights to minerals and natural resources that are planted. The rights to the commercial in the State irrespective of whether it is on exploitation of naturally-occurring trees have private or public land.3 Article 268(1) of the always been vested in the State4 and it remains Ghanaian Constitution vests in Parliament the a statutory offence to harvest in the reserves responsibility of ratifying any agreement that or off-reserves without the State’s consent.5 involves the granting of rights to or concessions The law on rights to planted trees on the other for the exploitation of minerals and natural hand, has been amended in order to encourage resources. It also gives Parliament the authority afforestation, reforestation and private to exempt a class of transactions from this plantations. The amended section 4(3) of the provision (Article 268(2)) and to delegate the Timber Resource Management (Amendment) authority to approve such transactions without Act, 2002 (Act 617) now prohibits the granting referring to Parliament to the relevant State of timber rights on private forest plantations bodies, known as “Commissions� (Article and land with trees grown or owned by private 269(2)). In the case of forestry, Article 269(1) of persons. the Constitution provides for the creation of the This distinction is also reflected in the way Forestry Commission, which was established the revenue from the exploitation of natural by the Forestry Commission Act, 1999 (ACT resources is shared between the beneficiaries. 571). Under Act 571, amended by the Timber Revenue from the harvesting of naturally- Resources Management (Amendment) Act, 2002 occurring trees is shared between the State (Act 617) this transaction approval function was and the beneficiaries listed in Article 267(6) delegated to the Forestry Commission, which of the Ghanaian Constitution and according to has overall responsibility for the management the formula in Article 267(6). Currently, sixty and utilisation of forestry resources. The percent of the revenue from the harvesting explicit reference to the vesting of the rights to of timber in the forest-reserves is retained by trees or timber in the President is in Section 16 the State with the remaining forty percent of the Concessions Act of 1962. distributed among the beneficiaries listed in Article 267(6) (Birikorang, 2009). Under Article 267(6), the Stools and the Traditional Distinction between naturally- Authorities,6 whom the Constitution and occurring trees and planted trees customary law regard as the customary landowners and administrators of Stool lands, Ghana’s laws now make a distinction between the rights to naturally-occurring trees and those 4 Section 16(4), 1962 Concessions Act (Act 124) 5Timber Resources Management (Amendment) Act, 2002 3 Implementing legislation covering the exploitation of (Act 617) natural resources like minerals or timber such as the 6 Traditional Authorities can be described as the governing Minerals and Mining Law, 1986 (PNDCL 153) as amended by the Minerals and Mining (Amendment) Act, 1994 (ACT body that helps the Chief govern his traditional area. It is 475) and the 1962 Concessions Act (Act 124) also affirm normally composed of the Chief, his elders and in some this. ethnic groups, the Queen mother. Carbon Rights in Ghana 3 are entitled to twenty percent and twenty-five Many prefer to illegally remove the trees before percent of the revenue that is set-aside for the the logging companies harvest and damage beneficiaries, respectively. The remainder is their farms in the process, without paying shared between the Office of the Administrator adequate compensation (Bamfo, 2010). Legal of Stool Lands (OASL) and the District requirements in the form of contract known Assemblies. In the off-reserves, the revenue as a “Social Responsibility Agreement� (SRA) is split fifty-fifty between the State and the have been introduced by the State. These above beneficiaries. This arrangement is in a agreements mandate logging companies to memorandum of understanding (MOU) that has commit no more than 5% of the revenue from been respected by all parties (Birikorang, 2009). the timber harvested to provide social amenities The problem with this benefit-sharing (normally in the form of schools, clinics and arrangement is that the Constitution excludes other facilities) for the communities where the key stakeholders, such as the farmers and concession was given.7 The SRA has however forest-dependent communities whose buy-in failed to incentivize the farmers and local is critical in any effort to reduce the rates of communities from illegally removing trees. degradation. The law does not recognize them This is because most of the logging companies as beneficiaries, nor are they entitled to revenue do not fulfil their contractual obligations to from harvesting. In the case of the farmers in provide these amenities. In other cases where the off-reserves, the Stool is required to consult the companies give the funds to the Stools for them when concessions are being given over that purpose, the funds are misused by the the trees on their farms, yet this rarely happens. Stool and not actually spent on the communities (Ayine, 2008; Bamfo, 2010). The district offices of the Forestry Commission, in charge of monitoring and ensuring these obligations are met, have also failed to fulfil their duties. This suggests that the failure of the SRA to stop farmers from illegally removing trees is not due to a lack of incentives per se. “…the Constitution excludes Owners or planters of planted trees on key stakeholders, such as the the other hand have a significantly better deal than the key stakeholders in naturally- farmers and forest-dependent occurring forests (farmers and forest dependent communities whose buy-in is communities) or the Constitutional beneficiaries (Traditional Authorities, Stools, OASL and critical in any effort to reduce the rates of degradation. 7 Section 13(1)(b), Timber Resource Management Regulation, 1998 4 Carbon Rights in Ghana District Assemblies). They are entitled to the equitable allocation of benefits to key keep 90 percent of the revenue earned from stakeholders. While it is unlikely that Article harvesting with the remaining 10 percent going 267(6) of the Constitution will be amended to the State. It is also worth highlighting that to make these key stakeholders beneficiaries, while women and children are increasingly the State could find ways to incentivize them being recognized as a vulnerable group, this without necessarily engaging in wholesale legal has not yet translated into special treatment or and policy reforms. Using naturally-occurring prioritization with regards to ownership rights trees as an example, the State could simply or benefits to revenue from harvesting unless negotiate an increase in the charge for timber they planted the trees themselves (Bamfo, 2010). management services, as provided for in Section 26(1) of the Timber Resource Management Regulations 1998, and allocate a proportion of Defining carbon the revenue to farmers and forest-dependent communities. Benefits could be distributed There are a number of approaches that the State to those that are able to reduce incidents of can use in determining whom to vest the right degradation in their locality. This template to the carbon in. First, the State could choose could also be used for the revenue from carbon to define carbon as a natural resource given credits in instances where the farmers and the its naturally occurring nature; thus it would forest-dependent communities do not have decouple carbon from its host, in this case trees, interests or rights in the benefits. and thereby treat it as a separate commodity. In this case, constitutionally, the State would be vested with the rights to carbon. Alternatively Providing incentives for the State could recognize the ecosystem services enhancement of forest carbon stocks provided by the trees acting as sinks as being responsible for the carbon credits generated Providing incentives to private entities to and vest the right to the benefits in the owners participate in afforestation and reforestation of the trees. Using the latter approach, the projects in degraded forest land by awarding implications on whom the benefits from the rights to the planted trees and carbon is a vital carbon will accrue to will then depend on a requirement, given the fact that Ghana could whether the trees are naturally-occurring or gain much from the “+� part of REDD. The planted. Timber Resource Management (Amendment) In situations where the rights to carbon or Act, 2002 partly does this by assigning the rights carbon credits would be vested in the State and of tenure to the planters, but only in regard to shared according to the Constitutional formula, the tree, not the carbon. As stated above, the it is doubtful that incidents of degradation State has not yet decided on whom the rights to will decrease without tree tenure reform or carbon will be vested in. Aside from the change Carbon Rights in Ghana 5 in law on rights to planted trees, the State has to stay longer on the land and to continue also implemented a programme known as the cultivating food crops in order to generate National Forest Plantation Development Plan income. Farmers explained that they could (NFPDP) that aims to develop a sustainable not afford to wait for 20-plus years to receive forest resource base. The NFPDP was launched financial benefits (Bamfo, 2010). It is hoped that by the President of Ghana in January 2010 with annual revenue from REDD+ would provide an ambitious target of reforesting an area of additional incentives to support schemes like 30,000 ha per annum. Although the primary these. motive is to satisfy demand for industrial Another strategy in use permits the Forestry timber, it could also help restore forest cover Commission to allocate proportions of the over the degraded parts of the forest reserves degraded reserves to private entities to reforest. and contribute significantly to the expansion In return, they would get 90 percent of the and enhancement of Ghana’s carbon sinks. revenue from harvesting and the remaining 10 The NFPDP uses a number of strategies percent would be shared between the State (2 including the Modified Taungya System (MTS) percent), the landowner (6 percent) and the to achieve its goals. Under the MTS, farmers local community (2 percent) (Ghana Forestry are allocated shares of land in degraded parts Commission, 2008). of forest reserves and are given seedlings to In the off-reserves, private entities and reforest the area. They are also permitted farmers that opt to reforest their land or to interplant the tree crops with food crops develop plantations are registered with the and farm during the first three years to earn Plantations Department (PD) of Forest Services an income. Once harvested, the State and Division (FSD) and provided with assistance. the farmers get 40 percent of the revenue Those participating in these schemes are also each, while the remaining 20 percent is registered with the Forestry Commission. So shared between the landowner and the local far 3,317 individuals and groups have been community. This formula has been approved registered in the off-reserves while 304 private by the government but has yet to be transposed plantation developers have been registered into law. Under the MTS, the indigenous and in the reserves (Ghana Forestry Commission, exotic species that are planted have a rotation 2008). While it is too early to determine whether cycle of 20 to 30-plus years. This means aside the NFPDP is going to be a success, funds for from the first 3 years in which they are allowed the programme are not regarded as sustainable, to interplant, the farmers have to wait for and, as such, efforts are ongoing to mainstream several decades before they can receive revenue REDD+ into the programme to access carbon from the harvesting of the timber. Therefore, it financing. Local government bodies such as is not surprising that the success of the MTS the District Assemblies that are able to access has been low. Investigations have revealed that funds from the Constitutionally established farmers are destroying tree saplings in order 6 Carbon Rights in Ghana District Assemblies Common Fund8 have also But the SRA has failed to do so, primarily been given an annual target of 300 ha to afforest because benefits are not sufficiently provided and reforest to help implement the programme and the body that is supposed to ensure (Bamfo, 2010). compliance is not fulfilling its duties. If Ghana’s Though the NFPDP is focused on ensuring efforts to reduce its emissions from degradation a well-endowed forest resource base for in naturally-occurring forests are to be harvesting, the way it incentivizes local farmers successful, this must be corrected. The interests and private entities to participate could also of stakeholders in the carbon revenue must be offer a template for dealing with the issue of recognized and legally enforced. Benefits that rights to carbon. This is because it strikes a accrue to them must be sufficiently enticing, good balance between respecting the customary regardless of whom the rights to carbon or the rights of land owners and the statutory rights of credits will be vested in. the State, and furthermore provides incentives The real promise of REDD+ for Ghana should to those without whose buy-in REDD+ cannot be in the “+� part of REDD. With much of succeed. Ghana’s forest now deforested and degraded, the attention should rightly be focused on the afforestation and reforestation of forestlands Conclusion and degraded forests. The national inventory of greenhouse gas (GHG) emissions in 2000 For Ghana’s national REDD+ scheme to be revealed that 85 percent of total CO2 emissions viable, the rights to carbon or the emission from anthropogenic sources came from changes credits generated must be clearly delineated, in forests and woody biomass stocks. Studies the benefits fairly and equitably allocated have also concluded that the greatest potential among all key stakeholders and the benefit- for reducing the nation’s GHG emissions and delivery mechanism efficiently run. The current expanding its carbon sinks lies in the forestry Ghanaian legal framework, which is guided and land-use change sectors (Republic of by the Constitution and customary law, partly Ghana, 2000). The current legal framework for does this. While both Ghanaian customary law tree tenure for planted trees should be seen as and the Constitution are clear on tree tenure, offering a good template for formulating rules the rights or interests of the key stakeholders and regulations on rights to carbon which can in naturally-occurring trees in Stool lands are incentivize afforestation and reforestation of not recognized. The law now acknowledges the forestlands and degraded parts of the forests. influence these stakeholders have in reducing incidents of degradation and thus attempts to incentivize them through the SRA, for example. 8 Article 252 of the 1992 Constitution Carbon Rights in Ghana 7 References Tsikata, F., Brew-Hammond, A., and Osafo, Y.B., 2008. Increasing Access to Clean Energy in Africa: Challenges Abebrese, M.O., 2002. Country Paper: Ghana. In and Initiatives in D. Zillman, C. Redgwell, Y. Omorogbe, Tropical Secondary Forest Management in Africa: and L.K. Barrera-Hernández . (Ed).Beyond the Carbon Reality and Perspectives Ghana Country Paper. FAO. Economy, Energy Law in Transition, 163-182. Oxford, Retrieved 14th September 2004, from www.fao.org/ UK. Oxford University Press. DOCREP/006/J0628E/J0628E53.htm. Asare, R., 2010. Katoomba Incubator, Accra Ghana. Email Correspondence. Legislation Ayine, D., 2008. Social Responsibility Agreements in Republic of Ghana. 1962. 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