‘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 de-gazetted 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 de-gazetting 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). 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 de-gazetting forest reserves.
The Forest Act of 1927 vests the power to de-gazette 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 de-gazetting 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 de-gazetting 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 de-gazette portions of the Achimota forest. In the main, Government appears to have followed the prescriptions of the Forest Act in de-gazetting the Achimota forest. So why the “Koo Kaa”?
First, the locus of power to de-gazette 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 de-gazetting 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:
- (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.
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.
BY Clement Kojo Akapame