Abstract
The quest for timber and timber resources and its corollary effects on forest degradation has in the last decade contributed to a series of concerted local and international interventions aimed at addressing the situation. These interventions have taken the character of domestic policies, international agreements and pacts and to some extent, domestic legislative reforms. The plethora of interventions have created a horde of laws and agreements with varying scopes and applications, multiple institutions with interlocked and overlapping responsibilities and uncoordinated and often undocumented practice in the commercial trade of timber. The focus of this article is to prod through the domestic and international legal and institutional architecture on the regulation of the trade of timber and timber resources. The article hopes to unearth the challenges in complying with these obligations and propose recommendations on the way forward.
Keywords
Introduction
Environmental advocates generally agree that improved governance is required to ensure a meaningful and broad shift towards a more sustainable management of natural resources. Therefore, improved governance should be the fulcrum for any measure targeted at improving the regulatory framework for the commercial trade in timber. In the last two decades, Ghana has witnessed intensive domestic and international efforts at improving forest management. The advent of new domestic and international forest management policies, laws and initiatives coupled with heightened civil society involvement in the development of policies and advocacy on behalf of communities is indicative of a revival aimed at correcting past mistakes in the area of forest management and trade.
This article seeks to examine the policy, legislative and institutional architecture for the commercial trade of timber in Ghana and the effects of international policies and interventions on reforms in the sector. The article combines a historical and content analysis approach in analysing and auditing the policies, legislation and international initiatives underpinning the commercial trade of timber. This approach provides the framework for the author to prod through the domestic, international legal and institutional architecture on the regulation of timber trade in Ghana; to unearth how the forest governance arrangements in consumer and producer countries is changing and to take stock of how these changes are being institutionalised within existing structures and processes. The article will also attempt to measure the degree of these governance changes and how they align with and/or influence synergistic changes in corresponding laws and governance arrangements in trading partner countries. Finally, the article will outline some of the challenges in complying with these obligations and propose recommendations on the way forward.
This article is structured under four sections, including this introduction, conclusion and recommendation. The second section looks at the timber industry in Ghana and recent developments in the sector. In the third section, the article discusses the legal architecture for the regulation of forests resources in Ghana.
The timber industry in Ghana: Recent developments
It has been a decade since Ghana and the European Union (EU) signed the voluntary partnership agreement (VPA) under the EU’s Forest Law Enforcement Governance and Trade (FLEGT) programme. 1 The primary objective of the VPA is the sanitisation of the timber trade in producer countries by subjecting the trade processes to standards that ensure legality and sustainable harvesting and trade in timber. Ghana is yet to commence the export of timber to the EU under FLEGT arrangement, but this has not affected the trade in timber to other markets.
The revenues generated from the trade in timber contribute significantly to the economies of countries involved. The latest data on Ghana’s total wood products exports in 2018 showed a marginal decline in both volume and value compared to 2017. 2 The details of the report indicate that export volumes for 2018 dropped by 6,299 cubic meters or about 2 per cent to 332,927 cubic meters compared to 339,226 cubic meters in 2017. The statistics also show that the value of exports in 2018 was down about 1 per cent year on year (Euro 187.87 million in 2018 against Euro 189.89 million in 2017). 3 It is evident that even with the marginal drop in export figures, the timber trade raked in significant revenue. These forest resources also contribute to the quality of life of the citizens, culturally and environmentally. The formal forestry sector employs about 120,000 Ghanaians with employment pre-dominantly in the log processing industry. The timber industry is the fourth largest foreign exchange earner after minerals, cocoa and oil exports. 4 The informal forestry sector, mainly chain saw milling, is almost equal in size to the formal sector in terms of employment and production and also provides the bulk of the supply (85 per cent) for the domestic market, with estimated volume of around 0.5 million cubic meters and market value of around GHC 280 million. The informal forestry sector also provides employment for around 130,000 people and livelihood for 650,000 people and is a source of considerable revenue for the mostly urban financiers of their operations. 5 The sector remains one of the fastest growing manufacturing units in the country in terms of revenue generation and employment.
Ghana’s antecedents of forest management policies, laws and trade are steeped in the footprints of colonisation dating as far back as the mid-1800 and 1900. The umbilical relationship that existed during the colonial period between Ghana and the United Kingdom meant that the policies, laws and practices of the Crown were imported and applied in the colony in all facets of governance.
The incidence of this relationship was the establishment of a dependent ‘national’ economy based upon export of minerals, cash crops and timber to Europe, in exchange for industrially manufactured commodities. Through native authorities, the colonial state guaranteed merchants cheap access to mineral and timber concessions. It also maintained low taxation in the extractive industries while the workings of the ‘international market’ ensured that peasant-produced commodities were available at less than their value. 6 Thus, the demand and supply forces were the key determinants of timber trade relations without recourse to legal or sustainability standards.
These ‘received’ policies, laws and practices which some have termed the ‘forestry mix’ comprised three key elements, namely, the appropriation of lands to establish national networks of forest reserves, the establishment of Forestry Departments to oversee the adoption of scientific forestry principles and the maintenance of multifaceted efforts to regulate and control customary land and resource use practices. 7 The colonial administration employed selective policy instruments for land resource management, rather than developing an overall policy framework. There were no policies relating to reafforestation and re-planting. 8
The development of policies and laws for the management of forest in post-colonial Ghana has not markedly departed from the trajectories laid by the erstwhile colonial administration. However, international multilateral and bilateral conventions and agreements in recent years have created both explicit and implicit obligations and necessitating, to some extent, domestic legislative reforms. This has introduced a novel chapter in the discourse on the state of the legal and institutional architecture for the commercial trade in timber and wood products.
The VPA initiative on trade in illegally logged timber is the most significant international initiative on forestry reform in many years. This initiative by the EU with timber producing countries creates a supply-side incentive for the timber producing countries to build the country’s governance capacity and performance to ensure legal and sustainable management of its timber resources. The EU FLEGT/VPA also has demand-side incentive for consumer economy – EU. These demand-side measures influence the sustainable management of natural resources indirectly by requiring those who trade commodities to evaluate their supply chains in line with specified standards or principles and to only trade products that comply. Demand-side measures can provide an important incentive for producer countries to improve their governance of the sector because compliance with a consumer country’s demand-side measure is required to ensure access for the producer country’s products into the consumer country’s market. These measures are also a response to growing desire of EU consumers to reduce their footprints in deforestation from their trade forest commodities.
These international treaties and voluntary obligations have gravitated towards ‘moralising’ the trade in forest resources. While some may argue that this novel concept of ‘moral trade’ appears to be still locked in the fetters of the colonial ‘forestry mix’, it is beyond doubt that this concept places more emphasis on national ownership and multi-stakeholder participation, sustainability and other environmental concerns. Further, although the construct of this ‘moral trade’ concept privileges legality and sustainability, the primary aim still remains the commercial trade in timber. Irrespective of the historical or political epoch under consideration, the nature and scope of forest policies and legislation has had trade as the main driver for the framing of the legislative and institutional bureaucracy for forest management.
The current high volumes of illegal commercial trade of forest products, especially timber in the domestic and international market, 9 bring into question the effectiveness of the policies, laws and international initiatives put in place to halt the illegal trade. The increased scrutiny of compliance with policies and laws on forest management 10 is one of the ways to ensure that the illegal trade of timber is halted.
The legal architecture for the regulation of forest resources in Ghana
Ghana has seen monumental shifts in forest policies and laws in the last hundred years. The initial focus of forest policies and legislation in Ghana was on protective functions and forest reservation.
The current legal framework for the regulation of the forest sector consists of broad constitutional obligations, which are further fleshed in substantive and procedural provisions in Acts of Parliament. 11 Over the years, these Acts of Parliament have been amended to offer quick-fixes to problems leaving a legislative patchwork of fragmented and sometimes inconsistent provisions. The domestic legal framework is further layered with obligations under international conventions, treaties and agreements. In addition, there is a host of administrative procedures and policies in manuals that complement the legislation. The 1992 Constitution provides a hierarchy for the various sources of law and a mechanism for resolving contradictions in these legislative texts. 12
The earliest forest legislation in Ghana can be traced back to 1843 where two enactments, namely, the British Settlement Act 13 and the Foreign Jurisdiction Act, 14 were passed to formalise British rule in the Gold Coast. These laws created a framework for laws and orders to be formulated for the political and economic administration of the colony. Between 1894 and 1900, the Colonial Government attempted to deal with the then increasing problems relating to the indiscriminate granting of land concessions to expatriates, by vesting all waste lands, forests and minerals in the Crown. However, in 1883, though not a primary forest management law, the Gold Coast Native Jurisdiction Ordinance passed by the British government allowed the traditional authorities to make by-laws dealing with local government functions, such as building and maintenance of roads, forest conservation and protection of water courses among others.
Specifically, on forest management policies and laws in Ghana, the history dates to 1906 when legislation was enacted to control the felling of commercial tree species and the creation of the Forestry Department in 1908. The demarcation and reservation of the forest estate was largely completed by 1939 and a forest policy was adopted in 1948. 15
From this point forward, a consistent policy of selection, demarcation, reservation, protection of water supplies, maintenance of favourable conditions for cultivation of agricultural crops and the promotion of research and public education have been vigorously pursued. However, most of the early forest policies mainly emphasised a sustained supply of timber for the wood industry and promoted over-exploitation.
Constitutional reforms in forest management post-independence (1957–1992)
Before the promulgation of the 1992 Constitution of Ghana, all the post-colonial Constitutions of Ghana contained provisions generally creating a framework for the management of natural resources, including land and mineral resources. 16 The scope and issues covered by these constitutional provisions are, however, varied. For example, all the post-independent Constitutions of Ghana addressed the issues of compulsory acquisition of property and the vesting of public lands. The 1979 Constitution introduced two novel institutions – the office of the administrator of stool lands 17 and the natural resources commissions. 18
The 1992 Constitution introduced a more elaborate constitutional framework for the regulation and management of natural resources. This includes a policy recognition of the managers of public and other lands as fiduciaries with a social obligation to hold these lands in trust for the larger community. The 1992 Constitution retained the framework under previous constitutions as they relate to the management of public lands, 19 stool lands 20 and, in particular, built on the foundations created on the natural resources commissions by establishing the Minerals Commission 21 as an addition to the Fisheries and Forestry Commissions.
The 1992 Constitution, also for the first time, vested every mineral in its natural state, in, under or upon any land in Ghana, rivers, streams, water courses throughout Ghana, the exclusive economic zone and any area covered by the territorial sea or continental shelf in the President as property of Ghana on behalf of, and in trust for, the people of Ghana. 22
Furthermore, the 1992 Constitution introduced provisions on parliamentary oversight in the management of natural resources, including the requirement that all transactions involving the grant of a natural resource right in minerals, water or other natural resource, including timber, should be subject to parliamentary ratification. 23
The ongoing constitution review and implementation process 24 made some inroads in the area of managing the utilisation of natural resources. At the national conference of the Constitution Review Commission held to validate proposals for amending the 1992 Constitution, various experts and other institutional stakeholders impressed on the Commission to vest natural trees in the communities where the trees are found. Also that farmers who nurture these trees should enjoy the benefits of the proceeds of the sale of these trees. 25
However, the Commission was not entirely compelled by this recommendation. Rather, the Commission recommended for the Constitution to provide that lands (without specifying which lands) and natural resources (without making the exception for natural trees) should be owned by the people and vested in the President in trust for and on behalf of the people of Ghana. 26 While this proposal has been accepted by the Government in its White Paper published in reaction to the report of the Commission, the proposal is yet to be passed through the relevant constitutional amendment process. When this amendment to the 1992 Constitution is effected, it will be the first time in the constitutional history of Ghana that all classes of natural resources, including naturally occurring trees, have been vested in the President in a constitution.
Forest management policy reforms: Intended to be comprehensive, used as ‘pick and mix’
Forest policy design and implementation in Ghana has undergone considerable changes, in particular between 1947 and 2012. From the period of colonial rule in 1843 to post-independence, Ghana has had three formal forest management policies. 27 The reviews of these policies over the period have resulted in a fundamental shift in the underlying ethos and approach to the management of forest resources from a ‘State-centric’ to a ‘Collaborative’ approach. The increased participation of other actors – communities and civil society and the creation of multi-stakeholder platforms – has become the preferred approach to the management of forest resources. The policy reviews have been triggered by the growing need to stem illegal commercial trade in forest resources and to conform to emerging international developments and obligations.
The first forest management policy in Ghana was drafted in 1946 and approved in 1948 by the colonial administration. The 1948 Forest Policy of Ghana came into force to monitor and regulate the seemingly lawless activities in the forestry sector in Ghana. The drafters of the 1948 Forest Policy were motivated to put in place such governance framework owing to the growing timber industry and in recognition of the economic role of the timber processing and wood utilisation sector to the country. The policy emphasised a management approach that privileged sustained yield. 28 The 1948 Forest Policy prescription of non-replacement of trees felled outside forest reserves and the increase in timber harvesting and the timber industry contributed to a large-scale deforestation leading to some scholars branding the 1948 Forest Policy the ‘timberisation’ policy. 29 In relation to governance structure for the management or administration of the forest resources, the 1948 Forest Policy gave exclusive and greater authority to the central government thereby ensuring that local communities and many directly affected persons were side-lined in the administration of the forest resources in the then colony. 30 After more than 40 years of implementing the 1948 Forest Policy, reforms were initiated with the aim of reversing the indiscriminate felling of timber resources. 31 These efforts culminated in the development of the 1994 Forest Policy of Ghana.
The implementation of the 1994 Forest Policy brought a wave of significant changes in the structure and administration of the forestry sector in Ghana. The sector institutions were reformed and the policy promised a number of changes, such as the equitable sharing of management responsibilities, increased benefit flows to local stakeholders, especially the rural poor, and increased participation, transparency and accountability in the sector activities.
The 1994 Forest Policy and the Forestry Development Masterplan of 1996–2000 envisaged several legislative changes in the forestry sector and made several policy proposals that were to be translated into law. However, only a few of these proposals eventually crystallised into law, in the form of the 1998 Timber Resources Management Act (TRMA). 32
To adequately assess the variance between policy proposals and the legislative reform, it would be useful to draw a distinction between policy objectives that explicitly contemplated changes in the corpus of law and those that implicitly required legislative revision. 33
As noted, the 1994 Forest Policy explicitly envisioned a number of legislative reforms. However, only two of the substantive and structural policy reforms introduced by the 1994 Forest Policy have been translated into binding provisions in amendments to existing and new laws. 34 These are the introduction of timber utilisation contracts 35 which is a key feature of the TRMA 36 and the reform of the forest and wildlife agencies which have been reorganised with the establishment of the Forestry Commission. 37
In addition, three other policy proposals for legislative reforms contained in the 1994 Forest Policy have been given partial legal effect. In this connection, partial reference to Environmental Impact Assessments (EIA) 38 can be found in Section 3 (3) (b) of the TRMA 1998 (Act 547), where the scope of the assessment method referred to in Act 547 is considerably narrower than a traditional EIA legislation. 39 Also, the proposals to achieve sustainable development and prevent farming, logging sand winning 40 or galamsey 41 activities 42 have been partially translated into legislation with the introduction of chainsaw regulation under Timber Resources (Management and Legality Licensing) Regulation of 2017. 43 However, the specificities of the proposal which envisage prevention of such activities particularly along the banks of streams, rivers and lakes have not found expressions in the Regulations. Finally, the regulation of highly valued and endangered species 44 partially found its way into law. 45
A scrutiny of the contents of the 1994 Forest Policy shows that the drafters of the Policy intended that most of the policy prescriptions contained in the Policy would have been translated into binding laws. For instance, some implicit proposals to law reform aimed at addressing sustainable management of the forest resources 46 and competitive bidding procedures for permits 47 have found legislative expression in the TRMA 48 and its implementing Regulation. 49 The policy objective of popular and community participation in the management and administration of forest resources 50 is enshrined, albeit in a very limited manner in the Regulation. 51 In practice, however, representation of stakeholders is accommodated during the process of calculating stumpage fees. Also, the policy intendment of sharing of benefits 52 is only touched upon partially under the Act 53 and its Regulations 54 where provisions of stumpage fee and contract area rent are provided.
Also, the 1994 policy prescription introducing forest fees 55 has been given expression in law with the introduction of requirement of the payment of timber rights fees. 56 However, the TRMA and the implementing Regulations are silent on disbursement of the revenue accruing from the timber rights fees. The Act which was subsequently amended to provide for the legal backing for the policy vision of transforming the timber industry 57 found expressions in the amendment of the Act which introduced incentives and benefits for investors, especially foreign investors. 58
Again, the 1994 Forest Policy intendment of improving the access of local people to natural resources, the role of women and a revamping of land tenure have not found legislative expression.
Unlike its predecessor policy that lasted for over 40 years, the 1994 Policy became a subject for revision in 2011 due to the implementation flaws that exposed the gaps between the policy intendment and reality. The depletion of the forest resources in the off reserves achieved minimal success since illegal chainsaw and mining operations still abounded in Ghana. The 1994 forest and wildlife policy still faced the challenge of resource exploitation that favoured the political elite and influential timber operators. 59
The contents of the current Forest and Wildlife Policy adopted in 2012 reveal a conscious shift in the policy direction from the trade-led reviews in the earlier forest policies to a more diverse forest management approach that prioritises multi-stakeholder interest in the management and administration of the forest resources. These interests in the new collaborative approach to the management of forest resources 60 are influenced by Ghana’s international obligations, sector stakeholder expectations as well as the national development agenda for reforms. This national reform agenda focuses on the non-consumptive value of forests 61 while creating an equilibrium between the production and marketing of timber to satisfy demand. 62 The interest of trade and industry seems to be primarily enshrined in the use of offset mechanisms in response to climate change mitigation and adaptation measures as well as payment for ecosystem services. In keeping with this policy direction, the 2012 Forest and Wildlife Policy endeavours to explore new measures to halt and reverse the pace of deforestation and forest degradation in Ghana by taking advantage of emerging opportunities for sustainable forest financing especially through Carbon Credit schemes which the country needs to take advantage of to develop the forestry sector. All these drivers have paved the way for a paradigm shift towards a non-consumptive value of forests and collaborative management with opportunities to maximise the rate of social and economic development of the country and secure optimum welfare and adequate means of livelihood from the forestry sector.
Whether the collaborative approach to the management of forest resources and the reinforced local ownership rights included in the 2012 Policy would lead to better management of the forest resources is yet to be measured. However, the increased multi-stakeholder involvement in the management and administration of forest resources is testimony of the adherence to the policy objectives. 63
Forest law reforms 1909–2017: Serving the interests of state and private sector
The approach to legislative reform in the forest sector in Ghana has been mainly been done by amendments and consolidation of existing laws and to a minimal extent, enactment of new laws based on changes in forest policies. Historically, Ghana’s formal attempt at the development of specific legislation for the management and administration of forest resources dates to the 1900s 64 when legislation was enacted to regulate the felling of commercial tropical tree species. 65 A content analysis of the Timber Concessions Ordinance reveals that even though the legislation defined the use of land and timber concessions, 66 it was primarily passed to regulate the collection of revenue by the colonial government 67 and imposed penalties 68 on companies who failed to comply with the law. Attempts were made to amend the Concessions Ordinance in 1907, but it failed largely due to a lack of support for the amendments by industry and the local communities. 69 Subsequently, in 1908, the Forestry Department was established with the demarcation and reservation of the forest estate taking place in between 1928 and 1939.
Eighteen years after the establishment of the Forestry Department in 1909, the Forest Act of 1927 was enacted. The Forest Act of 1927 was enacted to provide the conditions and procedures for the establishment of forest reserves. Attempts were made to harmonise the legislation on forest management and administration with passage of the Forest Act in 1954. The Forest Act consolidated the preceding Forest Acts and Ordinances from 1927 to 1949 with some amendments. For instance, sections in the consolidated Forest Act relating to the Forest Improvement Fund was repealed by the Forest Improvement Fund Act, which in turn has been repealed by the Forest Plantation Development Fund Act, 2000 (Act 583). Also, provisions on forest offences in the Forest Act were repealed by the Forest Protection Act in 1974 70 and its subsequent amendment Acts. 71 The remaining provisions of the Forest Act that are still in force have to be read with the necessary modifications to give effect to the TRMA, 1998 (Act 547) to ensure consistency and where there are inconsistencies, the provisions in the later legislation, TRMA, prevail over the Forest Act.
Presently, part of the legislative architecture of forest laws in force in Ghana is the Concessions Act of 1939 and 1962. All the provisions in the Concessions Act of 1939 law have been repealed with the exception of two provisions. 72 Similarly, the Concessions Act of 1962 73 has as the remaining provision, the section that vests all forest reserves and all trees outside forest reserves in the President for the stools concerned. 74 Almost all other provisions have been repealed by the more recent Act 547. In addition, these remaining sections only apply with the modifications necessary to give effect to that Act. Other legislation, although not considered as mainstream forest management and administration laws, adds to the legal architecture. 75
The most significant legislative inroad in the forest sector was the enactment of the TRMA, 1998 (Act 547). Some scholars see the enactment of the TRMA as a botched attempt at the enactment of a new Forest or Timber Rights Act, which would have clarified both substantive and procedural questions of community rights. 76 The TRMA provides substantive provisions for the granting of timber rights except in the case of land with private forest plantations or lands with timber grown or owned by an individual or group. 77 It prohibits harvesting of timber unless the person holds timber rights in the form of a Timber Utilization Contract (TUC) and limits these contracts by size and duration. 78 Further, the TRMA establishes the Timber Rights Evaluation Committee and tasks it with the responsibility of evaluating timber rights applications and making recommendations to the minister responsible for forestry for its grant subject to parliamentary ratification. 79 The TRMA also delineates the terms of the timber rights contract 80 and provides for the management of timber operations 81 and payment of royalties and various other conditions. 82 There are also provisions on conditions for suspension and termination of timber rights. 83 In line with the agenda of boosting trade and increasing investment in timber, the TRMA has provided incentives for investors in the timber sector. 84 These provisions create a somewhat robust foundation for the management and administration of forest resources in Ghana.
The TRMA was amended in 2002 to exclude land with private forest plantation and prohibit the harvest of trees.
85
The amendment also sets the maximum duration and area of timber rights as well as for incentives and benefits applicable to investors in forestry and wildlife.
86
The legislative terrain was further complicated in 2002 with the amendment of the TRMA to insert a clause in the definition section.
87
This new insertion which can best be described as a ‘permitted legal loophole’
88
states: The expression “timber utilization contract” shall apply with the modifications that are necessary, to a certificate of purchase, a permit or
The consolidated Regulations 95 provide the needed substantive and procedural law needed for the effective implementation of the provision in the TRMA with the creation of the categories of small- 96 and large-scale 97 timber rights. For instance, it sets out the procedures for the inventory and reservation of specified lands for timber utilisation. 98 The procedure on bidding is made more transparent and limited to the grant of only large-scale timber rights. 99 On benefits sharing rights, the Regulation has also clarified the classes of permits that require that the negotiation and implementation of social responsibility agreement with local communities fringing the forest resource. 100 Hitherto, the clarity was absent in the legal framework. Also, to reduce the incidence of illegal logging, the registration regime and use of chainsaw have been tightened under the consolidated regulation. 101
In short, the TRMA and its implementing Regulations lay the foundations for the realisation of the policy objective of collaborative resource management in Ghana. Being an offshoot of the 1994 Forest Policy, the TRMA is still caught in the fetters of resource exploitation for trade as evidenced in the number of provisions providing incentives and enabling environment for private-sector involvement in the trade. 102
In the last two decades, two additional Acts have been passed – The Forestry Commission Act 103 which re-establishes the main institutional architecture for the management and administration of forest resources and the Forest Plantation Development Fund Act 104 (including its subsequent amendment) 105 which creates a fund to administer and support plantation development. It is worth noting that none of these Acts included concrete provisions for some of the long-awaited policy intendments on local ownership and control and gender. However, the policy directions on collaborative management and benefit sharing have been included to an extent.
In sum, the legal framework of the forest sector is yet to witness the promised comprehensive reform and consolidation envisaged under the 2012 Forest and Wildlife Policy. Also, the scattered and sometimes uncoordinated amendments to these forest laws make the application of the rules and research in the sector challenging. The uncoordinated amendments have left a legislative framework with some inconsistencies as indicated above.
Further, apart from the instances where the right to participate in decision-making processes has been reinforced, all new and amending laws have prioritised the interest of the State and industry. The focus remains largely on resource exploitation and the reform of forest management institutions.
A new approach to chasing legal timber: Treaties and foreign law
As evident from the prior discussions, the issue of commercial timber trade has for a long time been an international business. In the last two decades or so, international law and foreign law are being resorted to as levers for changing the dynamics of this international trade using the forces of demand and supply-side measures. Existing demand-side measures under these international and ‘foreign’ laws generally fall into one of the two categories. The first being measures that rely on official documentation from resource producer countries as conclusive evidence of the product’s compliance with the principles set out in both domestic and the international law. Examples of these categories of demand-side measures include Convention on International Trade in Endangered Species of Wild Fauna and Flora, 106 the EU Illegal Unreported Unregulated (IUU) Regulations and Certification Scheme 107 and the EU FLEGT Regulation. 108 Under these schemes, unless the producing country’s government documentation attesting to compliance is found to be fraudulent, it will be accepted by EU officials as proof of compliance with law. The second category of these demand-side measures comprises mandatory due diligence schemes, in which operators trading the commodity are required to assess the risks that the traded products fail to comply with the principles specified in the regulation. An example includes the EU Timber Regulation. 109 The Lacey Act 110 of the United States also fits into this dynamic. On the other hand, there are supply-side measures and international arrangements, such as the VPA processes to improve forest governance in the context of timber trade agreements between the EU and timber-producing countries. In the case of forest-risk commodities, supply-side measures aim at fostering governance improvements and ensuring that land-use decisions respect the tenure and use rights of local people and communities. These international initiatives – foreign law and international treaty obligations – whether direct or indirect rely heavily on existing domestic legal framework to determine the acceptable standards of legality and compliance. This means countries with coherent and consistent legal frameworks will be perceived as less risky for importers of timber. The VPAs, for instance, take this logic a step further by requiring the setting up of a credible licensing framework assuring the legality of all timber exported to the EU. The credibility of this framework relies on a negotiated definition of legality and legality assurances system, multi-stakeholder involvement and a commitment to reform legal framework.
These benefits of the VPA motivated Ghana into signing onto it. 111 The VPA offers an opportunity for an organic overhaul of the standards of the management and administration of timber trade. For the EU, this represents opportunity to reduce its involvement in the deforestation of forests through their demand for these commodities. It is early days yet to judge whether the VPA will be seized as an opportunity to reform the forest sector and address many of the issues which contribute to the illegal trade of timber and ensure robust reform of the domestic legal framework for forest management and administration. Already, the passage of domestic Regulations 112 to support the implementation of the VPA implementation process is a welcome step in the efforts at law reform. However, the extensive revision and consolidation of the forest legislation promised under the terms of the VPA is yet to start almost a decade after signing the VPA. It is worth noting that the Regulations 113 have laid down an elaborate procedure and institutional architecture for the trade of timber. For instance, it establishes the Timber Validation Committee (TVC) 114 and charges it with the responsibility of monitoring and ensuring the credibility, transparency and independence of the Timber Validation Division (TVD) in the discharge of duties. This reduces political interference in the processes of issuing licenses and gives independence to the TVD. The Regulations also ensure that there are provisions on access to justice and dispute resolution. 115
Also, the VPA through the negotiated legality definition 116 has offered Ghana the opportunity to exclude certain classes of permits considered questionable under the domestic laws of Ghana from the definition. 117 This clarity provided by the VPA was given legislative expression in the Regulations. 118
Thus, for the purposes of trade, the EU recognises TUCs and Salvage Permits as legal sources of timber. In addition, Certificates of Purchase are recognised as another legal source of ownership of (for abandoned or seized) timber. The VPA sets up the standards that would be used to measure the compliance by outlining procedures to follow and documentation that ought to be provided as proof of compliance. Table 1 summarises the procedures that need to be followed and documents that prove the legality of the source of naturally occurring timber.
Matrix of felling permits for harvesting timber under the VPA in GHANA
Note: TUC: Timber Utilization Contract; CoP: Certificates of Purchase; TREC: Timber Rights Evaluation Committee; FC: Forestry Commission; MLNR: Ministry of Lands and Natural Resources; FSD: Forestry Services Division.
Unlike the VPA, the EUTR 119 and Lacey Act 120 standard of legality is not based entirely on existing domestic law but on other sustainability standards. The application of these international initiatives on supply-side producer countries is indirect since the due diligence requirements are placed directly on operators in the demand-side countries to ensure that their supply chains are deforestation-free. The effectiveness of the enforcement of such indirect mechanisms is heavily influenced by the state of the existing domestic legal framework in the supply-side countries. Thus, the effectiveness of any international initiative, whether direct or indirect, requires a clear and robust underlying legal framework to be successful.
Within the context of Ghana, there is the urgent need for a comprehensive revision and consolidation of its forest legislation on the management and administration of forest resources. A law reform exercise that leads to the passage of a single comprehensive, coherent law for management and administration of forests will be an opportunity to address most of the problems mentioned in the preceding paragraphs. This law reforms agenda which will also provide a clear and complete legal framework which marries the interest of the State, industry and other stakeholders (local communities and NGO’s) should be the preferred approach. Also, such a review should take into consideration of emerging issues on climate change and the prioritisation of forest ecosystem services as opposed to the colonial relic of exploitation for timber trade. This much anticipated law reform exercise should it happen will offer the needed catalyst, a successful implementation of the VPA.
Conclusion and recommendations
The trend in the administration and commercial trade in timber and woods products is developing from a period of resources exploitation for trade for the benefit of the State and industry to a more sustainable and collaborative approach to the management of forest resources. This shift in the approach to the administration and trade of timber has been influenced by the changes in domestic forest policies and international developments and initiatives aimed at stemming deforestation. With the change in demand and consumer patterns of demand-side markets of forest commodities, there is an evolution from trade based on exploitation of the forest resources to ‘moral trade’ 121 where the interests of not only industry and governments are taken into account but also those of communities. In the context of Ghana, this means finding a harmonious balance between the desire to utilise resources sustainably and community and traditional interests, 122 including benefits sharing arrangements. Policy objectives in the 2012 Forest and Wildlife Policy, existing domestic laws and the international initiative on improving forest governance provide some foundation towards the actualisation of this ‘moral trade’ where local ownership and participation, gender, collaborative management, conservation, renewable biofuel and alternative livelihood arrangements for forest-dependent communities are translated in law.
The issue is how to use the intendments in the 2012 Forest and Wildlife Policy and the VPA as leverage to actualise this ‘moral trade’ and not reduce this to mere rhetoric. The following are offered as recommendations and way forward:
Removal of legislative bottlenecks
The current state of legislative framework for the management of forests in Ghana needs urgent reforms to exorcise persisting existing bottlenecks that create cross-purpose objectives in how various stakeholders interact when they deal with forests in Ghana. This reform when done will create the foundation for a regularised discourse on addressing the issues of legality of timber. There is presently no single answer to the question of ‘what is legal timber’ in Ghana. This situation has arisen because what amounts to legal timber by way of the source and permits vary from what is contained in domestic legislation and in the VPA. This lack of clarity portends a great deal of challenge for compliance. Since other indirect international interventions rely on the definitions of legality in domestic legislation, where there is a lack of clarity in the domestic legal framework on the issue of legality, compliance with any intervention without addressing the root cause will be an exercise in futility.
Also, there are some reforms that were anticipated by TRMA 1998 as measures towards bringing sanity into the permit regime. Cardinal of these is the provisions requiring the conversion of all existing concessions or leases into TUCs within 6 months upon the coming into force of the TRMA 1998. Over two decades after the coming into force of the TRMA, these conversions have not been completed. Government through the Ministry of Lands and Natural Resources must take bold steps to address this issue if Ghana intends to issue FLEGT licenses in the near future.
Further, the issues of Special or Ministerial permits under TRMA 1998 as amended must be addressed to bring clarity and sanity into the permit regime in Ghana. The continuous existence of the provisions that mandate the minister to grant permits without parliamentary ratification and side-stepping all the laid down procedures in the TRMA is not only incongruent but abhorrent to good governance. The ministry should initiate steps to amend the TRMA to remove this inconsistent provision on the power to grant permits.
Institutional retooling and coordination
With the establishment of new institutions by virtue of the VPA, there is the need for deliberate policy intervention for these institutions to collaborate at the policy, technical and operational levels in the discharge of their responsibilities. Synergies must be created in the work of the Joint Monitoring Review Mechanism, the TVD, the TVC and the Independent Monitor. This will ensure that duplicities in roles are removed so as to offer clarity to industry and other stakeholders. Governmental institutions must also collaborate with civil society organisations to engender transparency in the discharge of their duties. Further, there is the need for a new institutional attitude in the discharge of the responsibilities to ensure that the implementation is successful. Furthermore, this institutional retooling and coordination must take into account issue of gender and alternative livelihood arrangements for forest-dependent communities.
Political will
Government of Ghana needs to show a clear commitment to discharging its domestic and international obligations in the management and administration of forest resources. Government can do this by leading the way in the reform of legislative architecture and in undertaking the much-promised consolidation of Forest Laws in Ghana. This will be a bold step at realigning our forest legislation to accord our domestic and international obligations. Anything short of this will bring to nought any interventions based on the existing legislative framework. Ghana’s experience in implementing VPA also offers suggestions to improve the current VPA Agreement model. Since the introduction of the VPAs, only Indonesia has issued FLEGT licenses. Ghana, the first country to conclude a VPA with the EU, is still in the implementation stage and taking steps towards the issuance of the FLEGT licenses. This suggests that the current VPA model is failing to achieve its ultimate result, which is the promotion of legal trade in timber. The major challenge towards the issuance of the FLEGT licenses in countries that have signed the VPA is the uncertainty in the legal architecture pre-VPA. Although the VPA when signed and ratified require countries to undertake legal reform, this most often than not becomes a difficult hurdle to surmount. The flowery language of the VPA also makes its adaptation into substantive law difficult. If the EU fails to make clear and bold demands for legal reforms in countries that have voluntarily signed the agreement, the issuance of FLEGT licenses will be a mirage. It is suggested that in future negotiations of VPAs, the EU adopts a two-stage process. It is proposed that first stage – the VPA-Lite stage will offer countries the opportunity and support to undertake extensive legal reforms of their existing legal and institutional frameworks for the management of forest resources. It is only after the successful completion and testing of the reforms that the second stage – VPA-Complete is triggered to signify the readiness of the country to begin the issuance of FLEGT licenses. This proposed two-stage approach to the issuance of FLEGT licenses will ensure that maximum time and attention is given to the foundational issues of institutional and legislative reforms before operationalisation.
Incorporating the above recommendations would result in an increase in the supply of legal timber for both the domestic and international markets with its attendant benefits of increased revenues to the State, industry and better livelihoods for local communities and persons who depend on the forest for its ecosystem services.
Footnotes
Author’s note
The opinions expressed in this article are those of the author, and they do not reflect in anyway those of the institutions to which he is affiliated.
Conflict of interest
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
