The social regulation of rights to allocate and use land is of critical importance in the development of the predominantly agrarian economies of West Africa. Increasing conflict over land takes place within a context of legal pluralism, where customary systems are still dominant, but have different degrees of legalisation. Policy debate over insecurity of land rights in West Africa tends to focus on the ‘problems’ posed by the continued dominance of customary forms of land tenure which are rooted in social group membership and obligations rather then written documentation, and on the linked issue of legal pluralism, where a multiplicity of legal codes, (customary, religious and state) co-exist or compete within the same polity. The debate revolves around two themes:
- First, should customary and other non-state land regimes be supported because of their inherent flexibility, social embeddedness and accessibility, or do they in fact facilitate the ‘legal rightlessness’ of the poor as against locally inequitable power structures, and the state itself?
- Second, does the plurality of legal orders offer useful choices for the ordinary citizen (‘forum shopping’), or does it produce a general ambiguity, lack of enforceability and lack of protection for land rights particularly for those who lack power in the urban areas? How much choice do poor citizens really have about which ‘forum’ or legal code they invoke to settle a dispute or protect their rights?
Aims and objectives
The overall aim of the research project was to analyse the effectiveness and equitability of judicial, legal and administrative institutions for providing accessible dispute resolution, and for protecting the security of the urban and rural poor to hold and use land. It compares the ‘legalisation’ of the whole range of customary and non-state regulatory institutions into state law in Ghana with the greater pluralism of Cote d’Ivoire, and asks whether the revival of customary or local Alternative Dispute Resolution Systems (ADRS) systems can offer protection against uncertainty, and arbitrary dispossession.
The research addresses a key policy question in the area of African land law and access to justice: is protection of livelihoods and the rights of the poor and vulnerable best protected through sustaining legal pluralism (a mix of customary institutions, local Alternative Dispute Resolution Systems – ADRS – and state institutions) or does an integrated state system of justice give better protection? In Ghana and Cote d’Ivoire there is a situation of legal pluralism; customary land holding systems are dominant but undergoing rapid change and have experienced severe strain in Cote d’Ivoire under the impact of mass migration into the cocoa growing and urban areas. Increasing conflict over land and insecurity of land-holding thus make the question of how to provide better institutionalised regulation of such conflict very timely.
The overall aim of the research was to investigate how law, judicial and regulatory institutions, both formal and informal, can contribute more effectively to resolving land disputes and enhancing security over the possession and use of land. The specific research objectives focussed on understanding the factors which underpin the effectiveness, legitimacy and inclusiveness of dispute settlement institutions (DSIs) which adjudicate or otherwise resolve land disputes. This involved the study of both the state and non-state, customary and statutory institutions involved in land allocation and conflict management at the local level in the two countries.
In both Ghana and Cote d’Ivoire, case studies were made of areas which corresponded to the following types:
Type I: A situation of marketised, crop agriculture with competition between successive generations of migrants and host communities.
Type II: A situation where there is a low degree of marketisation, no perceived land shortage and land is allocated at low cost according to local customs.
Type III: Urban or peri-urban situations characterised by marketisation, severe competition and conflict among statutory, traditional and ‘informal’ (usually illegal) systems of land regulation.
Within each of these types of area, a group of villages or neighbourhoods was selected for detailed study including, in Ghana, a sample survey of popular opinion.
The research concludes that state courts serve a real need for authoritative remedies and should be enhanced and supported. The introduction of ADRS also needs state support. Customary or traditional justice systems have played a key role in protecting land rights where they have been legalised by the state, as in Ghana. But where there are powerful chieftaincies, as in southern Ghana, they are not necessarily suited to ADR solutions because of their formality and embeddedness in local power structures. They can still play a positive role where there is community support. Situations of polarised inter-communal conflict as in Cote d’Ivoire also undermine their capacity to be effective.
In addition to the publications listed below, several papers were presented at the International Workshop on Adjudication of Land Disputes, Legal Pluralism and the Protection of Land Rights in Ghana and Cote d’Ivoire, Institute of Commonwealth Studies, University of London, 17-18 February 2005.