This Note addresses the intersection of customary and statutory land law in the land tenure policy of Ghana. It argues that improving the current land tenure policy demands integration of customary land law and customary authorities into the statutory system. After describing why and how customary property practices are central to the economic viability of any property system, the Note gives a brief overview of Ghana's customary and statutory land law. The Note concludes with specific policy suggestions about how Ghana could better draw on the strength of its customary land sector.
Land makes up nearly three quarters of the wealth of developing countries, (1) and development leaders, (2) businesspeople, (3) and academics (4) have long argued that well-crafted property rights are necessary to unlock the value of that land and encourage economic development. Though some celebrate the notion that property rights are constantly evolving towards efficiency, (5) scholars are increasingly recognizing that the emergence of efficient, enforceable property rights is not inevitable, especially in the developing world. (6)
Recent high-profile work on property rights has sparked renewed popular interest in legal solutions to land-based development issues, (7) but unfortunately that interest has often been "directed at the viability in emerging market societies of these ideas, relationships, and institutions as transplanted from Western industrial democracies, not at unearthing their roots and nurturing those roots within the local communities." (8) Across Africa, for example, attempts to craft property rights have largely been state-driven, top-down programs which attempt to replace customary forms of land ownership with Western-style property practices such as formal land title registration. (9) Programs attempting to implement these reforms have largely failed. The present wave of land tenure reform in Africa is uniquely placed to learn from these mistakes and craft a new and more development-friendly approach to land tenure policy. (10)
This Note argues that rather than attempting to undermine norms about property, successful land tenure reform must use those norms as the basis for an integrated property system that combines custom and statute. Building from theory and using Ghana as a case study, the Note seeks to address why and how customary land practices must be incorporated into formal land law in order for land tenure reforms to promote efficient and equitable economic growth. In doing so, it attempts to build a bridge between the theoretical underpinnings of property reform, exemplified by the New Institutional Economics approach described in Part I, and the practical issues of land administration in developing countries.
Reconciliation of customary and statutory property law in Africa has never been more important, nor more difficult, than it is now. Countries across Africa are currently struggling to create rational, efficient land policies that merge modern statutory law with the traditional customary law that governs many people's day-to-day lives. (11) The costs of failure, of the divergence between formality and reality, can be alarming. The government bulldozers that destroyed thousands of homes and businesses throughout Zimbabwe in the summer of 2005 as part of President Robert Mugabe's Operation Drive Out Trash gave a particularly vivid representation of this battle. (12) Those homes, like the shanties, kiosks and unofficial markets that make up a large share of Africa's "informal" economy, existed outside of Zimbabwe's formal law. This made them, in Mugabe's vision, "trash." Although some scholars have begun to address the issue of how property rights transition from customary or Marxist systems into private capitalist systems, (13) few have taken on the difficult and relatively unglamorous task of proposing feasible, country-specific solutions for how custom and informal rights can be integrated with statute into a nationwide economy. At best, failure to turn theory into practice deprives the informal sector and hence the economy of growth opportunities. At worst, it leads to destructive conflicts like Operation Drive Out Trash.
Ghana is not as extreme an example as Zimbabwe. But, like most sub-Saharan African nations, it depends on land as the basis of its economy while simultaneously struggling to solve land-related problems and reconcile a legal system that is divided between custom and statute. (14) Land is Ghana's single most valuable asset and the foundation of the national resource base. (15) Agriculture accounts for more than sixty percent of the country's jobs. (16) Despite its economic importance, however, the land sector in Ghana is plagued with a number of major problems. (17) The National Land Policy (NLP) of Ghana, published in June 1999 after years of broad consultation, provides a good overview of the nature and scope of the obstacles to land sector development, including indeterminate boundaries, weak land administration, and inadequate land tenure security. (18) These problems, and the importance of land itself, are representative of problems across the countryside.
Land sector problems are particularly acute in urban and peri-urban areas, where the growing population has increased social and economic demand for land. (19) Rather than being able to profit from rising land values, some Ghanaians have found their livelihoods sold out from under them by unscrupulous chiefs or government administrators. Lacking the power to claim just compensation, many Ghanaians are doomed to landlessness. (20) In peri-urban Kumasi, not only are instances of "rough sleeping" (on verandahs, kiosks, or pavements) increasingly common--one in six men and women do so--but overcrowding is also on the rise, with some villages averaging six to twelve people per room. (21) The housing crunch has also led to occasional hostility between displaced landowners and the chiefs and developers they perceive to be benefiting from their calamity. (22) Recent studies report that customary ownership rights in rural areas, too, are becoming less secure as commercial transactions and development increase. (23) The homelessness, poverty, and violence springing from these property failures demonstrate that land tenure security is a problem not just of economic development, but of human rights.
Government interventions meant to address these problems have sometimes worsened them. (24) Well-intentioned but ill-considered land reforms can exacerbate the division between custom and statutory law, leaving vulnerable groups such as women with less protection than they had under customary systems. (25) The government's acquisition of vast tracts of land in high-pressure urban areas only compounds the problem, especially when that land is cleared and then left unused. Shanties and kiosks begin reappearing almost overnight, stubbornly asserting customary claims in the face of government bulldozers.
Moreover, competition for land rights has led to a rash of land disputes, (26) draining time and resources away from land development. The wave of land-related litigation has completely overwhelmed the government bodies responsible for dealing with property disputes. Formal land courts are themselves hampered by poor case management, corruption, staff shortages, and antiquated procedures such as recording of evidence by the judge in long hand. (27) Customary courts, which are still popular and powerful, offer a potential alternative to the state courts, but they lack state power to compel attendance or enforce decisions. (28)
This Note argues that many of these problems can be solved by better integrating customary law and customary authorities into the statutory system. Part I introduces the theoretical analysis, using New Institutional Economics as a framework to argue that the economic success of a property system is dependent on the degree to which it integrates social norms and customary law. Parts II and III then flesh out the theory by describing the various statutory and customary land rights which prevail in Ghana. Understanding of these rights is an essential predicate to the formulation of feasible policy proposals. Part II describes the statutory land law of Ghana, which, like that of most African nations, is heavily influenced by colonialism. Part III briefly describes the other half of Ghana's dual property system: customary property law and its attendant rights and structures. Finally, Parts IV and V translate the first three Parts into specific policy prescriptions for Ghana, suggesting, in Part IV, practical ways to integrate legal systems, and, in Part V, methods of integrating legal authorities such as chiefs into the formal system.
In keeping with the argument of this Note that land tenure policy must be country-specific and attentive to practical realities, these policy solutions are meant to be both flexible and specific to Ghana itself. They certainly do not comprise a one-size-fits-all land reform for all of Africa. Nonetheless, it is hoped that they can be valuable both to academics and to government officials contemplating land reform.
THE ECONOMIC AND SOCIAL ROOTS OF PROPERTY
This Note argues that land-based economic growth in developing countries like Ghana depends on the successful integration of statutory and customary land law. (29) In other words, the two foundations of property--as formal law and as a social agreement--must be closely aligned in order for property to play a role in enhancing economic efficiency. (30) In support of that practical argument, and to give theoretical justification to the policy prescriptions in Parts IV and V, this Part draws on New Institutional Economics (NIE) theory, which recognizes the value of both formal and informal institutions and applies a transaction costs-based approach to property rights and social norms. (31) By emphasizing practice as...