**1. Introduction**

Over the past two decades or so, the good governance agenda has gained currency both in theory and in practice within the context of contemporary land management as a plausible strategy for navigating a sustainable development trajectory in the global South, particularly in sub-Saharan Africa (SSA) [1–3]. The promotion of the good land governance agenda has reinvigorated into the spotlight a raging debate on the land question regarding contextually relevant pathways to engender land tenure security and equitable customary land management in the SSA context [3–6]. Central to this emerging critical discourse is the enduring challenge of widespread customary land disputes exacerbated by the increasing commodification and individualisation of communal lands in most rural parts of SSA [7–9]. Although the wide-ranging socio-economic and political consequences of customary land disputes in affected areas and countries are well-documented in the literature [7,10], it is also acknowledged that the effects of customary land disputes vary across different spatial continuums, from rural to peri-urban to urban areas [7]. There is increasing evidence that rural and peri-urban areas in several SSA countries (including Ghana) have become contested zones in the light of the growing land commodification and large-scale commercial land acquisitions [8,11,12]. The interplay of such local-level

**Citation:** Asaaga, F.A. Building on "Traditional" Land Dispute Resolution Mechanisms in Rural Ghana: Adaptive or Anachronistic? *Land* **2021**, *10*, 143. https://doi.org/ 10.3390/land10020143

Academic Editors: Uchendu Eugene Chigbu, Ruishan Chen and Chao Ye Received: 6 January 2021 Accepted: 28 January 2021 Published: 2 February 2021

**Publisher's Note:** MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

**Copyright:** © 2021 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

land disputes and contestations poses several far-reaching developmental challenges considering the primacy of secure and equitable land access to the achievement of many of the Sustainable Development Goals (SGDs) in SSA countries [11,13].

Against this background, successive SSA governments (with support from the World Bank and other international development partners) have over time pursued Westernstyled individualised statutory land tenure as a panacea to the seemingly insurmountable problems of tenure insecurity and contestations over land ownership [4,6,8]. This has been predicated on the underlying logic that customary tenure institutions (although controlling about 80% of SSA's total land area [14]) are anachronistic and not fit for purpose in addressing contemporary tenurial challenges [6,8,15,16]. Advocates of this conceptual view highlight the ambiguity, uncertainty and looseness of customary tenure structures, which render them ineffective or weak in dealing with land disputes and tenure insecurity, necessitating formalisation [17,18].

In spite of the great expectations that supplanting customary land tenure systems with Western-styled statutory tenure systems will afford greater certainty in land rights (tenure security and efficient dispute resolution mechanisms), and by extension economic development [19,20], the implementation outcomes in most parts of SSA (including Ghana) have, at best, been disappointing [21]. The under-performance of statutory systems has prompted many critics to question the suitability of the blanket pursuit of formalisation as a panacea to supposedly insecure customary land rights in the SSA context [15,22,23]. For instance, Bromley's [15] review suggested that formalisation in the SSA context has, in many instances, rather re-created and exacerbated existing land inequalities and contestations over land. While a few recent studies have reported some relative success of land titling intervention programs in SSA countries [24,25], altogether the available statistics still show far less achievement with respect to addressing problems of tenure insecurity and land disputes on a regional scale.

While the reasons for the failure of past land tenure reforms are complex and wideranging [16,21], a burgeoning critical scholarship expresses a strong optimism that customary tenure institutions, despite their imperfections, are still relevant and fit for purpose in the contemporary context, especially in under-served rural areas of SSA countries [22,26,27]. In other words, their arguments echo important contextual or place-based differences rather than universalist descriptions that shape and determine tenurial outcomes. Thus, given the right institutional tinkering or tenurial re-engineering of customary tenure institutions (which others have characterised as adaptation [28]), they are better positioned to deliver tenure security and respond to other emergent tenurial challenges [5,9,22]. In any event, an important take-home message from the two opposing conceptual positions rests on how customary tenure institutions fare [ing] on the ground in terms of safeguarding tenure security and, more particularly, effectively addressing land disputes across the sub-region [22,29]. Although a theoretical exposition is useful, a conclusive examination of this hypothesis is certainly an empirical matter.

Yet, to date, in spite of the renewed policy interest in customary tenure institutions, little is known, at least empirically, about the factors that have allowed them to withstand colonial and post-colonial reforms and retain their role in local-level land governance. With the notable exception of a few recent studies [8,9,30,31], there is a relative dearth of empirical focus on the potential role of customary systems in the contemporary context, particularly with respect to land disputes and traditional dispute resolution pathways [32–34]. A more nuanced and detailed contextual understanding of the operations of customary tenure institutions and the limits of their adaptability remains critical to better inform and guide on-going and future interventions towards the integration of customary tenure systems into the formal statutory framework for improved tenure security and effective land dispute resolution [8,9]. As argued by Anyidoho et al. [35], the process of tenurial adaptation cannot happen in isolation from the historical, political and legal context, which change cannot be imposed but must be built upon the institutional structures and practices that have evolved over time. Cleaver [36] also observed that the effectiveness of tenurial

interventions is predicated on a socially informed analysis of the content and effects of informal/customary institutional arrangements rather than their form alone.

From the foregoing considerations, three key questions beg answers, namely (1) why have traditional land dispute resolution institutions persisted, (2) are they still fit for purpose or relevant in contemporary land governance and (3) how can customary dispute resolution mechanisms be effectively integrated into the formal statutory framework across socio-spatial contexts? This paper seeks to address these questions by focusing on Ghana's context characterised by a pluralistic tenurial regime, which is currently undergoing a process of harmonisation to enhance tenure security and address land disputes as a point of departure. Synonymous to other SSA countries, Ghana initiated a 25-year land administration reform (LAR) in 2003 as a plausible developmental pathway to enhance tenure security and efficient land administration [37,38]. Central to the LAP agenda is streamlining of the disparate customary and statutory tenure structures for effective local-level land dispute resolution using the customary land secretariats as a key operational vehicle. Although this paper focusses on Ghana's context, the findings of the study are broadly relevant for other SSA countries with a similar tenurial context in providing useful lessons towards the effective implementation of land reforms to achieve beneficial outcomes.

The rest of this paper is structured as follows. The next section provides an overview of contemporary land governance in Ghana, particularly focusing on land disputes and resolution mechanisms to provide a contextual background to situate the subsequent empirical analysis. Section 3 discusses the methods and data used for the paper, followed by a discussion of the results on dynamics of land disputes and resolution pathways in Section 4. The concluding aspect discusses the implications of the findings for integrating customary tenure arrangements into the statutory framework.

#### **2. Contemporary Hybrid Land Governance and Dispute Resolution in Ghana**

To sufficiently understand the contemporary debates about the hybridity of land governance in Ghana, it is instructive to consider the historical antecedents of land policies and interventions that have shaped the evolution of neo-customary tenure institutions in the country. Within this context, Ghana is characterised by a pluralistic legal framework consisting of customary and statutory law operationalised within a multi-sectoral governance environment [37,39,40]. Available statistics indicate that 78% of Ghana's total land is classified as customary land, with the remaining 22% falling under the domain of the state (20% exclusively owned by the state and 2% vested lands that are managed by the state but communally owned) [8,41]. The disparate customary and statutory tenure systems have developed over time and undergone several reforms to reach their present state today (for a detailed overview of Ghana's bifurcated tenurial system, see [22]).

While all prominent studies on Ghanaian land tenure [39,40,42] have underscored how customary law is formally recognised and remains an important body of law in all aspects of Ghana's society, the resolution of land disputes has traditionally been in statutory courts. Yet, evidence suggests that the formal court system is clogged with land-related disputes. Over time, increasing contestations regarding land ownership (which is rooted in the legacies of colonialisation; see [43,44]) has meant the introduction of several land policies and interventions by the colonial politico-administrative framework to restructure the supposedly inefficient and insecure customary tenure arrangements [40,45]. A flurry of post-independence legislations also operated to entrench Western-styled statutory tenure, resulting in the dualism of the land governance structures.

Dispute resolution over access to land resources is an important driver of locallevel tensions across sub-Saharan Africa, given the marked diversity in the socio-cultural, political and economic spheres [46,47]. Within this context, a critical aspect of the debate in Ghana and SSA generally is the inherent disconnect between customary and statutory tenure systems, which are poorly articulated and seem to be on a collision course [39,40,48]. As the tenurial system defines the conditions of access, use and control of land and its associated resources in a particular socio-political context, it also invariably underpins

livelihood security and sustainable land use and management. Nonetheless, issues of inequities in access to and control of land, tenure insecurity and protracted land disputes are characteristic of Ghana's existing tenurial regime [37,49,50]. Within this purview, there seem to be little consensus on the importance of customary tenure arrangements and institutions in promoting equitable land management and sustainable development in general.

Synonymous to other SSA countries, contestations over land in Ghana are acute and insidious, permeating/far-reaching implications for socio-economic development [10]. The increasing commodification and individualisation of land are manifested in the growing land scarcity and disputation over land [8,29]. According to the National Land Policy [37], the causes of land-related disputes have been identified to include multiple sales of land. Whereas the advent of land disputes predates the colonial era, this period was a watershed moment, ushering the indirect rule that served to supplant local customary tenure institutions with statutory tenure. Recent attempts at the harmonisation have witnessed the recognition of customary tenure institutions as central in the effective resolution of land-related disputes, particularly at the local level operating in tandem with the formal state courts [10]. Central to this are debates about how to successfully harmonise the disparate customary and statutory tenure to promote efficiency, enhance the security of tenure and reduce disputes over land. Current debates in the literature revolve around two main issues: (1) whether customary tenure should be supported due to its inherent flexibility, social embeddedness and accessibility and whether it guarantees tenure security [10] and (2) customary tenure is anachronistic and does not adequately safeguard security due to its inherent power imbalances [8,29].
