4.3.2. Gendered Dimensions of Dispute Resolution Preference

Despite the overwhelming preference for customary adjudicatory mechanisms, the results do not necessarily imply that there is complete trust (in terms of fairness and transparency of the procedures employed) in them (Tables 4 and 5). As evidenced in Table 5, the disaggregated results suggest that traditional adjudicatory mechanisms are not entirely immune from gender biases. Indeed, the qualitative interviews highlighted instances of alleged discrimination where traditional authorities used their power to subvert justice, especially in favour of powerful actors within the local political hierarchy and indigenes in the event of contestations with migrant farmers. In the case of women, for example, focus group discussants argued to the effect that customary mechanisms were somewhat discriminatory (gender-biased) to the extent that women even had to rely on spouses and male relatives to enforce their land rights in the event of any contestations. In most of the surveyed communities, it was socially unacceptable (taboo) for women to discuss land matters with strangers without prior approval of their male relatives or husbands. Interestingly, they were equally unenthused about the statutory court as a forum for enforcement of their property rights, citing a myriad of reasons, including fear of possible backlash by the community for not according respect to traditional authorities, marital tensions, leading to instability of marriage, and poverty.

It is inferable from the above-enumerated reasons that fear of community sanctions and poverty perhaps constitute the underlying reasons for respondents' preference for the customary mechanisms and not necessarily because of equity in the adjudicatory processes. The low levels of education could also be a potential barrier to the enforcement of land rights via the formal adjudicatory mechanisms, especially in the case of women (in rural areas) who might be intimidated by the formal procedures that characterise the state courts [61]. This observation is supported by the fact that a far lesser proportion of respondents in Kakum (28%) and Ankasa (7%) who had sought help from either the customary and/or statutory dispute resolution mechanisms were women. The peculiar vulnerability of women is witnessed in the fact they generally constitute the largest segment of the poor, with limited access to requisite financial resources and education, particularly in the rural areas. Yet, the statutory mechanisms, as observed earlier, are touted as expensive and bureaucratic, which invariably implies that seeking enforcement or protection of land rights within such mechanisms could well be outside the reach of the poor and vulnerable. To the extent that this inference is correct, it is not totally surprising that the majority of respondents prefer traditional courts as a forum to assert their land rights notwithstanding issues of discrimination and procedural inequities (both perceived and real) that may characterise customary mechanisms.

In spite of a low preference for the formal mechanisms of dispute resolution, interviews with officials of the Assin Fosu Municipal Court revealed that land-related cases constituted the highest number of cases registered, although official/exact figures were not readily available. Further enquiries at the Assin Fosu and Elubo stool land offices showed that these offices were playing an unconventional role acting as forums for the resolution of land disputes (through mediation) involving farmers and landowners, especially in communities within their jurisdictional scope. It can therefore be concluded that whereas several options are available to landholders as forums for enforcement and protection of their land rights, in practice, they have restricted options, as evidenced by the above-enumerated challenges plaguing the existing mechanisms for dispute resolution. As pointed out by Rao [62], 'Legal pluralism does not imply a normative preference of one legal order or the other, as the choice of the arena for contestation is ultimately a political choice, determining as it does the access to resources.' Thus, the different identities, subject positions (within the local socio-political hierarchy), authority and fairness of procedures used could be instrumental in determining final outcomes [17,62].
