The Integration of Multiple Layers of Land Ownership,Property Titles and Rights of the Ashanti People in Ghana

Thomas Shaw

Published online: 13 October 2012# Springer Science+Business Media Dordrecht 2012

Abstract This paper presents the impacts, feasibility and limitations of rolling outlarge-scale land titling programmes in West Africa. Using the Ashanti as a case study,this paper explores the possible intended and unintended impacts of de Soto'srecommendations for the Ashanti people. It discusses the merits and pitfalls of an“end-state” that includes an integrated land registration system and access to formalfinance. The process by which this “end-state” is reached is perhaps the crucialquestion which needs to be addressed. The complex dynamics of customary landtenure are discussed to assess the current attempts to administer land in Ghana.Overall, the paper investigates the legal and social implications of a “new formality”before considering the practical challenges of applying these ideas. Three keyrecommendations are proposed based on a theoretical and contextual analysis toassess the options that can create or facilitate a new formality compatible with theinternational capitalist economy.

Keywords Ashanti . Property . Titling . Ownership . Tenure . de Soto

Introduction

Throughout West Africa, the co-existence of multiple land registry systems, some ofwhich are not recorded in written documents, has led to a complex land tenuresystem. In many cases, the “official” land registry system, based on private ownershipthrough legal documentation, does not recognise customary land rights and otherlocal land-holding agreements. In this way, multiple systems of land and propertyregistration have led to confusion and conflict represented by lengthy legal battlesover ownership, use and sale of land and property. To add a further degree ofcomplexity, there is not one respected arbitration committee but several, which may

Urban Forum (2013) 24:155–172DOI 10.1007/s12132-012-9175-8

T. Shaw (*)Development Planning Unit, University College London, London, UKe-mail: thomas.shaw.09@ucl.ac.uk

come to different conclusions depending on the principles and understanding of localland rights. Therefore, one lengthy legal battle may be overturned by a differentcommittee. Such a system is fraught with uncertainty and completely unsustainable asit fails to deliver lasting solutions.

Almost every nation in the world has a formal property system, but the success ofthat system is dependent upon citizens gaining access to and benefiting from thisaccess. Those outside the formal property system are what anthropologist Keith Hartdefined as informal, but this is perhaps illustrated more effectively by FernandBraudel's bell jar (Hart 1973). Braudel sought to understand why Western capitalismworked for only a small minority of the population and how the rest of the populationcould benefit from the capitalist system.

“The key problem is to find out why that sector of society of the past, which Iwould not hesitate to call capitalist, should have lived as if in a bell jar, cut off fromthe rest; whywas it not able to expand and conquer the whole of society? [Whywasit that] a significant rate of capital formationwas possible only in certain sectors andnot in the whole market economy of time?” Fernand Braudel (1982: 248)

Hernando de Soto's book, The Mystery of Capital, proposes that the reasoncapitalism benefits only the West is based on access to formal property. The majorityof people, who cannot convert what he describes as the “fruits of their labour” intoformal property rights, live outside the bell jar and cannot capitalise on the opportu-nities provided by a capitalist economy. In this way, the bell jar makes capitalism anexclusive club open to just a privileged few, enraging those left outside looking in (deSoto 2000: 68). De Soto was not the first to argue that the poor should have access toproperty. Debates regarding regularisation in the Third World date back to 1968,characterised by the work of John Turner (Turner 1968). Turner argued that grantingthe poor security of tenure would encourage them to invest in and improve theirhousing, which urged international agencies to recommend property titling as ameans to stimulate investment in housing consolidation (Linn 1983). However,opponents of regularisation, including Burgess (1982), suggested it would result inthe displacement of the poor through “raiding” by higher income groups, thusharming the intended beneficiaries. The third school of thought questioned the impactof regularisation, suggesting such a programme would have little or no consequenceon the lives of the poor people (Gilbert 2000; Fernandes 2002; Varley 2002). Centralto this argument is that for many without formal property titles, housing improvementcould be undertaken due to the high de facto security of tenure (Varley 1987).

The majority of the research undertaken on regularisation has been conducted inLatin America (de Soto 2000; Varley 2002). Drawing on parallels with English feudaltimes, this paper aims to investigate the practicality and impacts of applying de Soto'slogic to the Ashanti Kingdom in Ghana.

Theoretical Framework

The success of Hernando de Soto's work is largely due to “the fact that, perhaps betterthan anyone else before him, he has been able to emphasise the economic dimensionand implications of urban illegality” (Fernandes 2001: 3). Regularisation programmes

156 T. Shaw

became increasingly popular with international organisations and became a keyelement in the World Bank's (1993) strategy of “enabling market to work” (Jonesand Ward 1994). Regularisation policies granting title deeds to poor people as Gilbert(2001: 4) correctly points out is a “vote winner and who is going to object to beinggiven legal ownership of their property?” Therefore, governments have been quick tojump on board, at least during electoral campaigns.

According to de Soto, housing that is not recorded in the formal property systemimplies resources wasted in defective forms because without legal documentation,this housing cannot be turned into capital. Thus, the sale of such housing is restrictedto local people under local contracts and perhaps, more importantly, the asset cannotbe used as collateral for a loan, as the formal financial institutions will not acceptcustomary rights as proof of ownership. The issue at stake is therefore not the actualasset, but the representation of that asset in legal documentation, which is the key tomaking capitalism work. The documentation is the tangible representation of a hiddennetwork that connects property to the rest of the formal economy.

In the developed world, every parcel of land and property is represented in a legaldocument, which can be used as collateral against loans and thus can be the stimulusthat a small business needs to ultimately succeed. In the USA, a mortgage on anindividual's house is the single most important source of funds for those wishing tostart up a business (de Soto 2000: 7). This is because the land/property establishes alink to the owner's credit history ensuring the owner is reliable and, if not, the lenderhas the address where he/she can hold the owner accountable, thus reducing the riskon the loan. Such a representational process enables immovable assets to be con-verted into movable capital increasing potential and opportunity. The key issue isrepresentation in a legal document. De Soto compares the enterprises of poor peoplein “undercapitalised” economies to that of corporations that cannot sell shares toobtain new investment.

Capitalism and Representation

“Capitalism stands alone as the only feasible way rationally to organize amodern economy. At this moment in history, no responsible nation has achoice.” Hernando de Soto, The Mystery of Capital (2000: 1).

Although there is no consensus on the precise definition of capitalism, itmay be understood as an economic system in which the means of productionare privately owned and central to this is the process of capital accumulation.The accumulation of capital is effectively wealth creation through the owner-ship of assets with value or potential value where there is an expectation ofprofit on that asset either through sale, rent or interest.

Under pressure from international organisations, national governments have re-moved trade barriers, encouraged foreign investment and cut subsidies, thus embrac-ing capitalism or at least accepting (as de Soto points out) that they have noalternative. For developing countries and former communist nations, the result forthe majority has been economic suffering, falling incomes and growing inequality.Such dissatisfaction was expressed by Malaysian Prime Minister Mahathir Mohamadin an article for the New York Times in which he stated, “For much of the world, themarketplace extolled by the West in the afterglow of victory in the Cold War has been

The Integration of Multiple Layers of Land Ownership in Ghana 157

supplanted by cruelty of markets, wariness towards capitalism and dangers of insta-bility” (de Soto 2000). So, why is it that capitalism “triumphs” in the West yet failseverywhere else? This is the primary question which Hernando de Soto tries toanswer in his book The Mystery of Capital.

In simple terms, de Soto argues that the failure of capitalism in the Third Worldboils down to the lack of formal property titles. It is not assets that the poor lack, butthe process of converting these assets into capital. In fact, de Soto (2000: 32)calculated the real estate value held by the world's poor without formal propertytitles to be at least $9.3 trillion, a sum which in the past 10 years (since the book waswritten) is likely to have risen considerably. For this potential value to be realised andbecome economically useful, the physical structure needs to be converted into arepresentation in the form of a title or contract. This is how capital is born. In thishidden universe where capital lives, the house is no longer a shelter; it is an economicand social concept. This is the difference between a house and a property.

It is important to state that many economists have questioned the validity of deSoto's figure of “dead capital”, criticising his methodology and suggesting such ahigh figure is highly unlikely. Many urban planners, including Payne (2001), claimhis understanding and presentation of individual property ownership in the West isalso incorrect.

Quite clearly, ownership of assets is required if those assets are to be usedproductively, and it is the formal property system that provides the legal frameworkfor this ownership. In addition to ownership, a formal property system states the termsof transactions and governs the use of assets enabling owners to create active capital.

De Soto (2000: 45) argues that “any asset whose economic and social aspects arenot fixed in a formal property system is extremely hard to move in the market”. Thisis simply not true. If we have learned anything from Hart (1973) and his coining ofthe term informal, it is that these informal or illegal markets function effectively formany different assets including invaded land. It is more accurate to state that thisinformality or illegality affects prices of assets and, with regard to land, it reduces thecost to varying degrees depending on the de facto security of tenure. It may also bethe case that such transactions are reduced, not in terms of volume, but in terms ofscale. In other words, transactions are limited to a small network of family and friendswhere strong social contracts substitute the legal contracts of the formal propertysystem. The following is a modified version of Fernand Braudel's bell jar analogy(Figs. 1 and 2).

While Braudel correctly identifies and expresses the exclusion of the informalfrom the formal, he fails to recognise that the real problem is not two separate marketsin themselves, but the further exclusion within the informal sector. If the onlyproblem was two separate markets, then there is nothing to suggest that one wouldbe more successful than the other; the problem is the internal connections of theinformal market. Therefore, this paper proposes that there are indeed thousands,perhaps millions of much smaller bell jars within the informal economy, whichrepresent family and close friends. It is within these smaller bell jars that assets aretraded in the informal economy where the social contract is strong and trust exists inverbal arrangements, not in legal documents as in the formal sector. It is thereforeevident that the limitations of the informal sector are scale and capacity. Surplus isdifficult to create, as there is a limit on value if trade is confined to a closed market.

158 T. Shaw

Formal property titles are required if these closed markets are to be opened up and thepotential and energy of the informal sector is to be realised.

Integrating Multiple Systems

Integration of Western land and property systems did not happen by accident, and itrequired a huge effort from politicians, legislators and judges to sort, assess andrecord property into one integrated registration system. By bringing all the propertyinformation together into one central system, an unchallengeable and legally validresource was created, which allowed property to be represented and capital to becreated and moved around at an unprecedented rate (de Soto 2000). In basic terms, inorder for information to be useful, it needs to be held in an accessible and functionalformat that works for the whole population, not just a small minority. However, that isnot to say nations need to “formalise the informal” or “de-formalise the formal”.Instead, a new agreed formality should be created by pulling together information,rules and laws from existing property systems to create a hybrid registration system,which will allow capitalism to work and enable planners to make more informeddecisions. The Western land registration system allows owners to maximise the valueof their assets through a much larger network of people.

Fig. 1 Braudel's bell jar

Fig. 2 Modification of Braudel's bell jar metaphor

The Integration of Multiple Layers of Land Ownership in Ghana 159

When considering the application of de Soto's ideas to a certain context, whether inWest Africa or elsewhere, it is first necessary to develop an understanding of not onlyland administration but also social customs. Using the Ashanti Kingdom, Ghana as acase study, we can further develop the idea of a proposed new formality beforemaking a number of recommendations.

Case Study: Ashanti Kingdom, Ghana

Land policy in developing countries has increasingly emphasised the importance ofacknowledging and developing existing customary or traditional tenure systems todeliver a fair allocation of land and property rights. In Ghana, land transactions arebecoming increasingly monetised because of an increase in land prices, and therefore,the equity of customary systems is being challenged (Ubink 2007). As land values riseand transaction costs increase, the power of customary chiefs also increases becausethey can control and direct the economic benefits associated with this process.

The 1992 Ghanaian Constitution placed all customary land in the appropriate“stool, skin or land-owning family on behalf of and in trust for their people”. It alsostates that land should be governed by the customary authorities on the basis ofcustomary law, which is acknowledged as a source of Ghanaian law (articles 267(1),36(8) and 11, 1992 Constitution). In Kumasi and the wider Ashanti region, customaryland is known as “stool” land, which is derived from the stool symbol of chieftain-ship, which is believed to hold the souls of their forbearers. In Ashanti, this is referredto as the “Golden Stool”.

Land regularisation and titling programmes and their prospective merits need to bejudged in the context in which they are set. The vast majority of both theoretical workand practical implementation has been conducted in Latin America. It is thereforeperhaps inappropriate for authors such as de Soto to generalise their findings inrelation to the “Third World and former communist nations” (de Soto 2000).

Importance of Land in Ghana

“Land administration in Ghana is bedeviled with multiple sales of parcels ofland by different parties claiming ownership of the same parcel of land, the pooruse of compulsory acquisition powers by government agencies to acquirevarious tracts of land for which they are unable to pay compensation, weakmanagement, both public and customary.” (Ghana LAP 2003)

The government has begun the process of reforming land administration in anattempt to remedy some of the aforementioned problems. A new National LandPolicy (NLP) document has been drawn up, of which the objectives and recommen-dations provide the basis for a 15-year implementation period. This comprehensiveoverhaul of land administration in Ghana has been long overdue. However, althoughthe policy was launched in 1999, nothing happened until 2003. The NLP has beenbuilt with a view to “addressing some …fundamental problems associated with landmanagement in the country”. It aims at “Establishing and developing a land infor-mation system (LIS) and network among related land agencies in the country; linking

160 T. Shaw

them up with sub-regional and regional networks; and establishing and maintaining ageo-spatial framework database in the Survey Department.”

Ashanti

The Ashanti (or Asante or Assante) people are a major ethnic group in central Ghana.Before being colonised by the British in 1900, the Ashanti people had built up apowerful empire in West Africa. The Ashanti Empire at its peak spread across Ghanaand covered large parts of what today is known as Côte d'Ivoire and Togo. It wasbordered by Benin to the East and the Dagomba Kingdom to the North. The AshantiKingdom to this day remains protected by the constitution within the Republic ofGhana.

Research suggests that initially, land in the Ashanti region belonged to a number ofindependent families. These families then joined together to form a larger groupcreating a clan. The clan would then elect a chief or head of all these previouslyindependent families and the land would be viewed, not as fragmented family plots,but as a whole unit, and it became known as “tribal” land. During this transition, theresponsibility of land distribution moved from the head of the household or familygroup to the new head or chief. The land was therefore distributed among the clanmembers in return for certain services (Rattray 1923: 220). Tribal land was obtainedin one of five ways: by conquest, as a gift, forfeiture, purchase or escheat (reversionof land to feudal lord, crown or state due to failure of heirs to take up the land).

This cohesion of different families, and later clans, represented what Rattray termsthe formation of a “loose confederation” (Rattray 1923), which was headed by theKing at Coomassie (Kumasi). Records held in Kumasi show the ancestral kings,queens and chiefs linked to the land, but these are not legally binding or compatiblewith the “formal” or “official” land registry systems. This therefore poses a compli-cation for government departments who may wish to integrate multiple land systemsunder one legally approved registry system.

This religious or customary element may contribute to the resistance of localpeople in West Africa to the sale of land to “foreigners”, or even in some cases tomembers of their own tribe. This reluctance was demonstrated by violent oppositionto measures such as the 1894 Crown Lands Bill (CLB) and the 1911 Forest Bill.These acts were drawn up and delivered by authorities and individuals who had eitherforgotten or disregarded the religious aspect of ancient laws regarding land rights(Rattray 1923: 217).

Common Land Ownership and Colonial Influence

Tribal land is nearly always held in the form of common ownership, albeit with anindividual, namely the chief, acting as the controller. Common ownership is aprinciple according to which the land and other assets of the tribe or another groupare held indivisibly and not in the names of individuals as in the case of Western landadministration. In other words, they are not considered, nor do they consider them-selves to be “owners” of the land. Instead, members are trustees of the land with aresponsibility to maintain and improve the land for the benefit of future generations.

The Integration of Multiple Layers of Land Ownership in Ghana 161

This clarifies the origins of the Ashanti's beliefs, that is, they are looking after the landon behalf of their ancestors.

The practice of common land ownership provides a stumbling block to de Soto andhis capitalism juggernaut as it is specifically designed to neutralise capital. Thecontrol of the land is through participation of members, and not through the injectionof capital. Common land ownership in Ghana, and indeed, through much of Sub-Saharan Africa (SSA), predates and operates parallel to the arrangement of colonisedalienated land. Tribes, clans, families or other groups living on the land have commonownership through customary traditions and not through acquisition.

The distribution of land with certain rights is commonly based on the social andpolitical history of the people and regions from which hierarchical relationships havebeen established. Inter-family relationships are equally important in determiningaccess to and use of land depending upon an individual's role or status within thefamily. This may differ largely between families depending on customs and tradi-tions. In this way, social networks govern access and use rights (Berry 1993). Thegoverning of such a system is rarely through enforcing a rigid and defined set ofregulations and rules, but through a series of negotiations with local land authorities.In this sense, customary law is not codified, but a natural process which facilitates andcontrols the process by which access to land and other resources is obtained(Chauveau 1998).

Much of the work (Lavigne Delville 2000) related to land research in West Africahas referred to local land-holding systems not as “customary” but as “sociallydetermined”, which is adaptable and develops within the framework of existingregulations. The importance of such flexibility is clear in an environment wherechanges in production and distribution methods can have great impacts on use andaccess rights, which are themselves tied up with land tenure. In this sense, “there is nosystem that is “traditional” or “customary” in itself, but there are forms of landmanagement based on customary principles” (Lavigne Delville 2000: 2).

Land Tenure

In the Ashanti system, every parcel of land is owned by somebody, the only exceptionbeing when an entire family dies. In this case, the land can be ownerless. In the eventof such a situation, the land would often be inherited by the odonko ba (slave orworker). If there was nobody to inherit the land, the plot would be absorbed by the“stool”.

A popular Ashanti proverb tumi nyina wa asasemeans that all power is in the land.The Ashanti people assign great recognition to the value of land, and this is strength-ened by the religious and customary meanings attached to land. In light of this, theAshanti are extremely reluctant to give-up land and do so only in an emergency. In1923, Rattray (p. 223) claimed, “it is these factors which have caused the process ofalienation known as ‘sale’ to be absent altogether, in the not very remote past, fromAshanti code of land laws”.

Formally registering land in Ghana will involve numerous visits to at least ahandful of different government offices just to gather the legal documents requiredto enter a claim for a property title. The process is long and costly which makesregistration difficult and sometimes impossible for the poorest people.

162 T. Shaw

Land Administration in Ghana

The Land Administration Project (LAP) in Ghana is an intensive reform programmesupported by a variety of international organisations and other donors including theWorld Bank and the Department for International Development (DfID). The LAPaims to achieve its objectives by focusing on four main elements of land administra-tion. These are as follows:

& Harmonising land policy and regulatory framework for sustainable landadministration

& Institutional reform and development& Improving land titling registration, valuation and information systems& Project management, monitoring and evaluation.

Central to the success of this reformation of land administration is establishing anddeveloping Customary Land Secretariats (CLS). Research by Antwi and Adams(2003a, b) found that across Ghana, over 80 % of land is held by customary bodies,which govern and distribute land to the people. Currently, the integration of thesecustomary records into and understanding of Ghana's formal land registry systemhave not been possible, and very few linkages between the two systems exist. Centralgovernment has made attempts in the past to formalise customary land titles, but withvery little success.

CLSs will operate within the existing political structure and will come into contactwith the formal sector, thus strengthening the link between the informal and theformal. The impacts of such links are hard to predict, but by being exposed to theexternal forces of the formal economy, both opportunities and dangers will becomeapparent.

According to economic law, the owner of the property is the best person tomake decisions regarding the purchase, sale and use of property rights (Alchian1965). If this is considered true, then the customary authority, in the form of alandowner, will be the best person to develop a land administration system for thatparticular area. This being the case, it will be the responsibility of the CLSs to recordand document property titles, which will include details relevant to the people and thecontext. The intention is to create a cost-effective and efficient way of recording landand property ownership, which will become functional outside of the local orcustomary society.

Consistent with the argument presented by Burgess (1982), the fear is that formal-ising and opening up land markets will lead to “raiding” or exploitation of the poor.The respect for and value placed on land by the Ashanti suggest such a scenario ishighly unlikely. The unwillingness of the people to sell to “foreigners” and their senseof responsibility for looking after the land for the ancestors means that only in anemergency would the Ashanti people consider selling. With this in mind, by formal-ising the land and granting legal property titles, the security of the poor's land rightsshould be increased, as intended.

By creating a more integrated land market, where information is more accurate andrights are better understood, individuals can make well-informed decisions, creatingthe opportunity to benefit economically from their land and property ownership orrights.

The Integration of Multiple Layers of Land Ownership in Ghana 163

Impact of the Land Administration Project (LAP)

Despite being only a decade old, the LAP has come under scrutiny and inmany cases been criticised for its methodological shortcomings. Perhaps thegreatest criticism has been the government's failure to publicise and promote theprogramme, which has undoubtedly reduced its effectiveness. In 2003, Dr. CallistusMahama reported that the programme was unknown outside of government circles,and although the Ministry of Lands and Forestry (MLF) had organised workshops,this was not enough. The nature of the project dictates that for it to be successful,common Ghanaians who deal in land need to understand and trust the new admin-istration system. This comes back to the need for legitimacy in the eyes of thepopulation. Without this legitimacy, the programme will fail in its objectives.Mahama (2003) calls for two parallel strategies. The first should systematically dealwith the adjudication of individual property rights and create a transparent system toprocess current transactions. The second parallel strategy should be focused ondeveloping policy, land regulations and it should facilitate further titling of landand property. By creating two complementary systems, it will allow existing regis-tration processes to continue uninterrupted while future policy is developed. This is acritical issue in order to avoid political and economic stagnation. It also buys time forthe policy makers to ensure they create a system that will provide long-term improve-ments in land administration for all Ghanaians.

It is clear that the majority of people in Ghana are dependent on customaryagreements for land occupation, a system which is embedded into their traditionsand way of life. However, there is a formal system for administering land, and thesetwo systems operating in parallel are what have produced this legal pluralism(Kasanga and Kotey 2001). These two parallel systems have created a number ofdifficulties, hence the call by authors like de Soto for the integration of the two(Williamson and Ting 2001). However, building on existing customary arrangementshas also gained much attention and is increasingly popular in Sub-Saharan Africa.The benefits of the second option are thought to be increasing accountability and, inmany cases, it offers a low-cost mechanism for governments to deliver land (AldenWily 2008).

The need for change is now becomingly increasingly apparent with the increasingregularity of claims that chiefs are abusing their position of power for personal gain.This has brought into question the equity of existing customary communities, whichhad seemingly operated relatively well for many years.

Practical Implications and Recommendations

This section presents the impacts, feasibility and limitations of rolling out large-scaleland titling programmes in the context of West Africa. In doing so, the possibleintended and unintended impacts of de Soto's recommendations for the Ashantipeople are discussed. Following this, the merits and pitfalls of an “end-state” areassessed, including an integrated land registration system and access to formalfinance. The process by which this “end-state” is reached is perhaps the crucialquestion that needs to be addressed. Once again, the complex dynamics of customary

164 T. Shaw

land tenure are presented to assess the current attempts to administer land in Ghana.The impact of the LAP is assessed, identifying benefits and limitations of the schemebefore proposing three recommendations for the project to become more effective inserving the poor people of Ghana.

In his book The Mystery of Capital, de Soto concentrates on making capitalismwork for those outside the West. The first problem here is that not everyone lives in acapitalist society, and perhaps they do not wish to do so. There is an assumption thatcapitalism will triumph, and that it is just a matter of time. This assumptionneeds to be challenged in many contexts, and this includes large parts of WestAfrica.

Central to the idea of a capitalist political economy is private ownership with capitalaccumulation achieved through, amongst other things, the sale of assets. In the Ashantiregion, private ownership, even if it is recognised informally, is rare because thecustomary land administration system has entrusted the control of tribal land to anelected chief. Therefore, this idea of individual ownership and personal capital accumu-lation appears marginal in its relevance. The reason capitalism works is because ofaccess to a huge marketplace in which trade can be convenient and profitable. If theAshanti sale of assets to “foreigners” is frowned upon and extremely rare, thengranting land titles would have no impact in terms of capital accumulation throughproperty sale.

De Soto's response would probably be to reiterate his stance that “capitalismstands alone as the only feasible way rationally to organise a modern economy”(2000: 1) and that in order to climb out of poverty, society must conform to acapitalist way of operating. Does it have to be capitalism or custom? Can it beboth? In the case of the Ashanti, because of the importance, value and beliefsattached to land and the societal structure, it seems that it has to be one or theother.

If it is to be one or the other, then how realistic is it to expect an entire society builtaround certain traditions, beliefs and values to conform in the way that de Soto isproposing? It would seem that this is highly unlikely.

Representations and Legal Implications

Central to de Soto's proposition is the standardisation of legal documents, propertytitles and asset representations; the purpose of all these is to allow the integration ofthe informal with the formal. However, such integration in addition to economiccompatibility would also encourage social and spatial integration and with it a loss ofcustoms. Individual property rights would of course remove the land rights of thetribal chiefs, which, given the power of the chiefs in Ashanti society, would bedifficult to achieve.

By distributing formal property titles to the people, it will be possible to increasesecurity of tenure in certain instances and may prevent or discourage chiefs fromselling tribal land for personal profit. However, it is plausible that some chiefs wouldrefuse to acknowledge non-customary rights and proceed regardless of formal title.Even in instances where the chief did recognise and respect the formal property titles,the power of the chief within society could result in the removal of benefits from theindividual or family resisting sale.

The Integration of Multiple Layers of Land Ownership in Ghana 165

The Impact of Formal Property Titles

Perhaps the strength of de Soto's work is his focus on the positive opportunities thatbecome possible within a capitalist economy. For example, he predicts the impact of aland-titling scheme with the assumption of economic integration into Braudel's belljar resulting in increased capital accumulation, housing improvements and the elim-ination of poverty. The way in which it is delivered is so simple and straightforward itappears unchallengeable. Why then has this not already been done? However, inreality, while de Soto addresses the question of why land registration and propertytitling should be done, he rarely addresses the how. De Soto, by generalising hisrecommendations to “developing countries and former communist nations”, avoidsthe most difficult questions posed by land-titling programmes. While it would beimpossible for him to address more than a few context-specific cases, he fails tosufficiently recognise the importance of the different starting points at which nationalgovernments begin.

Process: Informality→Formality0New Formality?

When considering process, it is important to be clear about needs to be achieved. Shouldthe property and legal system be deformalised, removing the legal apartheid thatcurrently exists between the formal and the informal? Or should the informal beformalised by bringing all the small informal bell jars inside the large formal bell jar?The third option is to integrate the informal and formal by creating a “new” formalitycarefully constructed using the rules and regulations of existing social laws and customs.

de Soto himself discusses the possibility of a “new” formality, but this seems tocontradict his central argument which implies that conforming to the existing formalcapital-compatible system is the only option. Similarly, Braudel, through his bell jaranalogy, implies that it is up to the informal to conform to the formal and not vice versa.

Despite having recognised the futility of a generic blueprint for creating anintegrated and equitable property system, such a blueprint can be useful to learnfrom historical attempts to integrate multiple land systems. Property is sociallyconstructed (Posner 1989), and all modern standardised property systems are theresult of extralegal social contracts. This is the reality in every country including theUSA (Ellickson 1991). This suggests that property law and agreements are mosteffective when they are constructed socially by achieving a popular consensus onownership, transfer and use of assets, including land. Outside of the West, informalsocially determined contracts exist for a very good reason; they have been moreeffective than formal law in creating consensus between people as to how their assetsshould be managed (de Soto 2000: 181). Plato was the first to recognise that sociallydetermined agreements underpin almost all successful legal systems. This is becausewhere legitimacy is derived through consensus it is more likely to be respected thanwhere it is imposed.

“To be legitimate, a right does not necessarily have to be defined by formal law;that a group of people strongly supports a particular convention is enough for itto be upheld as a right and defended against formal law.” Hernando de Soto,Mystery of Capital (2000: 182)

166 T. Shaw

Experience has shown that those laws which have been imposed without agree-ment have lacked legitimacy and thus have in many cases been unenforceable, as isseen throughout the global South (Gilbert 2000; Fernandes 2002; Varley 2002). Inthis sense, any attempt to integrate customary and formal property/land laws inAshanti needs to be done by reaching some level of agreement on how to governand represent assets. Legal systems in the West developed from the social andeconomic structures that existed between different groups where usages were trans-formed into custom, and these customs into law (Berman 1983). Berman (1983: 557)stated that “Law both grows upward out of the structures and customs of the wholesociety, and moves downwards from the policies and values of the rulers of society.Law helps to integrate the two”. By founding the legal property system in existingsocial agreements, Western nations created a system that was widely accepted.

One of, if not the first attempt to generate a recorded property system wasconducted by William I of England who orchestrated a survey in 1086 of the nationto find out “what or how much each landholder had in land and livestock, and what itwas worth” (Anglo-Saxon Chronicle). The results were recorded in the DomesdayBook. It is a common misconception that the primary reason William conducted thissurvey was to collect taxes. It was actually to establish his legitimacy as the King ofEngland. The purpose is in many ways irrelevant. It was perhaps by accident, butWilliam had created the first written account of ownership, and the judgment of theKing's assessors was final (the law).

When drawing parallels with the current situation in the Ashanti Kingdom in Ghana,it is interesting to note that in 1086, large plots of land were held by a few wealthyindividuals and not by independent families. Similarly, the chiefs in the Ashanti ownlarge plots of land. In both situations, the common people rent from these wealthylandowners entering into a patron–client relationship. This is a relationship which can beremoved through a developed formal property system. Therefore, it is important thatfurther research be conducted on the process of moving from a few wealthy landownersto independent ownership of property. The question here is, as with so many large-scaleundertakings, whether to work from the bottom-up or the top-down.

Recommendations

Three key recommendations are proposed based on theoretical and contextual anal-ysis to determine the best opportunity to create a new formality, which will becompatible with the international capitalist economy.

In English feudal times, all land was held by the king following William theConqueror's victory at the Battle of Hastings in 1066, and all tenure agreements werebuilt upon this understanding. The king would allocate land to his nobles; in return,he would receive services and faithfulness, which maintained his position andlegitimacy. Beyond this, the nobles would allocate smaller plots of land to thecommoners. In this structure, the commoners had tenure as granted by the noblebut not the right to sell the land because the land itself was owned by superiors (firstby the king, secondly by the noble). This hierarchical structure over time gave way toindividual ownership, which included the right to use and sell the land to a buyer oftheir choice (Davis 1976: 14). Such understanding proves useful when making

The Integration of Multiple Layers of Land Ownership in Ghana 167

recommendations for the process by which Ghana can achieve individual propertyownership and sale rights. The parallels are clear when the nobles are replaced withchiefs, who allocate land to the Ashanti people in return for certain services. Similarto the English comparison, individual families are not free to sell land to outsiders andare therefore stuck in a patron–client relationship. The most interesting and valuablelesson is that the process of moving from collective land ownership to individualownership, a process which is critical in the process of improving people's ability toescape poverty and accumulate capital.

Recommendation 1: Two-Phase Strategy

The process by which this end-state of a new formality can be reached should beconducted in two phases. First, representatives from all customary authorities shouldcome together to produce an agreed written legal framework for land tenure andrights in the informal sector. This is likely to be a lengthy process and will requirepoliticians, lawyers and arbitration bodies to bring together all existing customarylaws to be considered before producing a standardised informal legality.

The benefit of this is obvious if one returns to the bell jar analogy. By amalgam-ating all the existing informal arrangements (the small isolated informal bell jars) intoa standardised system, an integrated informal community (a single large informal belljar) is created (see Fig. 3).

When considering that 80 % of Ghana's land is held by customary authorities, thisintegration would create an incredibly powerful customary institution, which woulddominate the formal institution at least at a national level. Despite remaining essen-tially extralegal in the sense that it is outside of the formal legal framework, the newinformal arrangements need to be delivered alongside retribution measures for break-ing the agreed regulations.

The second phase of the integration and formation of the new formality wouldinvolve perhaps the simpler task of merging the formal and informal/customaryinstitutions. Because of the power that the informal institution has gained through

Fig. 3 Bell jar analogy representing the relative size of two parallel systems (intended output of phase 1)

168 T. Shaw

its size and land coverage, it will carry considerable weight in this process. Theinformal institution has been socially determined and therefore has significant legit-imacy which, as discussed, is critical if laws, rules and regulations are to be enforce-able. A good interrelationship between those who plan and those whom the planningaffects is essential for land-use planning to be effective. Without this relationship,there will be misinformation, mistrust and misunderstanding. Planners and the ben-eficiaries of the new formality both have power, but this power arises from differentsocio-political sources. The planner, on one hand, has the power born of authoritythrough the process of delegation; on the other hand, the power of the beneficiariesarises more from political influence (Davis 1976: 296) (Fig. 4).

The difficulty in this second phase will most likely arise from concerns expressedby formal stakeholders including financial institutions that may be reluctant tocooperate with tribal communities. Involving financial institutions in the develop-ment of a new formality is essential. This may be alongside a government housingbank or through the provision of subsidies or guarantees as incentives.

The importance of these two processes cannot be overstated, and therefore, it isessential that time is taken to achieve the optimum output for all interested groups.Many of the Western legal systems took over 100 years for the multiplicity of localrules and regulations to be assessed and harmonised. Although these processes maynot be as lengthy, it will be necessary to achieve modest results in Ghana. It would beignorant to start setting inflexible deadlines, which would undoubtedly influence theoutput. Progress will depend on the level of coordination, organisation and manage-ment that can be achieved by the government agency overseeing the programme.

Recommendation 2: Information Distribution

As highlighted earlier in this section, the current LAP in Ghana has failed toadequately publicise its initiatives, which has resulted in people missing the oppor-tunity to obtain land titles. In Kumasi, residents are being given only a 6-monthwindow opportunity during which they can apply for legal title. This deadline hasrestricted participation, rendering the process futile. Future programmes need to bemore accessible to the poor Ghanaian.

Additional funding needs to be allocated to the marketing strategy with localgovernments responsible for ensuring that every chief informs his people. In some

Fig. 4 Bell jar analogy representing phase 2 and the formation of a “new” socially determined formality

The Integration of Multiple Layers of Land Ownership in Ghana 169

cases, the chiefs may be against titling programmes because it reduces their power;therefore, other ways of channelling information need to be explored. By increasingpeople's knowledge of the options available to them and the potential benefits ofchoosing these options, this patron–client relationship can be severed. When indi-viduals become aware that they can legally operate both inside and outside of thecustomary society without permission or assistance from the chief, the chief's powerwill be reduced, and this patron–client relationship can be eradicated.

Successfully rolling out land-titling programmes can also provide better informa-tion for city planners, which is critical for future decision-making and the extent ofthe impact of their plans. Currently, urban planners lack sufficient information. Theydo not have complete maps of their area, nor do they have sufficient understanding ofthe Ashanti people's socio-economic conditions. Land-titling programmes alone willnot be sufficient to bridge the gap between the planners and the beneficiaries, but itcan at least provide a connection point and certified mapping of communities.

In addition to improving publicity of surrounding individual programmes orprojects, a deeper commitment to human resource development is required forsustained development of land management in West Africa. According to Mahama,“One of the weaknesses in the design of land administration projects is often thecommitment to human resource development and particularly formal education andtraining, both in-country and overseas, short courses and study tours” (GhanaWeb2010). At least 10 % of the overall budget for any land administration project shouldbe channelled into human resource development, and many international agenciesencourage a figure closer to 30 %. Currently, in Ghana, there is insufficient researchinto land administration processes. This has resulted in research being conducted byconsultants who often have limited understanding of the context and/or may have nolong-term interest in the project. For the proposed land administration project to beeffective and progressive, it will require a number of forward-thinking academicswith extensive research experience in land administration. Academics require a well-funded and coordinated higher education system, and the development of a nationalresearch structure should be a priority for national government. Research centres andthink tanks can also provide valuable contributions to the discussion and implemen-tation of land administration across the developing world.

A robust monitoring and evaluation procedure needs to be rolled out to assess theimpacts of land administration across Ghana and to ensure that goals and objectivesare being met while working inside established guidelines. Monitoring and evaluationprocedures should be performed by a wide variety of stakeholders including influ-ential individuals, groups, organisations and institutions who are also affected bychanges in land administration.

Recommendation 3: Streamlining

The structure and procedure of land and property registration in Ghana need to beredesigned to be more accessible and user-friendly. Currently, in Ghana, formal proce-dures to register land require dealings with six different government departments andseveral other land authorities. To make the process simpler, the creation of a newdepartment responsible for all land titling and registration applications is recommended.This new department will allow resources and information to be centralised, reducing

170 T. Shaw

administration costs and the time taken to process applications. Previous experiencessupport this, showing that almost all successful land administration projects have beenconducted under the jurisdiction of one single land administration body.

Currently, there are so many departments and arbitration commissions for landadministration that no decision is final, as it may be overturned by a differentauthority a few weeks later. By streamlining decision-making, this situation will beavoided, and personal and organisational accountability will increase. The proposedre-organisation of land administration in Ghana will also give rise to a more partic-ipatory democracy at the national level by removing inconsequential bodies.Although there may be less staff employed in land administration, the role these staffmembers play will be more productive, working towards an agreed end-state, com-pared to the current situation whereby legal processes go round in circles benefitingonly the lawyers and administrators.

This streamlining will be required as part of the first recommendation, and it maybe necessary to create a second non-permanent authority responsible for organisingand producing the new legal framework.

This new department does not need to be responsible for controlling land useacross Ghana, but should be the single land administration body in charge ofregistering land and mapping (including topography) currently unmapped areas.Effectively, this body will be responsible for gathering and processing informationrelating to “what is where” and “who owns what”.

Designing, structuring and organising a new land administration programme inGhana is clearly a huge challenge and one that may take time to deliver. To meet thischallenge requires the development of a system controlling land administration,which will facilitate the best possible use of land by a wide variety of groupsincluding individuals, customary landowners, private businesses and governmentagencies. Current inefficiencies lost through unnecessary bureaucracy, corrupt offi-cials and greedy chiefs can be greatly reduced by simplifying the process of landregistration and administration.

Returning to de Soto's explanation of illegality and his observation that people “donot so much break the law as the law breaks them” (de Soto 2000: 23), it is important toreduce obstacles to illegality by simplifying the registration process, thereby encour-aging people to take the legal route. The government of Ghana has a great incentive toattract people back to the formal/legal sector of society, as this will raise considerablefunds through property taxes and transaction costs. These need not be large fees andshould be comparable to the fees currently paid to chiefs within the customary arrange-ments. In this way, the money is being recycled into the national economy and canprovide needed investment into all aspects of land management and administration.

References

Alchian, A. A. (1965). Some economics of property rights. Il Politico, 30, 816–829.Alden Wily, L. (2008). Custom and commonage in Africa rethinking the orthodoxies. Land Use Policy, 25

(1), 43–52.Antwi, A., & Adams, J. (2003a). Economic rationality and informal urban land transactions in Accra,

Ghana. Journal of Property Research, 20(1), 67–90.

The Integration of Multiple Layers of Land Ownership in Ghana 171

Antwi, A., & Adams, J. (2003b). Rent-seeking behaviour and its economic costs in urban land transactionsin Accra, Ghana. Urban Studies, 40(10), 2083–2098.

Berman, H. (1983). Law and revolution, the formation of the Western legal tradition. Cambridge: HarvardUniversity Press.

Berry, S. (1993). No condition is permanent, the social dynamics of agrarian change in sub-SaharanAfrica. Madison: The University of Wisconsin Press.

Braudel, F. (1982). The wheels of commerce. New York: Harper and Row.Burgess, R. (1982). Self-help housing advocacy: a curious form of radicalism: a critique of the work of

John F.C. Turner. In P. M. Ward (Ed.), Self-help housing: a critique. London: Mansell.Chauveau, J. P. (1998). La logique des systèmes coutumiers. In P. Lavigne Delville (Ed.), Quelles

politiques foncières en Afrique rurale? réconcilier pratiques, légitimité et légalité. Paris: Ministèrede la Coopération/Karthala.

Davis, K. P. (1976). Land use (McGraw-Hill series in forest resources). New York: McGraw-Hill.De Soto, H. (2000). The mystery of capital: why capitalism triumphs in the west and fails everywhere else.

London: Bantam Press.Ellickson, R. C. (1991). Order without law. Cambridge: Harvard University Press.Fernandes, E. (2001). Contribution to roundtable discussion on The mystery of capital. Interplan, 67, 2–9.Fernandes, E. (2002). The influence of de Soto's The mystery of capital. Land Lines, January, pp. 5–8.Gilbert, A. G. (2000). Financing self-help housing: evidence from Bogotá, Colombia. International

Planning Studies, 5, 165–190.Gilbert, A.G. (2001). On The mystery of capital and the myths of Hernando de Soto: what difference does

legal title make? Paper presented to ESF/N-AERUS Workshop on Coping with informality andillegality in human settlements in developing cities, Leuven, 23–26 May.

Hart, K. (1973). Informal income opportunities and urban employment in Ghana. The Journal of ModernAfrican Studies, 11, 61–89.

Jones, G. A., & Ward, P. M. (1994). The World Bank's ‘New’ Urban Management Programme: paradigmshift or policy continuity? Habitat International, 18, 33–51.

Kasanga, K., & Kotey, N. A. (2001). Land management in Ghana: building on tradition and modernity.London: International Institute for Environment and Development.

Lavigne Delville, P. (2000). Harmonising formal law and customary land rights in French-speaking West Africa. In C.Toulmin&J.Quan (Eds.),Evolving land rights, policy and tenure in Africa (pp. 97–121). London: DFID.

Linn, J. F. (1983). Cities in the developing world: policies for their equitable and efficient growth. Oxford:Oxford University Press.

Payne, G. (2001). The mystery of capital: why capitalism triumphs in the west and fails everywhere else.Habitat Debate, 7(3), 23.

Posner, R. (1989). Hegel and employment at will: a comment. 10 Cardozo Law Review 1625.Rattray, R. S. (1923). Ashanti. Oxford: Oxford University Press.Turner, J. F. C. (1968). Housing priorities, settlement patterns, and urban development in modernising

countries. Journal of the American Institute of Planners, 34, 354–363.Ubink, J. M. (2007). Tenure security: wishful policy thinking or reality? A case of periurban Ghana.

Journal of African Law, 51(2), 215–248.Varley, A. (1987). The relationship between tenure legalization and housing improvements: evidence from

Mexico City. Development and Change, 18, 463–481.Varley, A. (2002). Private or public: debating the meaning of tenure legalization. International Journal of

Urban and Regional Research, 26(3), 449–461.Williamson, I., & Ting, L. (2001). Land administration and cadastral trends—a framework for re-

engineering. Computers, Environment and Urban Systems, 25(4–5), 339–366.World Bank. (1993). Housing: enabling markets to work. Washington: The World Bank.

Further Reading

Newspaper articles

Land administration project in Ghana: a way forward. GhanaWeb, 24 Sep 2003. Available at: http://www.ghanaweb.com/GhanaHomePage//features/artikel.php?ID043522. Accessed 7 August 2010. ByDr. Callistus Mahama.

172 T. Shaw