(2004) JLP 50: 1-28
Richard C. Crook
Abstract
The majority of land in Ghana is still held under a diversity of customary tenures, embedded in family, community and chiefly institutions; but land disputes may be adjudicated in a variety of institutions: informal arbitrations and family tribunals, chiefs’ courts, quasi-legal state agencies and the formal state courts. Current debates on how to protect the land rights of the majority of customary land holders revolve around the respective merits of customary and non-state regulation (said to be accessible, flexible and socially embedded), and state systems, which are said to offer more certainty, impartiality and non-discriminatory codes and procedures. In Ghana, however, customary and state legal codes have been integrated for some time, and the state courts, which are frequently used as first instance adjudicators, apply customary rules. Does this mean that in Ghana the merits of customary law can be combined with the certainty and enforceability of state court dispute settlement?
Based primarily on survey and interview data, the research analyses how litigants in three selected state courts perceived the experience of taking their land cases to court. It was found that, in spite of the problems and delays associated with the state courts, there was a very strong demand for authoritative and enforceable remedies which only the state could provide. It was also found that the justice offered by the state courts was not as alien or inappropriate as commonly supposed. Particularly in the Magistrates Court, judges were well respected and their procedures seen as sufficiently flexible and user-friendly. Moreover, the extreme reluctance to entertain out-of- court settlements casts doubt on the notion that proposals to move to more use of ADRs will be successful if they fail to offer equivalent authority, fairness and enforceability.