Article of the Month -
Customary Tenure Institutions and Good Governance
Anthony ARKO-ADJEI, Ghana and Jitske de JONG, Jaap
ZEVENBERGEN, Arbind TULADHAR, the Netherlands
This article in .pdf-format
(20 pages, 119 KB)
1) This paper is a peer reviewed paper prepared
for the FIG Congress 2010 in Sydney, Australia, 11-16 April 2010. At the
Congress it was presented by Prof. Jaap Zevenbergen in an invited
session about land governance in Africa. It gives good information about
customary tenure and good governance in Ghana, and could be of interest
to other African countries.
Handouts of this presentation as a .pdf file
Key words: Customary tenure institutions, good governance,
land administration, peri-urban areas, Ghana
Although customary tenure institutions come under considerable strain
and their functions tend to be weakened by the existence of a statutory
institutional framework, many people in peri-urban areas continue to
rely on customary tenure arrangements for land delivery. These
institutions maintain their traditional power and social responsibility
to allocate the rights to use land, resolve conflicts, and carry out
overall management of customary land. Yet, little attention has been
given to whether or not the activities of these indigenous institutions
meet good governance objectives in land administration. This paper
analyzes key governance issues within customary land delivery and
presents a framework for assessing customary tenure institutions for
peri-urban land governance. The framework which is constructed on five
governance dimensions is built on an empirical study in three peri-urban
customary areas in Ghana and literature from other areas. We conclude
that while indicators of other qualities may be also important, measures
of efficiency and effectiveness in land delivery processes, equity in
distribution and allocation of land resources, accountability of
stewardship, participation of community members in land management
activities and decision-making, transparency and access to information
are essential to any complete assessment of good governance in customary
land delivery processes.
Since the UN declaration of the Millennium Goals for Development in
2000, ‘good governance’ as a concept has been on top of the agenda of
the development discourse, influencing many policy objectives of
governments and international organisations all over the world. There
are now clear indications that both governments and donors are
recognising the importance of governance in attaining sustainable
development goals. However, the emphasis given to different aspects of
sound governance varies in different settings, and also depends on the
focus of the organisations.
Over the last decades, many international organizations through
several campaigns have given increasing attention to the importance of
introducing good governance principles in land administration (LA)
projects. These global campaigns are necessary from the fact that
governance in land tenure and administration cannot be separated from
governance in other sectors (FAO, 2007). Where governments are not
committed to democracy, the rule of law and human rights, it will be
difficult to improve governance of land tenure and administration. Many
of these campaign initiatives have been influenced by the World Bank,
UN-Habitat, FAO, UNDP and FIG (UNDP, 1997; UNCHS-HABITAT, 2000; FIG,
2001;2004; UNDP, 2006; UN-HABITAT, 2007). These campaigns cover a wide
range of issues cutting across the different governance dimensions, even
though they have their own objectives. The campaigns underline security
of tenure and access to land as important factors for improving the life
of the poor and achieving sustainable development (Zimmermann, 2006).
Despite much colonial legislative influence, customary authorities
continue to play a prominent role in many parts of Africa. Many
peri-urban cities still depend on customary tenure arrangements for land
delivery. Customary tenure institutions administer virtually all the
land in these areas, even where the demand for land transactions and
more formal property rights are rapidly increasing (Deininger, 2003).
The institutions still maintain their traditional power to allocate land
and provide land for many people and for many purposes. They interact
with statutory institutions in the administration of customary land.
Furthermore, customary tenure institutions have introduced several
innovations in land delivery processes as a way of reaffirming their
control of land and to be adaptive to the statutory systems (Arko-Adjei
et al., 2009). These are reasons why some schools (Fourie, 1998;
Deininger, 2003; Ho, 2009; Toulmin, 2009) are seeking for decentralising
land administration (LA) to the local level and for developing local
institutional capacity to enable them manage their own lands. These
scholars argue that customary tenure institutions are a preferable
option to reinforce accountability, to ensure low-cost land delivery and
to achieve equity. Their argument has support from the fact that
customary tenure institutions are built on structures and procedures
that are open to public scrutiny and amendment and therefore more
sensitive to the local conditions (UN-HABITAT, 1996). For example,
Kasanga and Kotey (Kasanga and Kotey, 2001) argue that customary tenure
institutions in Ghana are able to guarantee accountability to the local
communities and villages more than the state land management mechanisms.
Nevertheless, the superimposition of state management institutions
has stunted customary tenure institutions and disabled them to
effectively manage their lands (Kasanga and Kotey, 2001). Consequently,
these institutions have not been able to evolve to the extent that they
can cope with the speed, volume, diversity and complexity of land
management issues in peri-urban areas. Several reports from peri-urban
areas in Africa indicate that when customary land transactions become
increasingly monetised, important issues of effectiveness, equity and
accountability are raised (Ubink, 2007; Toulmin, 2009). Particularly,
customary land delivery activities are marked by abuse of power, land
grabbing, conflicts, evictions, tenure insecurity and lack of
accountability of stewardship. This involves important land governance
issues that require critical assessment, especially if the institutions
required for administering land are to be built on the institutional
framework of customary tenure. We argue that since the customary tenure
institutions are at the entry point of both customary and statutory land
delivery processes, it is appropriate to extend good governance
assessment in LA to the customary tenure institutions. Assessing
governance in customary tenure institutions presents an opportunity for
holistic diagnosis and improvement in LA, which otherwise would not be
possible if limited to only formal institutions and legislations. In
this study’s context, the term ‘customary tenure institutions’ is used
to describe a system of authority in charge of managing customary land.
Such institutions are constituted by chiefs, councils of elders,
indigenous courts and steering committees who are responsible for
regulating access to land, managing conflicts and security among
community members, regulating settlements, and recording and maintaining
Starting from these considerations, the goal of this study is to
analyze the current customary land delivery processes in peri-urban
areas and to develop a framework for assessing land governance in the
customary tenure institutions. Although LA covers a number of functional
areas (Enemark, 2005), this paper highlights the land tenure aspects in
the assessment of the customary tenure institutions. The argument in
this paper is outlined in three stages. First, it outlines some key
governance concepts and related issues in LA. Second, the paper outlines
some important governance issues arising from the field study conducted
in three peri-urban customary areas in Ghana and also from literature to
illustrate why governance in customary tenure institutions needs to be
considered. Third, based on the findings, the paper discusses issues
that can be considered when assessing good governance in customary land
delivery. The framework discusses efficiency and effectiveness of the
customary tenure institutions for providing tenure security and dispute
resolution, transparency and accessibility to information, equitable
distribution of land resources, participation, and accountability of
2. GOOD GOVERNANCE AND LAND ADMINISTRATION
Nowadays, governance does not only occupy a central state in the
development discourse but it is considered as a crucial element to be
incorporated in development strategies (Zimmermann, 2006). The discourse
of governance and its emphasis is generally influenced by the policy
objectives and the context within which it is being applied. According
to FAO (2007), on the one hand, for those who see authority and power in
society vested in many institutions, governance reflects the role of the
private sector and civil society in decision-making alongside that of
the government. On the other hand, for those who see the view of
governments restricted to how the state serves its citizens, governance
is seen from how officials and public agencies acquire and exercise
power and authority to determine public policy and provide public goods
and services. Simply put "governance" means the process of
decision-making and the process by which decisions are implemented
(UN-ESCAP, 2009). In the civil society, governance inheres cooperation
between civil and political societies and between the state and its
citizens (Roy, 2008). Hydén and Mease (2004) further elaborate on
governance as “the formation and stewardship of the formal and informal
rules that regulate the public realm, the arena in which the state as
well as economic and societal actors interact to take decisions”. In
this paper, we use governance as defined by FAO (2007) as the process of
“It is the way in which society is managed and how the competing
priorities of interests of different groups are reconciled. It includes
the formal institutions of government but also informal arrangements for
achieving these ends. Governance is concerned with the process by which
citizens participate in decision-making, how government is accountable
to its citizens, how society obliges its members to observe its rules
Good governance therefore relates to the way important decisions are
made by the society, organisations or groups of persons and it
encompasses the choice of persons to participate in such decision-making
as well as who and how to render accounts of the entire process and
stewardship. According to the former UN Secretary General Mr. Kofi
Annan, “good governance is perhaps the single most important factor for
eradicating poverty and promoting development” (cited in Graham et al.,
2004). Since land is one of the four basic factors of production (i.e.
land, labour, capital and entrepreneurship) and characteristically fixed
in supply, it requires maximum attention through prudent administrative
The need for good governance in LA is influenced by increasing
incidences of tenure insecurity and land conflicts. The recent
privatization and liberalization of the property/land market, and the
increasing demand and competition for land have given rise in many
developing countries to high insecurity of tenure in many areas (Bell,
2007). The sources of tenure insecurity are very complex and can be
linked to many factors (Wily and Hammond, 2001). Several reports from
many areas in sub-Saharan Africa indicate that the vulnerable in the
society, especially indigenous farmers and urban poor have been forcibly
evicted from their land as a result of urban development (Toulmin and
Quan, 2000; Ubink, 2008). Similarly, Zimmermann (2006) reports that
millions of women around the world suffer abuses of their equal rights
to own, inherit, manage and dispose of land. According to Zimmermann,
efforts to recognise women’s rights in land have been met with
formidable resistance because of patriarchal control in land tenure.
Furthermore, illegal grabbing of land has also become a common practice.
The land of vulnerable ethnic minorities is grabbed to enable illegal,
or government-sanctioned concessions to proceed (Bell, 2007). The rich
and powerful people in society claim land of others, thereby causing
land disputes and conflicts (Mathieu, 2006). Furthermore, tenure
insecurity may result from the formalisation of customary tenure through
land registration. Land registration based on the titling of customary
land gives security of tenure to few and insecurity to many others who
have other interests in the registered lands (Toulmin and Quan, 2000;
The above highlighted problems have been attributed to weak
governance in the various institutions in charge of administering land
(Magel and Wehrmann, 2001; Zakout et al., 2007). Particularly, in recent
times, LA activities have been associated with bribery and corruption,
especially in the developing world (Van der Molen and Tuladhar, 2007).
The major contributing factors to bribery and corruption are poor
remuneration of civil servants (Bell, 2007) and lack of rule of law
(Zimmermann, 2006). Bribery and corruption tend to benefit power holders
- political elites and government officials more than the poor and
vulnerable groups (Bell, 2007; Van der Molen and Tuladhar, 2007).
Furthermore, weak governance has been linked to lack of comprehensive
regulatory framework governing security of tenure, insufficient or
incoherent and improperly enforced legal provisions, lack of
transparency and access to information, inequity and unfairness, lack of
accountability, irresponsiveness of institutions to the plight of land
users and inability for citizens to participate in land governance
(UNDP, 1997; FIG, 2004; UN-HABITAT, 2004; UNHS and Transparency
International, 2004; UNDP, 2006; FAO, 2007; UN-HABITAT, 2007). For
example, weak governance distorts decision-making processes of public
officials entrusted in the people’s best interest and brings about
inequality which in turn impedes economic development (Zimmermann,
2006). Similarly, slow and bureaucratic procedures and high cost for
services makes LA institutions and judicial services only accessible to
the rich in society. Since LA is aimed at improving tenure security, it
is important therefore that institutions in charge of administering land
promote good governance principles so as to protect property rights of
individuals and groups, particularly vulnerable groups such as the poor,
women and indigenous farmers (Zakout et al., 2007).
In addition, the development of the World Bank’s supported land
related projects indicate that since the year 2000, the Bank’s attention
has been focused on institutional reforms to promote good governance
(Bell, 2007). Many of these land reform projects explicitly deal with
issues of corruption, accountability, efficiency, transparency and
development of good governance monitors and spatial data
infrastructures. With most of these land reforms activities in
developing countries being funded by the World Bank, IMF and other donor
agencies, it means that governments who show elements of good governance
are likely to benefit from these financial institutions and attract
investments. Other global governance campaigns (UNCHS-HABITAT, 2000;
UNHS and Transparency International, 2004; FAO, 2007) also recognise
that quality of land governance is the most important factor for
eradicating poverty and for improving tenure security. In these
campaigns, the argument is that clear and transparent rules, efficient
processes, access to land information, improved tenure security for the
poor and reduction of corruption have a direct link to achieving
sustainable development goals.
It is evident from the literature discussed above that governance in
LA can be assessed based on several dimensions. However, governance
issues in customary land delivery take a different form. Therefore,
extensive studies are needed in order to develop a framework for
assessing governance in customary tenure institutions.
3. LAND GOVERNANCE ISSUES IN PERI-URBAN CUSTOMARY AREAS OF GHANA
3.1 Study area and methods
This study aims at assessing whether customary tenure institutions
meet good governance objectives in land administration. To do so, we
used the case study research design. A case study approach was deemed
appropriate for this study because it is well suited to investigate the
interaction between phenomenon and their real-life context (Yin, 2003).
It is also an appropriate method for descriptive studies where the goal
is to describe the features, context and processes of phenomenon (Yin,
2003), which is the purpose of this study.
Three customary areas in Ghana were selected as case study to provide
empirical evidence to highlight the key governance issues within the
institutional arrangements of customary land delivery. These are
Japekrom stool land, Tamale skin land and Gbawe family land. The areas
were selected based on the diversity in the structure of the customary
institutional setup and varying land use actors. In addition, the areas
were chosen for fair representation of the three types of land owning
groups in Ghana, and to determine whether the perceived problems
highlighted are a growing national problem. The tenure systems of the
study areas blend elements of customary systems with statutory systems.
In other words, users gain access to land through a blend of “customary”
and “statutory” arrangements. Access to customary land is governed by
customary and statutory laws and controlled by both statutory and
customary institutions. The statutory laws contain provisions guiding
the management of all customary lands in the country.
In all the study areas, access to land and natural resources is
governed by rules that determine who can use the resources and under
what conditions. These rules are implemented by authorities that make
the rules and enforce them. These authorities whose legitimacy is drawn
from traditions are what we describe as customary tenure institutions.
The nature, responsibility and powers of the customary tenure
institutions differ in the three areas. In Japekrom and Tamale customary
areas, the institutions exist as an organised body in hierarchy headed
by “paramount chiefs” and manned by different levels of sub chiefs and
committees. In Gbawe customary area, however, the tenure institutions
exist as an autonomous body with four basic facilitating divisions
headed by the “family head”. Apart from the level of hierarchy, the
major difference in the organisational structure is the facilitating
divisions or committees that are set up in accordance with the needs and
aspirations of the land owing group. For example, Land Boards, Customary
Secretariats and Land Allocation Committees have been instituted to
manage all land related issues. This institutional setup dissociates
political chieftaincy from land chieftaincy, both of which were handled
by chiefs and family heads.
The study was conducted between September 2007 and January 2008. Due
to the exploratory nature of the study and secondly to get a deeper
understanding of the current land use and management systems in the
study areas, we used more discursive data collection tools (Yin, 2003)
to obtain information from the stakeholders. These discursive tools were
appropriate because it is suitable and easy to be understood by both
illiterates and literates. The tools also allow the use of follow-up
questions which provide a deeper understanding of the subject under
study. Different data collection tools were employed to obtain
information from a range of stakeholders. Two focus group discussions
were held in Gbawe, eight in Japekrom and eight in Tamale. The focus
group discussions were focused on chiefs and elders, land allocation
committees and unit committees in the communities (In the local
government system of Ghana, villages have unit committees whose majority
members are elected while few are appointed by government in
consultation with traditional authorities. They are involved in decision
related to education, revenue mobilisation, environmental monitoring,
etc). One oral narration was conducted in Gbawe, two in Japekrom and
four in Tamale. The oral narrations were conducted for some selected
elders to highlight the tenure system and the land delivery processes.
Semi-structured interviews/questionnaires on how landholders and users
(303) have conducted and participated in land acquisition processes,
land use, land transfer and the indigenous dispute resolution were
conducted. Questionnaires were used for selected land sector agencies
and private professionals (18) to understand their interaction with
customary tenure institutions. Secondary data (both published and
unpublished) was gathered through a literature study which helped to
understand the nature of the tenure system in the study areas. Thematic
and issue based content analyses were used to analyse the transcripts
and secondary information for answers to identify the key governance
issues. Based on these key governance issues, we created a framework for
assessing governance in customary tenure institutions (Table 1). The
framework describes the dimensions and the indicators that provide an
in-depth analysis of the customary land delivery processes and the
interaction between the institutions and other stakeholders.
3.2 Key land governance issues
Arko-Adjei et al. (2009) have discussed in detail the tenure changes
in peri-urban areas in Ghana. However, in support of the argument in
this paper we highlight here the critical areas that need to be
considered in developing a framework for assessing governance in
customary land delivery of peri-urban areas.
3.2.1 Access to land and security of tenure
Prior to colonisation, indigenous members of customary areas could
access land through the lineage system while non-community members
access land through grants of various forms. The study reveals that
individualisation and commercialisation of customary land have created
many tenure insecurity problems for both indigenes and settlers. Tenure
insecurity problems in customary land are complex and may stem from many
sources. Commonly among them are loss of usufructs rights, forced
eviction, divorce, and disenfranchisement as a result of cross cultural
marriage between matriarchal and patriarchal families which leaves
children without inheritance rights (Mahama and Dixon, 2006). The study
indicates that most indigenes that lost their land in Tamale and
Japekrom are farmers whose farmland gave way to residential
developments. These lands are given to settlers for residential
purposes. The farmers are compensated for only the crop they have lost
or with a residential plot. These indigenous farmers, whose livelihood
depends on farming, later sell the plot given to them and become
landless. The state may also be a source of tenure insecurity. According
to Wily and Hammond (Wily and Hammond, 2001) some indigenes in Ghana
have lost their land to the state through compulsory acquisitions
without compensations. According to the report, compensation on land
claimed by the government over 30 years has not been paid to the
affected persons. Migrants and tenants find it difficult to access land
or have to do so on severer conditional terms, for a shorter period and
for payments which are often equivalent to having purchased the land
outright (Cotula and Chauveau, 2007). Several other reports on secure
tenure show that the pressure from increasing demand and competition for
land has in several developing countries led to tenure insecurity for
disadvantaged groups (Kasanga and Kotey, 2001; Wily and Hammond, 2001;
Ubink, 2007; Zakout et al., 2007). For example, Kasanga and Kotey’s
report from peri-urban Ghana revealed that widows and divorced women who
lost their agricultural land were not compensated.
3.2.2 Fluidity of customary laws
Our earlier study revealed that manipulation of customary laws is
another important source of tenure insecurity. Fluidity of the customary
laws gives room for manipulation of various customary rules that seek to
protect subsistence and security of the group/community ownership. Some
chiefs and elders coalesce into interest groups that re-interpret the
customary laws to support today's opaque, inequitable and somewhat
convoluted system of customary LA. Similarly, in Ubink’s (2007) study
conducted in peri-urban Kumasi, Ghana, she observed that “some chiefs
claim that land belongs to the royal family in which the chief heads and
that the royal family had only given out the land for farming purposes,
to temporary caretakers, and can reclaim it when its use is changed
without any need for compensation”. Furthermore, lack of documentation
or codification of customary laws allows people to interpret them the
way that suits them.
3.2.3 Land grabbing and informal land markets
Although it is claimed that customary land cannot be
sold or completely be alienated, land sales have become more or less an
acceptable feature in peri-urban areas due to the fast developing land
markets in such areas. A broad range of varied contracts allowing access
to land between prospective developers and local land owing families and
chiefs exists in all the study areas. With these developments,
inheritance rights over land under customary tenure are no longer
guaranteed as many people belonging to the land owing families are left
to compete for less land (Amanor, 2006). This competition for land
creates land grabbing, informal land markets and conflicts. For example,
in the Japekrom customary area, indigenous members sell their farmland
in which they have usufructory rights without the knowledge of
institutions in charge of allocating and distributing the land.
Consequently, there have been severe struggles between indigenous
farmers and families on the one hand and chiefs on the other hand over
the right to convert farmland into residential use (Arko-Adjei et al.,
2009). These forms of informal land markets coupled with the widespread
use of middlemen in customary land transactions have also been observed
in parts of Nigeria (Ikejiofor, 2006). Invariably, land developers are
likely to face high cost for the land acquisition processes in such
areas. This study observes that many settlers have lost their land
because they have acquired their land through the wrong person.
3.2.4 Access to information and services
The study indicates that customary tenure institutions in all the
study areas are accessible to all persons. Therefore access to land
information and services is not difficult. However, the quality of
information to be accessed is always questioned. Until recently, land
delivery was oral and in many customary areas, there are no structures
for proper documentation, maintaining and recording land information.
Even where information is kept, it is distorted and disorganised, mostly
in the hands of individuals, thereby making it difficult to obtain
comprehensive and up-to-date information on land allocation and dispute
resolution (Interview with the Regional Stool Land Administrator,
Tamale, 15 December 2008).
3.2.5 Distribution of community resources
Rights in customary land exist to protect all interest groups in the
land owning groups. It is the responsibility of customary leadership to
ensure that the proceeds from communal land are equitably distributed
among all community members (Ikejiofor, 2006). With land becoming short
in supply as a result of urbanisation, gender and intergenerational
equity has become a challenging issue in customary tenure systems
(McEwan, 2003). The question is whether the customary systems as they
exist today have strategies that protect different groups of today and
the generations to come? Whereas Olima and Obala (1999) report from
Kenya that within the community/land trust group land has been allocated
on the basis of need rather than financial ability, the situation in
some parts of Ghana looks different. Land resources get in the hands of
few people while proceeds that come from land sales are not used for the
benefit of the community. In many communities in sub-Saharan Africa
where patrilineal inheritance is practiced, women do not gain access to
land in their own rights.
3.2.6 Abuse of power and stewardship
The object of customary land governance is that land is vested in
groups whose leader is entrusted with the responsibility of
administering their land for and on behalf of the entire group. Chiefs
and heads of families, clans and tribes are not in anyway permitted to
take any unilateral decision concerning the acquisition or occupation
and use of land or the utilisation of resources emanating from the land.
This structure of customary systems should make customary tenure
institutions accountable to local people because of strong kinship ties
(Clement and Amezaga, 2009). However, several authors suggest that
accountability in customary tenure systems diminishes especially where
these customary mechanisms for holding chiefs accountable have collapsed
(Toulmin, 2009). Under such conditions, customary authorities abuse the
power vested in them by exhibiting opinions showing that they no longer
hold a fiduciary position (Kasanga and Kotey, 2001). For example, Ubink
(2008) reports that in Ghana, some chiefs assume complete ownership
responsibility, and display tendencies to adopt landlord-like positions
with regard to customary land. They take unilateral decisions and in
many cases the activities concerning the land are executed without the
knowledge of the community members (Ubink and Quan, 2008). Some chiefs
and headmen abuse their responsibilities by allocating large tracks of
land to themselves or their associates, especially individuals who
provide them with money, beasts, alcohol and material goods and services
(Mugyenyi, 1988). In such areas, chiefs’ administrative roles in land
right transactions enable them to appropriate community members’
interests for purely economic motives.
3.2.7 Land conflicts
Although there is no immediate data available, land conflicts exist
in all the study areas. The main sources of conflict in these areas are
uncertainty of boundaries or allocation of the same piece of land to
more than one person. Uncertainty of boundaries occurs when the land
marks by which the real boundaries are defined no longer exist. These
conflicts can be linked to many factors like improper documentations,
weakening customary tenure institutions and their structures for
accountability and stewardship, manipulation of customary laws, land
grabbing and tenure insecurity.
4. FRAMEWORK FOR ASSESSING GOOD GOVERNANCE IN CUSTOMARY TENURE
A lot of work has been done in developing guidelines as to what
constitutes a good LA systems (Williamson and Ting, 2001). However, very
little has been done on developing criteria and indicators for assessing
governance in LA systems (Bell, 2007). Of all the good governance
indicators, the World Bank Governance and Doing Business Index by
Kaufmann et al. (2007), United Nations Development Programme Governance
Indicators (UNDP, 2006) and the UN Habitat Governance indicators (UNHS
and Transparency International, 2004; UNDP, 2006; UN-HABITAT, 2007) are
the most commonly used for international comparisons of state
performance and assessing governance in many projects in LA. To date,
the World Bank national indicators project and the UN Habitat Governance
indicators projects have perhaps been the most ambitious (Stewart,
2006). Since 1996, the World Bank has over the years in Governance and
Doing Business Index published good governance ratings, using several
hundred indicators addressing six key aspects connected to
accountability, political stability and rule of law, and control of
corruption (World Bank, 2006). Similarly, the United Nations Development
Programme Governance Indicators lists 33 indices of what may be broadly
considered national good governance indicators (UNDP, 2006). The UN
Habitat urban governance indicators project, on the other hand,
categorises and measures good urban governance into 26 indicators of
five categories (Stewart, 2006). These indicators assess the ways
individuals and institutions, private and public, plan and manage the
common affairs of a city. In addition, the UN Habitat Transparency
International Toolkit (2004) provides tools to support transparency in
local governance. The toolkit stresses that land information systems
have to be available with guaranteed open access. Furthermore, the FAO’s
land tenure studies provide guidelines on what the institute and its
many international collaborators have discovered are “good practices”
for a peculiar aspect of land tenure and administration (FAO, 2007). The
guidelines develop norms and guiding principles for institutions in
charge of land tenure and administration. All these indicators can be
grouped into the following governance dimensions; efficiency;
effectiveness; transparency, consistency and predictability; integrity
and accountability; subsidiary, autonomy and depoliticization; civil
engagement and public participation; equity, fairness and impartiality;
and legal security and rule of law. In the framework of assessing LA
systems from a global perspective, Burns et al. (2007) distinguish two
levels of governance assessments. In the top-level, the indicators for
the assessment should look at the policy and legal framework for LA. In
the second level, the framework recommends qualitative indicators for
assessing customary tenure and quantitative indicators for formal LA
institutions. Particularly, the qualitative indicators should address
the “legal recognition of customary rights and clarity of identity of
customary authority, boundaries of customary authorities and customary
It is evident that governance in LA can be assessed through several
governance principles and indicators. Whichever combination of
governance criteria is used for the assessment, they mutually reinforce
each other and cannot stand alone (Kaufmann et al., 2007), and they
cannot be exhaustive and each shall be disputable (Stewart, 2006; van
der Heijden, 2009). However, the goals pursued, the object of the
evaluation and the context within which it is being applied should
determine what to measure and how to measure it. Although the issues cut
across customary systems, to our knowledge they are much related to
civil society, the performance of statutory institutions and the
regulations that establish them. Particularly, attention is given to how
LA institutions can be reorganized through policy reforms, institutional
developments and use of new technologies to deal with the issues related
to bribery and corruption, inaccessibility of information, bureaucratic
processes, rule of law and conflicting legislation, but not on how
customary tenure institutions should perform in order to meet good
governance objectives in LA. This means that specific indicators need to
be developed for assessing governance in customary tenure institutions.
These indicators can be used to compare customary tenure institutions
within a country and across countries. They can also be used to develop
policies and guidelines to streamline the activities of the indigenous
From the empirical study and literature discussed above, issues
related to governance in customary land delivery revealed a number of
domains or variables which could be weaknesses or strengths of customary
land delivery processes. Specifically, the issues are related to access
and openness, participation, use of local knowledge, supremacy of custom
and usages, stewardship, ownership and control, accountability, fluidity
and flexibility of customary laws, equity, the institutional field,
policy, constitutional and legal dimensions and capacity of the key
actors of the customary tenure systems. These may be internal features
that form the core of the operations of the institutions and are
directly under their control or external features like land policies,
constitutional stipulations which influences the customary tenure
system. More importantly they give the general idea of what is important
to consider when developing a framework to assess customary tenure
institutions for land governance.
Though indicators of other qualities may be important, the study
focuses on efficiency and effectiveness, accountability, participation,
transparency and equity as essential to any complete assessment of the
customary tenure institutions. The choice of these dimensions from the
long list put up by various views on governance was based on the
following factors: 1) the dimensions selected were found to be common in
most governance literature, and touch on issues of critical importance
in customary land delivery in peri-urban areas; (2) they have adequate
bearing with governance in customary LA; and (3) to some extent, these
dimensions overlap and ensure a wider spectrum of governance issues
considered. For example, rule of law and responsiveness in customary
systems is much related to efficiency and effectiveness. Drawing from
the literature on governance and the empirical study in three customary
areas, the established links between the selected governance dimensions
and various characteristic of governance related to customary land
delivery are discussed below.
4.1 Efficiency and effectiveness
Because studies on customary land delivery are related to tenure
security, efficiency and effectiveness of the institutions to promote
tenure security for all land users are used as the main goal of the
assessment. Indicators like implementation of customary laws, measures
put in place to address tenure security, use of competent persons,
existence of a well-established information-desk, clarity of land
delivery processes; and enforcement of resolved land conflicts are
potential determinants of efficiency and effectiveness of customary land
delivery. The choice of these indicators is based on the argument that
efficiency and effectiveness require the formulation of strategies that
enable the production of results that meets the need of society
(Kaufmann et al., 2007), and the development of policies and programs
that enable delivery of high quality services and standards (FAO, 2007).
Efficient customary land delivery requires that procedures for land
allocation and dispute resolution follow due process as defined by
customary law. Customary tenure institutions need to develop new ways to
record and maintain land information that ensures improved service
delivery within reasonable time. Equally important is a well-established
information-desk that links customary authorities and land users, and is
much needed to ensure accessible land information. Procedures for land
allocation and conflict resolution should be clear and simple. When the
procedures are clear and land information is accessible, it gives less
opportunity for corruption. Effective customary land delivery ensures
that rights of all groups and stakeholders of the landholding groups are
respected and protected. Effectiveness also depends on the use of
competent persons to control every aspect of the land delivery processes
as to produce accurate work. It requires well-enforced customary laws
and regulations in land tenure and justice delivery. Effectiveness
requires that customary institutions enforce and respect community
decisions and the decisions taken to resolve land conflicts. Effective
customary delivery relies on professional advice from the statutory
institutions and other professional bodies. When customary laws are
followed and competent persons are used, the incidence of land conflicts
could be reduced, thereby improving the tenure security of all land
4.2 Transparency and accessibility
Transparency and access to information have been sighted as solutions
to the increasing incidence of bribery and corruption associated with
resource management (UN-HABITAT, 2007). Transparency is built on the
free flow of information between stakeholders (Kaufmann et al., 2007)
and enables them to uncover abuses and defend their interest (UNDP,
1997). Transparency requires that processes, institutions and
information are directly accessible to those concerned with them, and
enough information is provided to understand and monitor them. Promoting
better access to information for all stakeholders, transparency
strengthens accountability of all actors (Piotrowski and Van Ryzin,
2007). Transparency is at the entry point to participation,
accountability and equity (UN-HABITAT, 2007).
Transparency and accessibility in customary land delivery means the
institutions that have been entrusted to keep information on customary
land should be accessible to community members and other users of land
information. Inaccessibility of institutions and land information leads
to abuse of power and corruption. Therefore, information on all land
allocations and the use of land resources must be accessible to all
people, including statutory land agencies. Access to information also
depends on the availability of mechanism for recording and maintaining
land information. Thus, customary tenure institutions should put in
place mechanisms for recording and maintaining land information and
information-desks where land users can easily interact with
institutions. In addition, the procedures for acquiring land must be
clear and open to all stakeholders. This means that chiefs and land
allocation committees should not take any unilateral decision concerning
land acquisition, occupation and use of land. Decisions on how land is
allocated and used in the community must be made at meetings that are
open to all the stakeholders of the customary land. Community members
should be allowed to present their views on the decision making
processes. Furthermore, clarity of customary laws can improve
transparency. Therefore, mechanisms should be put in place to educate
the community members of the customary laws binding the use of land.
Where possible, customary laws must be coded and recorded for future
Accountability means demonstration of stewardship and is cited as
important for reducing bribery and corruption (FAO, 2007).
Accountability combines with transparency in the discourse of good
governance as they both emphasize the necessity for institutions to make
their activities open to their clients (Schultz, 2008). Included in
these dimensions are all the factors that make customary tenure
institutions accountable of their stewardship to community members,
reporting on what they have been entrusted to do, responding to
questions, explaining actions and providing evidence of their
performance (FAO, 2007). Factors like the frequency of interaction with
community members, feedbacks, record keeping and publicity of financial
statements are important to measure accountability in customary tenure
institutions. Customary authorities must report regularly on what they
have been entrusted to do by responding to questioning, explaining
actions and providing evidence of their functions. A proper accounting
system and record keeping in land delivery processes are much desired.
Specifically, the institutions must regularly publish accounts on land
sales/leasing or any allocation. They must also subject themselves to
periodic checks by making their records available for external auditing.
These measures will not only prevent corruption and abuse of power by
customary authorities who enrich themselves with community resources,
but can be seen as a basic step of commanding confidence and trust over
stewardship of resources that has been placed under their care.
4.4 Equity and fairness
Equity is one of the fundamental footings of sustainable developments
(World Commission on Environment and Development, 1987). Brown and
Corbera (2003) view equity as fairness of outcomes both now and in the
future with respect to who benefits or is included in the process of
decision-making for development action. Curry (2001) discusses equity
from two perspectives: distributional and intergenerational equity. The
former refers to the distribution of rights fairly and across the
contemporary population of interest. Distributional equity ensures that
the needs of the minority, the vulnerable in society such as women, and
children as well as the poor are catered for. In the latter, the focus
is on how rights are proportioned such that they are used effectively
and efficiently to the present and future generations. Intergenerational
equity addresses the mechanisms that ensure that resources being
utilized today can be available for use by the next generation.
A number of indicators that measures equity has been included. These
indicators are based on the concept that “all people should have the
same access to service and receive the same service standards (Kaufmann
et al., 2007; Zakout et al., 2007). Customary tenure institutions are
expected to deal fairly and impartially with community members and
settlers by providing non-discriminatory access to land, information and
justice delivery. The indicators address how the needs of all interest
groups – sub families and members constituting the land owning group –
are considered in the land allocation process and distribution of
proceeds accrued from land resources. Specifically, when compensation
has been paid to land losers, all the affected persons must be treated
fairly. In addition, customary tenure institutions must put in place
measures that ensure tenure security of women, other vulnerable groups
and future generations.
Participation enables citizens to be involved in governance through
consensus-building and engage with civil society without curbs on the
media or on freedom of expression and association (FAO, 2007).
Participation enables all individuals who are part of the
decision-making tp feel ownership of all the activities undertaken and
be responsible for it. In customary land delivery, participation should
be addressed from membership composition, procedure of selection, the
level of diversity in the representation of interest as important
determining factor of participation in customary land delivery. The
extents to which subgroups within the land owning groups, gender groups
and other stakeholders are represented in the decision-making processes
and how customary tenure institutions collaborate with professional
institutions in the land delivery process are worthy of consideration
Participation requires that all the family groups constituting the
land owning group must be represented in the various divisions of the
customary tenure institutions that take decision on the use of communal
land. Particularly, the committees in charge of land allocation and
decisions making must be instituted in such a way that they cut across
the various family groups, gender groups and settlers. Customary tenure
institutions must also allow community members to participate fully in
land governance through consensus building. In addition, professional
institutions should also be consulted when necessary to provide advice.
Participation leads to improved accountability, reduction of conflicts,
a more flexible and efficient management, increased legitimacy, and it
implies better use of place-specific knowledge etc.
Table 1 presents the final breakdown of the dimensions into
operational indicators. It describes the variables that can be measured
within the various aspects of land delivery, particularly on land
allocations, dispute resolution and decision making process.
Table 1. Framework for assessing good
governance in customary tenure institutions
- Are the procedures for land allocation and conflict
resolution clear and simple?
- Are competent people used in the land delivery process?
- Are customary laws applied in the land delivery process?
- Are there means for keeping records on land information?
- Are statutory institutions and other professionals
involved in the land delivery process?
- Does the tenure practice protect the land rights of the
poor and marginal groups (women and peasant farmers)?
- Are there mechanisms of protecting the rights of land
- How adequate are the human and financial resources?
- How responsive is the institutions to the need of the
- Are land conflicts solved timely and at reasonable
- Are there appeal mechanisms for conflict resolution?
access to information
- Are the rules governing land allocation clear?
- Is information on land delivery accessible to the
- Is information shared and exchanged with statutory
- Is there an information services/desk or customary land
- Is there any means of publicising information on
customary land ?
- Are there feed back sections to community members?
- Are the procedures for public decision-making clear?
- Is information on decision on the use of resources open
and available to the community members?
- Are there mechanisms for community members to petition
- Are there mechanisms for questioning and explaining the
ongoing activities in the community?
- How often are community members informed about the land
activities carried out?
- Are land developers given any form of evidence of
payment to cover their acquisition?
- Are there proper financial accounting system?
- How often does proceeds from allocation made public to
- Are the financial statements open for external auditing?
|Equity and fairness
- Is land distributed equally among community members?
- Is land distributed equally among men and women?
- Does the customary tenure system give uniform protection
to indigenes and settlers?
- Is land resource used appropriately to create wealth to
benefit all community members?
- Is land information equally accessible to all community
members and the general public?
- Are people given equal opportunity to express their
views during the decision-making on the use of community
- Are due compensations paid to all community members
- Are contending parties in land conflict given equal
opportunity to provide evidence to prove their case?
- What is the level of involvement of community members in
the land delivery processes?
- Are community members involved in the appointment of
- Are community members involved in the choice and use of
- How often do customary tenure institutions interact with
- What is the level of collaboration and coordination with
statutory land agencies and the local government?
This paper has outlined the general governance problems within
customary land delivery processes, with particular attention to
peri-urban areas in Ghana. The study indicates that customary tenure
institutions in peri-urban areas raise important issues of good
governance which affect the effectiveness of customary land delivery in
those areas. Whereas governance issues in statutory land delivery are
more related to the performance of institutions in charge and the laws
that establish them, the study reveals that governance in customary land
delivery are more related to abuse of power, fluidity of customary laws,
access to land and tenure insecurity, land grabbing and informal markets
and inequity in the distribution of land resources. While indicators of
other qualities may also be important, the paper highlights that
measures of efficiency and effectiveness, equity, accountability of
stewardship, participation of community members in land management
activities and decision-making, transparency and accessibility are
essential to any complete assessment of good governance in customary
tenure institutions. These five dimensions on good governance,
elaborated into several operational indicators, are interrelated and
cannot stand alone. For example, when structures that have been
sustaining transparency and participation in the customary tenure
institutions are well in place, accountability is improved. This also
leads to further efficiency and effectiveness of decision-making and
higher tenure security for all persons. Therefore, the indicators should
not be taken single-handedly but efforts should be made to touch on all
the indicators if one wants to achieve good governance in customary land
Although the study indicates that customary tenure institutions in
peri-urban areas raise important governance issues, the institutions are
built on structures that promote accountability, transparency and
accessibility. These structures ensure that customary tenure
institutions frequently report on their stewardship to community
members. These structures are in place and the broad legitimacy of
customary tenure institutions in many sub-Saharan African countries give
them an advantageous position to govern land in peri-urban areas,
thereby supporting the decentralization of land administration to the
local level. Thus, institutions for administering land in customary
areas can be built on the institutional framework of customary land
tenure. Nevertheless, the autonomous nature of the institutions has the
potential of breeding corruption and abuse of power. For these reasons,
statutory institutions could provide the necessary guidelines to
regulate the activities of the customary institutions to ensure that
they adhere to the principles of good land governance. A regulative
framework that enforces customary tenure institutions to be more
accountable to their people, especially a rule that makes them submit
their financial statements through external auditing, are much desired.
We argue, however, that if indigenous knowledge and the capacity of
customary tenure institutions could be enhanced, land governance in such
areas can be improved. Therefore, there is the need to look for
appropriate tools that can enhance indigenous knowledge and improve
local community capacities to take inventory of land tenure information.
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Mr. Anthony Arko-Adjei is currently studying at the
International Institute for Geo-information Science and Earth
Observation (ITC), Enschede and Delft University of Technology, Delft,
all in the Netherlands. His research is about analyzing the dynamics of
customary tenure systems and how to include these dynamics into the
design of land administration systems for customary areas.
Prof. Jitske de Jong is professor of Real Estate Law at the
OTB Research Institute for Housing, Urban and Mobility Studies at the
Delft University of Technology, Delft, the Netherlands.
Prof. Jaap Zevenbergen is associate professor in
Geo-information studies at the OTB Research Institute for Housing, Urban
and Mobility Studies at the Delft University of Technology, Delft, the
Netherlands, and professor of Land Administration Systems at the
International Institute for Geo-information Science and Earth
Observation (ITC), Enschede, the Netherlands.
Dr. Arbind Man Tuladhar is assistant professor in
Geo-information Science at the International Institute for
Geo-information Science and Earth Observation (ITC), Enschede, the
Netherlands and a visiting professor of Land Administration at Chang’an
University, Xi’an, China.
Mr. Anthony Arko-Adjei
International Institute for Geo-Information Science and Earth
Hengelosestraat 99, P.O. Box 6, 7500AA
Tel. + 31 (0) 53 487 4526
Fax + 31 (0) 53 487 4575
Web site: www.itc.nl