Land is important for poor people in rural and urban areas for the security it provides. In Ghana, conflicts over access and use of land are increasing. Customary rules in the country link land ownership to social group membership. Land disputes, however, can be settled either through the law offered by state courts or within the customary system. In a situation of such legal ambiguity, what is the best means of protecting land rights? Which system do the people prefer?

Land disputes account for around 50 percent of the total court cases filed nationally. However a large number of litigants wait for up to two years for their case to be heard and many are never resolved. Constant adjournments are a frustrating part of the system as people are forced to attend the court for no purpose. The huge backlog of unheard cases, long delays and the incapacity to handle large numbers of cases has brought about a crisis in the Ghanaian courts.

Research carried out by the Institute of Development Studies and the Institute of Commonwealth Studies, UK investigated the factors that have brought people to court over land cases and their experiences of the judicial system. It questions the usual explanation that Ghanaians are too litigious. Disputes could be addressed in many of the informal or ‘traditional’ institutions as well as at state court level. However, only 37 percent of litigants surveyed had first tried to resolve their case using a ‘traditional’ process. In spite of the problems and delays, people generally had positive experiences of the state court system.

The research found that:

• There is a high demand for authoritative and enforceable remedies, which only the state can provide.
• State courts were not inappropriate or inaccessible in terms of language or other factors: most people were able to understand what was going on.
• Women and less educated people also held generally positive views of the process.
• Judges, particularly in the local Magistrate Courts, were well respected and their procedures seen as flexible and user-friendly.
• People are very reluctant to use out-of-court settlements which could affect the likely success of alternative dispute resolution (ADR) processes currently being proposed in Ghana.

As a majority of respondents felt that going to court was the best option, the researchers warn there may be no easy set of alternatives to the problem of the backlog of cases in the Ghanaian courts. New court suits are being filed at a faster rate than they are being cleared.

However, they suggest how the court experience could be improved:

• State courts need more staff and resources to deal with demand, particularly at the local levels.
• ADR systems can solve land disputes but they should be state supported and monitored: the Commission for Human Rights and Administrative Justice operating at the district level is a good example of a state-supported ADR system in Ghana.
• Administrative reforms’ such as more realistic scheduling of cases and more use of legal remedies for striking out cases, are essential.
• The Magistrate Courts at district level should be the main focus of any reform efforts and extra resources as they can offer a flexible, accessible and effective system.

Source(s):
‘State courts and the regulation of land disputes in Ghana: the litigants’ perspective’, Institute of Development Studies, IDS Working Paper #241, by Richard Crook, February 2005 Full document.
Further details about this research project 'The law, legal institutions and the protection of land rights in Ghana and Cote d'Ivoire: developing a more effective and equitable system' Full document.

Funded by: UK Department for International Development - R7993

id21 Research Highlight: 16 September 2005

Further Information:
Richard Crook
Institute of Commonwealth Studies
University of London
28 Russell Square
London WC1B 5DS, UK

Tel: +44 (0)20 7862 8844
Fax: +44 (0)20 7862 8820
Contact the contributor: richard.crook@sas.ac.uk

Institute of Development Studies, UK

Institute of Commonwealth Studies, University of London

Other related links:
'Making law matter'

'Traditional justice institutions. Can they be more effective?'

'Living outside the law? Regulating informal and customary land delivery'

'Articles on law and land rights from the South African Journal on Human Rights'