El Derecho procesal constitucional

This study in examining the trajectory of succeeding housing policies in the pre- reform, reform and post-reform eras, challenges the narrative that presents succeeding policies as arising from a consensual desire for improvement of a neutral ‗problem‘. In this respect, the ways in which issues gain attention in the policy agenda are seen as contested and not through a logical and value-free process. At junctures of decision-making, alternative issues compete for policy attention and the ultimate policy choices reflect the narrative of the dominant interests emerging from the clash of discourses (Jacobs et al, 2003). In this regard, this thesis does not purport neutrality of the state and its functionaries, nor of international organisations including the World Bank and the United Nations (UN) in the formulation of housing policies. If policy is a decision-making outcome of contested claims and not an objective response to a technical ―problem‖, then this study is about power and its

manifestation in social actions. The research goal of explaining housing policy outcomes is a study of how power is differentially applied by competing interests in the context of

compelling and obstructive conditions in framing housing problems and solutions. Embedded in this is a question of the balance of the dialectical relationship between the extenuating conditions and the actions of the interest group(s), the legitimating framework for specific policy choices and the narratives deployed in this legitimation.

Ontology

_Epistemology

Methodology

What‘s out there to know about?

What can we (hope) to know about it?

How can we go about acquiring that knowledge?

23 According to Bhaskar (1989:2) every philosophy, discourse or practical activity presumes an ontology or general account of the world in one way or another. These are realism, empiricism, pragmatism and idealism or, as conceptualised by Bryman (2001:16-18),

constructionism or constructivism and objectivism. Objectivism infers ―an ontological position that implies that social phenomena confront us as external facts that are beyond our reach or influence‖. This implies that reality or the social world as a neutral entity can exist

to the exclusion of the observer or researcher and knowledge of this reality can be independently assessed. Conversely, constructivism is the ontological position in which occurrences and their meanings are constantly being ―‗created‘ and accomplished by social actors‖ (Mikkelsen, 2005: 137; Bryman, 2001: 18). This position opposes objectivist

ontology in the underlying assumption that the observable world as the only reality is constituted by and emanates from the interaction of social actors with meanings constantly evolving from this interaction of agents.

In respect of epistemology or what constitutes valid knowledge, a number of positions allied to different ontological persuasions exist. According to Mikkelsen (ibid), the most common epistemological positions are positivism, intepretivism and critical realism. As noted

earlier, the researcher‘sontology helps to shape the epistemological position, although caution must be taken not to conflate these foundational elements: ontology is not reducible to epistemology (Hay, 2002:63). The three positions are briefly described in the next section, following which their relevance to the research questions of this thesis are discussed. The study does not intend to undertake a comparison of the merits of the different ontological and epistemological positions. However, it examines the positions most advantageous in

answering the research question.

Arguably positivism is a stance whose definition is contested, has variable slants and can be misconceived, for which reason it has been called ―a slippery and emotive term‖,

24 ―nebulous‖ and considered ―pejorative‖ (Silverman, 2006:38; 1997:13, Bryman, 2001:12).

Nonetheless, some elements of positivism are un-contested and permit its characterization. Travers (2001: 10) points to positivism‘s central assumption that ―it is possible to describe the world objectively, from a scientific vantage point‖. Positivism assumes ―patterns and regularities, causes and consequences in the social world‖ (Mikkelsen, 2005: 135). This

approach appropriates the use of natural sciences‘ research methods, particularly the

underlying deductive logic, to be applied in the study of social practices. Positivism utilizes hypothesis that can be tested through the collection and analysis of extensive empirical data for the validation of theories. The positivist approach aspires to universal laws through the generalisability, reliability and representativeness of its findings (Travers, 2001). In respect of this research, positivism implies the search for the cause of observed outcomes through evident ―hard facts‖ waiting to be discovered. A positivist approach would thus attribute the

observed outcomes of the housing policies to be independent of the actions and interactions of the actors within the housing policy arena including the World Bank, UN, the Ministry of Works and Housing, the local authorities and the communities. Additionally, the positivist approach would seek to explain the outcomes by establishing correlations between variables such as income levels of poor households, cost of urban land, and the private sector‘s financial capacity and production levels to deliver down market activities. The positivist approach is implicit in much of the housing research in developing countries, particularly in African countries (Malpezzi et al, 1985; Malpezzi and Mayo, 1987a; 1987b; Strassman and Blunt, 1994; Ikejiofor, 1997; Konadu-Agyeman, 2001; le Blanc, 2005) and is particularly dominant, albeit implicit, in housing research related to Ghana (Malpezzi, Tipple & Willis; 1989, 1990; Willis, Malpezzi, & Tipple, 1990; Tipple, Korboe & Garrod, 1997; Tipple et al, 200019; Sinai, 2001a & b; Fiadjoe, Houston & Godwin, 2001; Asabere, 2007).

25 Lawson (2003) catalogues the main arguments set out against the positivist approach to housing research based on Blaikie‘s (1993) interpretation of historical and contemporary debates. Firstly, social science is essentially different from the natural sciences in respect of the complexity of the behaviour of the subjects under study. The behaviour of human beings is conditioned by, and yet impacts upon, the environment and culture of the society they inhabit. In the same vein, society is not composed of distinct, atomised and unrelated entities available for hypothetical research but rather comprise interacting individuals affected by the social relations and material conditions leading to irregular behavioural patterns. The

irregularities arise from the changes in historical trajectories and cultural practices. Lawson stresses that ―The laws (events regularities) of Positivism cannot universally apply: patterns of behaviour can be changed by human action, which is both socially constructed, materially constrained and changes over time and space‖ (Lawson, 2003: 14). Human beings are

strategically calculating subjects capable of taking different directions in the face of the combination of specific material conditions and inherent structural relations. Consequently, positivism‘s ―experimental method to human behaviour is artificial ... and overly simple‖.

The last criticism relates to the position of the researcher in relation to the researched subject. Positivism places the researcher as an objective observer recording the self-evident patterns of behaviour, thereby denying the implicit biases inherent in the researcher which can affect the research subject.

Intepretivism on the other hand, privileges the actions and relations of actors to produce meanings and generate causes. It posits that the actions of social actors are foundational in constructing reality, making it inappropriate to adopt the methods of the natural world to explain the social world (Bryman, 2001). The actors‘ experience of meaning captured though interpretation and attribution is an important site for study in intepretivism commissioned research work by the World Bank on Ghana‘s housing sector prior to the inception of the housing sector projects that implemented the enabling reforms.

26 and explanations can be rendered by examining the interactions of social actors. To some interpretivists, all reality is subjective and multiple and cannot be objectively discovered. The researcher is required to appreciate this condition in conducting social research (Travers, 2004). However, this position is now being revised by the view that it is rather access to the material world that is mediated through communication – language and discourse (Jacobs et al, 2004). Although Schwandt (2000) elaborates the differences between interpretivism, hermeneutics and social constructivism20, it nonetheless shares a common focus on human interaction and has been conjoined by some as interpretivist-constructivist epistemology (Denzin & Lincoln, 2003).On the basis of this epistemological approach, this thesis in examining housing policy outcomes would limit itself to the interaction between the different actors – staff and consultants of World Bank and UN, local bureaucrats, political appointees, community members, and so on. The understanding of the enabling principles held by these interest groups deriving from the interactional encounters between them would be viewed as an important platform shaping the adoption of the reforms. The housing reforms would be characterised as the contest of the discourse of non- or minimalist state housing practices against the discourse of state-centrality in resolving the dire material conditions of housing in society. The outcomes would be explained by examining the ascendancy of the advocates of interventions as opposed to those of regulatory reforms. Although it has gained some utility in the European context (Clapham, 1997; Jacobs et al, 2004), the constructivist epistemology in housing research has rarely been used in developing countries and particularly for African countries (Moyo, 2005).

Somerville and Bengtsson (2002) arguing from a ―contextualised rational action‖

standpoint criticize interpretive-constructivism as suffering ―subjectivist fallacy‖ because of

its absolute disavowal of objective reality independent of human agency of any kind. They

20

The key difference that Schwandt (2000) elaborates is on the position of the researcher in relation to the researched subject – whether the researcher plays any role in the formulation of meaning in extracting the research subject‘s perspective.

27 criticize constructivism‘s relational production of reality such as ―the problem‖, ―my

interests‖ and ―solution talk‖, seen as moves in discourse, to the detriment of discourses of

―rights‖, ―duties‖, ―justice‖. They note that

If human interests are no more than moves in discourse, then why should we be concerned about social injustice at all? (Somerville & Bengtsson, 2002: 122)

Furthermore, they accuse constructivism of making substantial leaps in logic from the stance of the world being constructed to the conclusion that ―referents (such as the self) are

constructed or constituted through discourse‖. By this reasoning, discourse is constitutive as

it is only through discourse that referents are generated and not the other way round, a case of ―linguistic reductionism‖. They characterise this approach as strong constructivism, accusing

it of being foundationalist and therefore paradoxical, by construing representation to be the actual reality, a criticism endorsed by Schwandt (2000). Strong constructivists further deny the influence of material conditions and any changes to such conditions on the meanings and consequently actions of social actors (Sayer, 2000). By admitting only socially constructed reality, this epistemology is devalued in its disregard of structural factors – visible or not to the actor or researcher – and in not acknowledging the effect on the observed outcomes. Structural influences can dominate and frame actor motivations and need to be taken into account. Therefore, to examine causality without reference to underlying structural influences is a superficial approach to explaining the assertion of power. Lastly, Somerville and

Bengtsson (2002) raise issues with the constructivist epistemological position for the constraints it imposes on the researcher moving from discourse to agency.

The last epistemological position to be considered is that of realism (and the associated critical realism variant) which premises social actions within the context of structural relations and advocates the recognition of both to discover causality. Contrary to positivism and interpretive–constructivism, realism does not privilege exclusively either the meanings or empirical observations as the cause of human behaviour. According to Sayer

28 (2000:3) ―social science is neither nomothetic (that is, law-seeking) nor idiographic

(concerned with documenting the unique)‖. Whereas recourse to methods of natural science

research holds that some parts of objects can be observed empirically or fixed experimentally in order to examine and explain particular occurrences and understand their causes, the same cannot be said about the social world which is open and dynamic. Dynamism in the social world implies that it is not possible to produce generalisable and predictable behaviours and outcomes. In realism, the world comprises more than what can be observed or experienced that can be affected by subjective differences and multiple perspectives. Realism

acknowledges the influence of underlying structures, understood to be sets of internal

relations existing between material conditions and social practices. Within these relations the interaction between the necessary and contingent features of the structures imposes variable effects that make social practice unpredictable. As a result, social structures have emergent powers conditioned by complex interaction of contingent factors and that can produce peculiar outcomes. Therefore, reality is not the taken-for-granted practices but is rather layered and invisible to the observer and not easily predictable. Critical realism categorically distinguishes the ―real‖, ―actual‖, and ―empirical‖. The real is said to be ―whatever exists, be it natural or social‖ irrespective of its perceptibility to the observer. The real is also deemed

to be ―the realm of objects, their structures and powers, .... they have causal powers … and ... passive powers ‖, that engender particular trajectories of actions and generate propensities for

specific outcomes. Whereas necessary relations ensure specific outcomes, contingent

relations engender potential for particular outcomes. In this regard, the ―actual‖ refers to the

actions and outcomes when the contingent relations are activated. The ―empirical‖ is the

realm of experience of either the real or the actual (Sayer, 2000:11-12). Thus to explain social practice, realists advocate the unravelling of these deep-lying features to reveal these

29 Lawson (2003: 16), ―It must engage the critical imagination to abstract geo-historical

internal relations that form causal mechanisms operating in the context of contingently related conditions‖. Accordingly, housing is characterised as a ―complex of dynamic, underlying and interrelated social relations‖ (Lawson, 2003: 16).

Realism is not without its criticism, key among which is the accusation of its ―objectivist fallacy‖. It is claimed that it suffers ontological dualism whereby it admits that

both real and experienced world exists distinctively and separately. Furthermore, it is deemed that realism suffers from the primary problem of mis-characterization, denoted as ―category mistake‖ of agency as an object rather than a process. Thus realism is seen to ―tend to objectify what are not objects. In linguistic terms, they mistake verbs for nouns‖ (Somerville

& Bengtsson, 2002: 122).

Another critique of realism is that of incoherence between the ontological duality it espouses and the attendant analytical methods in addressing the question of structure and agency (Hay, 2002). Whilst seeking to transcend the duality of structure and agency, Hay (2002) argues that Giddens‘ structuration theory, as an example of realism, is however entrapped by its resort to an analytical dualism. The argument is based on the single

analytical focus given to the duality of structure. The error is made in the analytical approach presuming a constrained observer with a fixed viewpoint and thus unable to capture both structure and agency at the same time. In this respect, using the analogy of a coin with the structure and agency argument being the different sides, the analytical paradox is seen in the notion that the observer is hindered ―confined as we are to view the world from one side of the coin or other at any given moment‖ (Hay, 2002: 120-121). This analytical handicap is

expressed in the demand for ―methodological bracketing‖ of one aspect – such as strategic

30 This thesis focuses on the assimilation of received norms, encapsulated in the

enabling principles of housing policy, through the interpretive frames of local policy actors conditioned by context. The potential outcomes of this process are varied as a result of the differing influences which cannot be determined by observable traits. Recourse to observable evidence or the representation accorded to these practices by the policy actors cannot thus deliver the required explanations for the outcomes. By discarding the notion of an objective and independent and value-free housing problem in Ghana, the research approach adopted in this thesis discounts an objectivist ontological position for a subjectivist one. The housing reforms are outcomes generated through two mechanisms of dialectically reinforcing factors. Firstly, the interactions of various agents engaged in determining what should be considered as the housing problems and the consequent policy response can produce the observed outcomes. Agents‘ perspectives shaped through interactions are an important focus of this study as these perspectives are differentially impacted by the interpretation of the enabling principles of housing policy promoted by the UN and World Bank. Given the origination of the enabling principles within the corridors of these international agencies (see Chapter 3), the treatment of these received principles and values and their corresponding representation by policy actors is crucially important in developing an understanding of the trajectories that subsequently evolved.

Secondly, the interactions of the policy agents do not occur in a vacuum but instead emanate from and are embedded in the socio-historical context within which these

interactions are situated. Whatever actions different actors took were in part dictated by the context of the relations between them. Given the different conditions of engagement between agents from national and international institutions in the design and implementation of the enabling principles, the structural relationships between the functionaries of the World Bank and the UN on one hand and the local political, bureaucratic and low-income poor classes, on

31 the other is central to the analysis. Satterthwaite (2001: 137) indicates that the nature of international development agencies is such that they require local agencies to operationalize their programmes and their effectiveness is contingent on their local partners, especially government organisations. However, the local agents are themselves subject to a spectrum of influences not exclusively managed by the international organizations.

By acknowledging the dialectical complexity of the housing policy process and in particularly the contestable entry of the enabling principles, this study is adopting an approach that examines and interprets structural relations and actions; as Heinhelt (2005:1) observes, ―policies cannot effectively be considered separately from their related historical and locational structures and actor constellations related to them‖. On that basis, the housing

policies are subject to both structural and agential considerations. On the basis of the foregoing, this study adopts the realist epistemology.

(Critical) Realism derives from and has been situated in the long-standing debates over the influence of structure or agency in observed outcomes that have traditionally

polarised the social science community. Although this argument has not been settled one way or the other, there has been an increasing clamour against perpetuating the divide and for returning to ―the most basic of ontological principles, those concerning the relationship between the actor and the context‖ (Hay, 2002:115). The proponents and practitioners of the

―return to ontology‖ argument include Anthony Giddens, Margaret Archer (all cited in Hay,