FENECIMIENTO Y LIQUIDACIÓN DE LA SOCIEDAD DE GANANCIALES

Over the last century agricultural land in southern Ghana was a crucial resource that became increasingly scarce, generating conflicts over the attribution of titles. The continuous and dramatic land disputes that emerged in the course of the twentieth century can hardly be under- stood within the framework of the existing land tenure orthodoxy. Both the understanding and the organisation of land tenure urgently need to undergo deconstructive public scrutiny. While the principal assump- tions of current land tenure legislation are grounded in the conserva- tive evocation of ‘tradition’ and ancestral rights, the actual management of land tenure is best understood with reference to interest-driven poli- tics. Before presenting ethnographic illustrations of conflicts concern- ing land, I show that the concepts of custom, ownership, and dispute are often presented in ways that tend to obfuscate rather than promote an understanding of the causes and unfolding of disputes.

Custom

Ghanaian land law – both legislation promoted by the government and its ‘ethnic’ variants promoted by chiefs in the Traditional Councils – has been conceptually and legally founded on the idea of a clear, stable set of customary rules grounded in a past unspecified both historically and geographically. Land legislation from the colonial period up to the 1992 Constitution is presented as the continuation of ancestral princi- ples and values (Aidoo 1996; Kasanga 1988; Ollennu 1962; Woodman 1996). These are said to be characterised by the beneficial effects of a hierarchical management of land. Crucial in this respect is the idea that the head of a social unit (kingdom, village, lineage, household) controls land rights for the general benefit: the chief is thus seen as

the custodian of the community’s land; the lineage head as the custo- dian of the family land; and the household head as the custodian on behalf of subordinate members. This fiction, upheld and justified by the state and chiefs as ‘custom’, has largely been a legal fabrication that, in village disputes, allows these prominent figures to preserve their privileges and contextually adapt these to twentieth century eco- nomic transformations. Although ‘custom’ is presented as the founda- tion of fair land tenure legislation, it has not generated convenient and equitable solutions at a local level. While the use of ‘custom’ claims to clarify existing titles, it produces ambiguities for two reasons. First, there have been multiple agents (the state, the Traditional Councils, in- dividual chiefs, elders) that have competed in the formulation of norms, all evoking tradition while defining it differently. Second, the legal apparatus derived from the ‘customary’ understanding of land prerogatives – transplanted in the 1992 Constitution – uses a concep- tual framework and terminology that renders its application in villages virtually impossible. The actual process of definition of property rights over land in villages is irreducible to the legal idiom: the complex, dy- namic, and multifaceted title negotiations that actually occur need to be greatly simplified, frozen, and mutilated to be squeezed within the legal conceptual schemes. Contemporary customary land tenure is a contradiction yet to be acknowledged.

Ownership

It is well established that titles over land in Ghana involve a multipli- city of parties holding rights alongside each other. Some have proposed the notion of stratified rights: according to this view, prerogatives are clearly ranked (Aidoo 1996:3; Bentsi-Enchill 1964; Kasanga 1988:30-31; Kyerematen 1971:24, 39-40, 97-123; Ollennu 1962:119). My view, how- ever, is that land claims are exercised by each actor to an extent that is determined by the outcome of confrontations, played out on the capa- city to achieve recognition and the complicity of those recognised as the rightful interpreters of land tenure, the two processes obviously moving together (cf. Chauveau 1982; Lavigne Delville et al. 2002). Rights are thus not static but continuously negotiated within structures of power: there is no party that is inherently and eternally doomed to hold a marginal right. Prerogatives are thus flexible and partial, as they are shared with other parties. The legislative and scholarly codification of traditional land tenure, however – clearly influenced by a colonial setting aimed at preserving a powerful chieftaincy (Grier 1987) – named the chiefly prerogative as ‘complete’ or ‘ultimate’ ownership, (Kyerematen 1971:24, 39-40, 97-123) or as ‘allodial’ (Kasanga 1988:30- 31; Kasanga and Kotey 2001) and ‘absolute’ (Aidoo 1996:3) title. Along-

side the chiefs’ title, the ‘usufructuary rights’, ‘freehold interest’ or ‘de- terminable title’ of community members was recognised (Aidoo 1996:3; Ollennu 1962:72). This static and codified notion of titles, how- ever, clearly contradicts the existence of a multiple, dynamic, contextual exercise of prerogatives over land and seems intended to favour the im- position of a codified, ranked, and stable set of rights. The intended aim of the land tenure orthodoxy – that is to establish a clear and inal- terable set of prerogatives over land – is far from being achieved in rur- al areas of southwestern Ghana: land prerogatives are continuously dis- puted and altered. Studies theorising an unequivocal set of land rights do not, in fact, describe the land tenure system as it is practiced in everyday life but make an effort to transform it in a direction that ne- glects derivative rights and ignores the multiplicity of prerogatives.

Dispute

In most legal studies and in chiefly discourses the causes of conflicts are downplayed. Disputes are presented as misunderstandings rather than the product of divergent interests. Some studies hold that land tenure disputes are resolved once the ‘correct’ historical precedent is unveiled and custom re-established (Bentsi-Enchill 1964: 23; Kasanga 1988: 48-53; Kyerematen 1971; Rattray 1969, first published 1929:351- 352). If a dispute emerges within a kin group, the family elders preside over the hearing. In more important confrontations the village elders or the chief may hear the dispute. The Traditional Council hears all ser- ious disputes, especially those concerning two or more chiefs. Each of these panels is said to be searching for the truth that is contained in custom and needs to be revealed. The self-legitimising idiom of tradi- tion is used by all these panels to frame land disputes’ conceptualisa- tions and solutions. At the end of an hermeneutic process that sees men, elders, chiefs, and judges in privileged, monopolistic positions, the outcome is announced (Cutolo 1999). The arbitrators address this concern by offering a strategic interpretation of the ontological status of the parties involved (Who are they? To what kinship background do they belong? What is their rank in the political-parental structure of the kingdom?) and, consequently, of their rightful prerogatives. Con- flict resolution is presented as the legitimate re-insertion within tradi- tion rather than as a decision-making process that privileges specific views and interests. Parties are expected to abide by the authoritative decisions. The judgment is presented as aiming to restore peace and harmony. Those who do not abide with the decision of the courts are presented as menacing the unity of the community. The perception of conflicts as resulting from ‘confusion’ or non-adherence to custom, however, does not silence political conflict between groups. Individuals

and groups systematically penalised by the shifting – yet traditional – interpretations of custom have voiced their concern. Land tenure ca- nons have been, to a large extent, determined by chiefs and elders. The state, besides drawing a consistent share of the land revenues, has played its part through the courts, which, however, have addressed only a relatively low number of cases. More systematic land reforms, such as the review of migrants‘ taxation attempted by Nkrumah, or the land registration attempted in 1986, failed to materialise (Ninsin 1989; Woodman 1987).