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ANNUAL CONFERENCE ON LAND AND POVERTY

LAND REGISTRATION USAGE THEORY: A CASE STUDY IN GHANA MICHAEL BARRY, LANI ROUX AND EPHRAIM DANSO

Geomatics Engineering, University of Calgary, Canada mbarry@ucalgary.ca

Paper prepared for presentation at the “ANNUAL WORLD BANK CONFERENCE ON LAND AND POVERTY”

Copyright 2012 by author(s). All rights reserved. Readers may make verbatim copies of this document for non-commercial purposes by any means, provided that this copyright notice appears on all such copies.

LAND REGISTRATION USAGE THEORY: A CASE STUDY IN GHANA

MICHAEL BARRY, LANI ROUX AND EPHRAIM DANSO

Geomatics Engineering, University of Calgary, Canada mbarry@ucalgary.ca

Keywords: land registration effectiveness, land tenure security, social change theory, ABSTRACT

The paper presents a three stage theory to examine why and how people register or choose not to register

their land. It addresses a gap in micro level theory; most titling programmes are grounded in macro level

theory. The first part of the theory incorporates a social systems examination of strategies to secure

tenure. It examines the manifestations of social change; the social, political, geographic, historical and

institutional factors, how these influence an individual to choose particular strategies to secure their land,

and how these strategies affect those around them. The second part examines registration usage strategies

in the context of an individual’s perceptions of usefulness, accessibility, social norms and control factors.

The third part expands this into an examination of agency performance, the level of power a person has in

choosing a strategy, and the level of trust a person has in agents and agencies and local level leadership.

We test the theory in a case study of land tenure arrangements in Bortianor on the outskirts of Accra. The

case suggests that the first two parts may be apply in the general sense, and that the third part may apply

once all people have access to registration.

INTRODUCTION

We present theory to guide grassroots level studies which set out to explain and predict why and how

landholders register or do not register transactions in land. The theory may also apply to land tenure

information systems that have been proposed as alternatives to registration in recent years, such as the

Social Tenure Domain Model, the Talking Titler Model and Open Titler. Following this, we illustrate

how the theory may be tested and developed, using parts of a case study we are conducting on how people

secure their land interests in Bortianor on the outskirts of Accra, Ghana.

Much of the existing theoretical work on land titling and registration is at the macro level, developed from

a political-economic and policy perspective. Often registration effectiveness is a minor component of

these works. There is a gap in studies that examine land registration usage as the core phenomenon of

interest at the micro level; studies that explain and predict how and why people choose to use, or not use,

registration or an alternative land tenure information system (alternative LTIS).

A micro level examination of local situations should be an important focus in examining land registration

effectiveness. In ten case studies in post-apartheid South Africa, even when the factors critical to a

successful land registration system are apparently in place and registration appears to be suited to the

local circumstances, landholders may not use land registration to effect transactions after first registration

(Barry 1999, 2005; Barry and Roux 2012, Roux in litt.). The overarching objective is to improve justice

and fairness in land tenure administration. We adapt theories developed in social psychology, sociology

and management information systems to land tenure administration problems.

LAND REGISTRATION USAGE THEORY

The theory for examining land registration usage draws on systems theory, social change theory, the

Theory of Planned Behaviour (TPB) and its application in information systems (IS), and our own case

studies. We express it in three parts: (1) a general causal process system and the effects of social change

and local politics when tenure transformation occurs, (2) adaptation of TPB and the Technology

Acceptance Model (TAM), and (3) specific constructs and relationships that may explain and predict land

registration usage.

In concept, a three stage approach is proposed to test the land registration usage theories in a case study,

although we do not advocate applying it as a rigid hierarchy. The first stage establishes how people secure

tenure and use registration within the context of local and regional politics, social change and social

inequalities (see Figure 1). Following this, the situation is examined to see if the broad adaptation of TPB

and TAM are applicable (Figure 2). Lastly, the situation is examined in the context of the constructs and

relationships portrayed in Figure 3.

THE GENERAL CAUSAL-PROCESS SYSTEM

We express the main part of the theory in causal process form, at the same time incorporating the

systemic nature of development interventions (Roux and Barry 2011b, Barry 2005, Barry and Fourie

2002a, Barry and Fourie 2002b, Corbin and Strauss1990). In brief, registration usage behaviour is the

core phenomenon being examined. As per Figure 1, the six main components of the theory are context,

general causal factors, registration usage strategies, consequences, feedback systems and the general

environment. A system of causal factors motivates people to choose a particular strategy relating to land

registration, and the execution of that strategy has a number of outcomes or consequences. There are two

types of causal factors, general factors and factors specific to the local context. General causal factors are

likely to explain a significant proportion of registration usage behaviour in most cases. Context specific

factors are part of substantive level theory; they may be valid only for a particular case under

examination, or perhaps may apply more widely in particular types of case study. The distinction,

however, is conceptual and for theory development and testing purposes. In reality, separating general

and context specific factors may be difficult (Barry and Roux 2012).

The system is dynamic, subject to continual change. The feedback loops in Figure 1 represent change that

occurs in the system of causal factors: (1) as a consequence of a person or group completing a particular

strategy, and (2) intervening conditions that are triggered by a person or group engaged in implementing a

chosen strategy. A third form of intervening conditions, not represented as feedback loops in Figure 1,

occur independently of the registration process. These are a consequence of changes occurring in the

broader external environment, and changes occurring in the causal factor system, independently of events

related to registration usage.

Figure 1 Land Registration Usage Causal Process Model

Lastly, there are three main strategies persons acquiring rights in land can adopt: (1) they register every

transaction necessary or possible, (2) they register some transactions and not others – the choice is

motivated by the system of causal factors, alternative strategies available to them, and context at the time,

and (3) they will not register at all, at least given their current thinking or capabilities. They may,

however, change their choice in future (Barry 2006, Roux and Barry 2011b).

We caution that while the core phenomenon is registration usage, in some case studies it is advisable to

broaden the focus and examine land tenure security as the core phenomenon, with land registration one of

the phenomena being examined. The discussion on local politics and social change and the Bortianor case

study below reveal why this may be advisable.

LOCAL POLITICS AND SOCIAL CHANGE

The reasons why people fail to register transactions after first registration are many and multifaceted.

Catch phrase clichés explaining development intervention failures such as lack of capacity, complexity,

neo-liberal economic policies, and emotional attachments to land may well be relevant to titling project

failures, but many observers ignore local, micro level factors. These include how regional and local

political power is contested, social inequality/differentiation and class formation, and the manifestations

of social change in local politics (Walker 2008, Tettey et al 2008, Barry 2010). Struggles for land are

about social and political relationships; rules to access, use and control resources are continually made

and remade through social action (Ubink 2007).

Expanding on the discussion on feedback and intervening conditions above, there is an internal system

(internal dialectic - Comaroff 1982) and external system with which individuals and groups in the internal

system interact (a dialectic of articulation- Comaroff 1982). The internal system influences and is

influenced by the external system. Thus the interplay between micro and macro should to be traced

together as should the action/interaction that flows from this interplay (Barry 1999). As Comaroff (1982)

notes, very different observable properties may emerge in spatially proximate communities subject to the

same internal cultural and political rules and external influences, due to the vertical interactions

(individuals, groups and the whole community and outside) and horizontal interactions (internal to the

social group and perhaps neighbouring social groups) that occur within and between the social group,

family unit and individuals, neighbouring social groups, and forces outside of the social group.

Social change involves conflict and competition, especially if land is scarce and individuals are able to

compete for it (Fourie 1993, Barry 1999). If, as part of land tenure transformation, the land allocation

system creates classes of winners, marginalised, and hopefuls on the fringe of winning or losing land,

then intense conflict and competition can be expected (Barry 2010). Competition for power and resources

may be intense, and this is likely to be manifested in coalition formation and division. Powerful

individuals may form coalitions within the social group and cultivate networks with powerful individuals

outside the community to consolidate power. Less powerful individuals may align with a coalition for

survival purposes. Some coalitions may form around longstanding structures such as extended family or

kinship group (Barry 2010). Other coalitions may be shifting and temporary; they form and dissolve

around particular issues (Barry 2010). Individuals may align themselves with more than one coalition

(e.g. youth, women, family), and these coalitions may take opposing positions over particular events.

Local, internal, rules for tenure and administration may be agreed upon, but these change over time as

they are manipulated as part of the competition for power and land. Opportunists or “entrepreneurs” can

be expected to manipulate the rules for their own benefit; to grab land or power, for example (Fourie

1993, Barry 2010, Barry 2006, Barry 1999).

THEORY OF PLANNED BEHAVIOUR

Figure 2 represents the general system of constructs that cause an individual to choose one of the three

strategies portrayed in Figure 1. It builds on earlier theory (Barry 2005, 1999) based on the Theory of

Planned Behaviour (TPB) and its more parsimonious cousin, the Theory of Reasoned Action (TRA)

(Fishbein and Ajzen 2010, Ajzen 1991). It also draws on augmented versions of the IS usage prediction

theory, the Technology Acceptance Model (TAM), which is based on TRA. Augmented versions of TAM

are based on TPB (Taylor and Todd 1995, Mathieson 1991, Davis et al 1989). Many consider both TPB

and TAM to be among the most influential theories in their respective disciplines. They have been tested

extensively, and the more than 2000 academic journal citations on each of them bears testimony to their

robustness (Fishbein and Ajzen 2010, Venkatesh and Davis 2000, Lee et al 2003, Bradley 2009, Wu and

Lederer 2009, Furneaux and Wade 2009, Lee et al 2003).

TPB critics argue that its predictive and explanatory power is insufficient for many applications, it is too

Western-culture centric, and too rational; criticism which Fishbein and Ajzen dismiss (Fishbein and Ajzen

2010). TAM too has strident critics. Whereas parsimony is considered a desirable attribute of theory, what

many consider a strongpoint of TAM, critics argue that TAM is too simplistic in complex situations. It

ignores social structure, and a number of studies confirming the primary constructs are unreliable

(Benbasat and Barki 2007, Lee et al 2003). Importantly for land registration usage studies, these theories

can explain a significant proportion of what causes people to perform a particular behaviour, but not all of

it (Fishbein and Ajzen 2010). The four main constructs in augmented versions of TAM, usefulness, ease

of use, social norms and control factors and how scientists have applied them in IS studies can inform

land registration usage studies. However, addressing the above criticisms, we have argued a social

systems approach and cautioned against too narrow a focus. We have found qualitative methods of

enquiry combined with a nuanced analytical approach to be appropriate. Most TAM (and therefore TPB)

based studies in information systems research are quantitative and narrowly focussed. This approach may

well be suited to some land administration studies, but it is unsuited to the situations we have been

examining (Barry 2005).

Figure 2 Theory of Planned Behaviour and Augmented Technology Acceptance Model

In brief, TPB is a causal-process theory to predict if an individual will perform a particular behaviour (e.g.

register a land transaction) as per Figure 2. The constructs behavioural intention and perceived

behavioural controls are antecedents of behaviour. If it can be established that a person has a strong

intention to perform the behaviour while having a comprehensive, realistic understanding of potential

control factors that might facilitate or prevent them from performing it, then we may predict with

reasonable probability that they will perform the behaviour. If we cannot measure intention directly (e.g.

“I will/won’t register”), then we need to estimate intention by measuring variables that will provide us

with estimates for the constructs, attitudes, subjective norms and perceived behavioural controls. The last

mentioned is an antecedent to both intention and behaviour (Fishbein and Ajzen 2010, Ajzen 1991).

People form an intention to perform or not perform a particular behaviour according to their attitude to

performing it. Attitudes may be positive, negative or indifferent. For example, the statement “I believe

registering my land will yield a better outcome for me than the alternative strategies for securing tenure

available to me” indicates they believe registration is useful and they have a positive attitude to

registration based on an evaluation of a number of different strategic options. Ignoring subjective norms

and perceived behavioural controls for the moment, the positive attitude suggests they intend to register.

Beliefs about a particular behaviour are only useful, however, if they are measured in a manner which can

be interpreted as an indication of attitude. These are based on an evaluation of perceived financial, social

and emotional costs, risks and benefits. Adapting TAM, individuals form this attitude based on their

beliefs about registration usefulness and accessibility (ease-of-use in TAM) (Davis 1989). The second

antecedent of behavioural intention is the individual’s perception of social norms, the social pressure to

perform or not perform the behaviour (e.g. from family, peers and powerful individuals), and, if they are

able to perform it of their own volition, their motivation to comply with those norms. The person

evaluates the social risks and benefits of the possible outcomes if they perform the behaviour. Added to

this is a person’s evaluation of their own ethical norms and their motivation to adhere to them. Beliefs

about norms are based on perceptions of what others think and perceptions about what others actually do.

As the Bortianor case exemplifies, perceptions about what others actually do or are likely to do includes

perceptions about whether other actors will adhere to social norms or attempt to manipulate them. Lastly,

a person may perceive that control factors may facilitate or prevent them from performing the behaviour.

Control factors may compel people into choosing a particular strategy that they might otherwise avoid

(Fishbein and Ajzen 2010, Ajzen 1991, Taylor and Todd 1995, Barry 2005). Perceptions of behavioural

controls are likely to be formed upon a person’s evaluation of the opportunities and resources available to

them (e.g. finance, time, skills) to perform the behaviour and if they have the power to perform it. For

example, an individual may wish to register a parcel of land allocated to them under a customary tenure

system and sell it off. However, they may believe that they lack the power and position in the social

hierarchy to actuate this desire. Notwithstanding a positive attitude to registering their land, they will

form an intention not to register.

As per the discussion on change above, power facilitating conditions may change. In one case study, a

community based administration group allegedly coerced individuals to comply with formal land

administration law (at the risk of burning down their house!) at a particular time, whereas earlier they

ignored (perhaps encouraged) strategies that contravened those same laws (Barry 1999).

TPB and augmented versions of TAM serve as a framework for examining land administration tools such

as land registration and cadastral boundaries. We have used it as a framework for explaining behaviour

rather than predicting registration usage, and as a guide for structuring open ended and semi-structured

interviews. We have found that measuring actual patterns of behaviour relating to structures and process

that are similar to registration (e.g. occupation permit systems, GIS to facilitate informal settlement

upgrades) to be significant. I.e. we should measure what people believe about using those systems, and

how they actually use those systems. In changing situations (e.g. informal settlement upgrades) these

patterns are likely to be heterogeneous due to the manifestations of social change (Barry 2005, Barry

1999, Roux in litt).

REGISTRATION USAGE STRATEGY THEORY

As the third part of the theory, we draw on TPB and the discussion on local politics and social change in

framing a causal process theory for land registration usage.

In Figure 3, an individual’s knowledge and understanding of the land tenure system, the different options

for accessing land and securing tenure, and all the factors that influence a person in choosing a

registration usage strategy inform their decision making. It is a function of formal training and education

in land ownership interests and obligations, experience of registering land or using a tenure information

system similar to registration (e.g. occupation permit registers). Important is knowledge gained from

personal experience and observing or learning about the experiences of others in conflicts over land, their

causes and how they are resolved, and the consequences of others adopting particular registration usage

strategies.

If we remove social norms and control factors, the two primary factors that motivate an individual to

register, or not, are (1) usefulness, and (2) accessibility, and they are interrelated. I.e. perceptions of

accessibility influence perceptions of usefulness and visa versa. An individual’s evaluation of registration

usefulness may be driven by the tenure form that they desire (e.g. the individual, group or family owns

the land), whether they want to be able to trade their land in future, the form of the registration system

itself and the benefits it may supply, the benefits of using registration versus alternative strategies to

secure their land, and the level of risk that they are prepared to assume in adopting a particular strategy.

Accessibility itself is a function of three antecedents, (1) ease of access, (2) ease of use, and (3) the

resources necessary to register a transaction. Ease of access is associated with the opportunities available

to register, such as the ease with which an administration agent (e.g. lawyer, private registration agency)

or government land registry may be accessed. Secondly, the registration process should be easy and

worth the time and effort a person has to invest in it (e.g. few trips to the agent, simple and easy to use

forms and processes, low risks of the documents being rejected). Thirdly, registration should be

affordable and provide what is perceived to be value for money, time and the effort involved in

registering. To state the obvious, if parties to a transaction cannot afford to register it, then they are

unlikely to do so - unless there are other support mechanisms enabling them to do so (Roux and Barry

2011a, Lemanski 2010, Barry 1999).

Figure 3 Land Registration Usage Strategy Theory

We briefly outline the remaining general causal factors. The form of the registration system, discussed in

more detail below, influences usefulness, accessibility and may be a form of control factor. As per Figure

3 (some relationship arrows have been omitted for simplicity sake), other general factors that are causal to

accessibility and control factors are:

Agency performance, e.g. how long it takes to register, and if the registration processes and

documents are complete and accurate.

Agency trust is related to agency performance. Is registration going to deliver what it is supposed

to deliver? Are the documents likely to be correct and defendable in the event of a challenge? Is

corruption and/or poor governance so pervasive in the system that people on the ground may

actively seek to avoid registering?

Individual behaviour and trust and leadership behaviour and trust are similar, but we would

measure them separately. Rather than perceptions about an entire agency, are individual agents

(officials, judges, lawyers surveyors, realtors, community leaders, politicians, family members)

perceived to be trustworthy and does secondary evidence (e.g. newspaper articles) indicate they

are trustworthy? Are community leaders to be trusted to perform their fiduciary duties, or will

they act in their own interests and enrich themselves or a particular faction at the expense of their

constituency? And, if an agent is not to be trusted, are there strategies available to circumvent this

agent?

Membership or affiliation with a particular group influences accessibility, social norms and

control factors, as per the discussion on social change theory above. Related to membership is the

level of trust (or suspicion) people have in other members of their group and people affiliated

with other groups. For example, people may enter into an informal transaction between members

of their own family or group, because they feel they can trust them. They are unlikely to do so

with an outsider or member of another group, because they feel the need for an external agent

(e.g. the state) to provide security (Roux and Barry 2011b).

Control factors are split into systems that enable registration and systems that impede registration. Factors

that may impede and actually prevent an individual choosing to register include power facilitating

conditions and resource facilitating conditions, discussed above. Enabling systems assist people who lack

the resources or power to register their land and can only do so with outside support. Examples are

subsidies provided as part of a social housing or land titling programme, a formal housing subsidy scheme

provided by an employer, informal employer or family sponsorships, and land professionals providing

free services serve as examples (e.g. Lemanski 2010). Related to this are access to credit systems (e.g.

micro-lending systems) where the repayment terms are affordable, which can assist people in the

registration process and provide emergency finance for those who are placed in financial distress due to a

major medical expense or a death in the family.

Conversely, impediments hinder registration. A person may consider registration to be useful and would

register a transaction if something did not impede them from doing so within the time they need to

complete the transaction. Local politics and social change dynamics may result in a person lacking the

power to register. Legal impediments may include providing the documentary evidence proving that the

seller actually has the right to sell and complying with procedures that have to be completed before a

transaction may be registered, such as the need to clear land taxes and other municipal debt. If parties to

the transaction consider these impediments too onerous given their current circumstances, they may

transfer informally even if they consider registration to be the ideal method of executing the transaction.

In analysing interviews, we should also take into account that a person’s personal circumstances may

change, and the change may be sudden. A landholder forced into a distress sale (e.g. a family emergency

or funeral, the need to pay off a debt to a money lender), for example, may transfer off register. Ideally

both buyer and seller would choose to register the transaction, and they may be fully aware of the

consequences of failing to register, but they are willing to assume the risks of an informal transaction in

order to get the sale through quickly.

The form of the registration system influences accessibility, usefulness, social norms and control factors.

A jurisdiction’s laws assign varying levels of freedom to land holders in choosing to register or not

register a land transaction. Registration form may emerge from a system of state institutions (e.g. land

registry, land taxation institutions, municipalities), private institutions (e.g. banks, lawyers, title insurance

companies) and the laws and regulations related to registration. The extent of the state’s role in land

registration is a major contributor to registration form. At one end of the continuum, in a registration

system backed up by laws which compel registration of transactions involving land rights and interests,

people are likely to register these entities if they wish to stay within the law. Even then, some landholders

may choose not to register. At the other extreme are forms of deeds registration or private conveyancing,

where the state and/or private institutions merely administers a library of documents relating to interests

in land and the state assumes no responsibility for private land tenure security or for the correctness of

documents in the register. In this latter system, landholders may choose not to register land transactions

without any legal ramifications.

A range of registration forms may be observable between these two poles, which may emerge from the

interactions between law, policy and the actions of institutions other than the registry. In some

jurisdictions, for example, the courts will not recognise a claim to land unless it is registered, even though

the law does not explicitly compel registration. As mentioned above, financial institutions may insist on a

clean title before they issue a mortgage or similar instrument. Thus, in the same jurisdiction a compulsory

form may emerge for segments of landholders who are motivated to mortgage their land, and a different

form may emerge for those who are not motivated to do so at a particular time. The actions of land

taxation institutions and municipalities also influence registration form. For example, a transfer of land

may not be registered unless land taxes and/or municipal charges have been settled (e.g. South Africa), or

a municipality may not approve a building plan unless the current ownership has been properly

formalised (e.g. Somaliland).

BORTIANOR CASE

We apply the theory to components the Bortianor case study, a customary community some 13 km west

of Accra. As with many other peri-urban areas in Ghana, there is increasing pressure on the land. Much of

Bortianor’s arable land has been sold to strangers, resulting in a loss of livelihood for people who

expected to farm and, being poorly educated, have little hope of securing a livelihood over which they

have similar control. As per the social change discussion above, competition over land is manifested in

conflict, some people in positions of power and stewardship have engaged in land grabbing, and they

have exploited and manipulated the traditional rules for personal gain.

The case study examined how people secure their land, rather than a narrow focus on registration (Danso

in litt). We first address context; the history of Bortianor and general patterns of land conflict in urban and

peri-urban areas in Ghana, and manifestations of social change that have emerged in Bortianor as per

figure 1. We then examine the constructs in Figure 3 and how patterns related to them emerged in the

case.

In this discussion indigenes are direct descendents of the main families in the customary lineage, whereas

strangers may be new migrants or descendents of people who arrived in the area a few generations back.

Bortianor is a Ga community, west of Accra’s rapidly expanding urban edge. One official involved in the

2010 census estimated the population to be 12000 (official figures had not been published) (Interview 14-

2011). Traditionally, fishing and agriculture have been the primary livelihood activities in what was a

rural community, but times have changed. We interviewed people who claimed to be fishermen, farmers,

commercial drivers (taxis, trucks, buses), petty or subsistence level traders, fish mongers, construction

workers, students, surveyors, government workers (insurance services), local government officials, and

small businessmen.

Bortianor is a sub-stool under the Jamestown stool, which in turn falls under the Ga paramount stool.

Most of the land is controlled by 13 main families. Unclaimed “empty” land is administered directly by

the stool.

LAND CONFLICTS IN URBAN AND PERI-URBAN AREAS IN GHANA

Land related conflicts are rife in Ghana and up to half the cases before the courts at a particular time may

be land related (Crook 2005). These conflicts are manifested in indiscriminate grabbing and sale of stool

and family lands to strangers and commercial entities by traditional leaders (e.g. chiefs, family heads)

who often breach their fiduciary obligations. Proceeds from these sales seldom flow to the allodial

owners, the customary lineage group (indigenes) (Owusu 2008, Owusu and Agyei 2007, Ubink 2007,

Gough and Yankson 2000). Moreover, traditional authorities sell the same piece of land to multiple

purchasers. These transactions are seldom documented and consequently a potential buyer cannot check if

the land has been sold to someone else (Arko-Adjei 2009, Gough and Yankson 2000). Tied to land

conflicts are chieftaincy disputes over who should inherit the stool after the reigning chief dies. A further

problem is the government expropriating land without paying compensation (Kasanga and Kotey 2001).

If it is left vacant, the customary group in whom it vested originally reclaims it. Opportunistic traditional

authorities may also sell this state land to strangers who are unaware that it is state land (Amanor 2006).

People have resorted to hiring land guards to protect their land interests and to grab land. The land guards

have been known to use intimidation, attack people, violently drive indigenes off their land, and commit

murder (Owusu 2008, Tettey et al 2008).

These phenomena can be attributed to factors that underlie many urban and peri-urban land problems in

Ghana, and are to be expected in terms of the social change theory described above. Contributory factors

include urban expansion, population growth, urbanization, commodification and commercialization of

land, customary leadership disputes, and rural – urban migration (Gough and Yankson 2011, Tettey et al

2008, Aryeetey et al 2007). For many, customary lands have lost their traditional social, cultural and

spiritual significance. For them land may be individualised and alienated (Owusu 2008). For others it

should remain in the customary lineage. Thus, social norms related to land tenure are changing, contested,

and heterogeneous.

CASE STUDY DESCRIPTION

To date, the study has involved a set of 10 interviews in 2009 and 5 months of field work in 2011

involving 64 interviews and group discussions. Participants included traditional leaders and people who

held prominent positions in the Bortianor customary administration and social hierarchy (10 interviews),

outside agents including senior land officials, lawyers, policemen, land surveyors and politicians (22

interviews) and 32 individual interviews and group discussion sessions in the field (28 groups of

indigenes, 4 groups of strangers) in Bortianor. We estimate 87 people participated in the 32 group

discussions in the field, but this is not exact as there were comings and goings during the discussions and

we have not counted people who remained silent. Silence, we note, does not necessarily mean that they

did not exert influence over proceedings and the responses provided to the interviewers.

CONTESTED HISTORY AND CONTESTED LEADERSHIP

As per Article 267 of the Constitution, Act 20 of 1992, Bortianor is administered as a stool under

customary law. Furthermore, Article 36(8) stipulates, “managers of public, stool, skin and family lands

are fiduciaries charged with the obligation to discharge their functions for the benefit respectively of the

people of Ghana, of the stool, skin, or family concerned and are accountable as fiduciaries in this regard”.

The chief holds the highest position in the community. He manages community affairs together with a

council of elders, and he has the strongest political power, provided he acts in the best interest of his

community. A chief may be destooled if he acts contrary to the best interests of the customary group. The

chief and designated elders sign indentures - title deeds prepared by lawyers that alienate land to strangers

on a long term lease - for them to be accepted for registration at the Lands Commission in Accra. If there

is a dispute over chieftaincy or the chief dies, by custom the Dsaasetse (king maker) becomes acting

chief.

In the local government system, Bortianor is represented by an elected municipal councillor in the Ga

South Municipality. The municipality is responsible for land use planning and providing municipal

services.

The Bortianor stool is contested by two families, the Solowe and Ofolisorlo families, based on different

versions of the oral tradition. Nii Ogbaame Ankonam I, a Solowe, was enstooled in 1993. After his

enstoolment, a faction of elders supposedly destooled him (SFO 2003). Nii Akotey IV was installed as

Dsaasetse on 25 August 1994. Nii Kwei Arku V has contested the chieftaincy since 1998, claiming that as

an Ofolisorlo he is the rightful chief. As a consequence of the dispute, the Dsaasetse claims that he is the

acting chief.

Very briefly, the Solowe family narrative is that Bortianor was settled in the 17th century by four siblings.

One of them, Nii Kometey, a Solowe, became the chief. He created the town shrine (gbatsu) and settled

close to it. Kometey permitted Ofolisorlo to settle, and he later married Kometey’s only daughter. This is

how the Ofolisorlo family lineage started in Bortianor. Other families were permitted to move into the

area over time. According to this narrative, only Solowes should be royals and priests; all other family

units have no claim to the stool or the priesthood. The spiritual shrine (gbatsu) in the Solowe family’s

compound symbolises this claim (Interviews 21, 41, 61).

The Ofolisorlo family narrative is that Bortianor was not an empty, unclaimed land when Nii Kometey

settled there. Ofoli (Chief and merchant) appointed Kometey (Solowe), a farmer, to stay close to the

shrine (Gbatsu) and perform priestly duties in his absence. This explains why the shrine is in the Solowe

compound. In terms of this narrative, the Solowe lineage inherits the priesthood, not the chieftaincy. The

Ofolisorlo lineage inherits the chieftaincy (Interviews 13, 29, 57).

A third narrative was that Bortianor was founded by Nii Kometey, and he allocated a portion to Ofoli. In

the 1970’s there were no suitable Solowe heirs. Nii Kwei Arku I, an Ofolisorlo, was enstooled

purportedly because he was educated. Nii Kwei Arku I’s death resulted in conflict between the main

family units (Interviews 21, 35, 41-2011).

ACCESS TO LAND

Tradition holds that an indigene may acquire land for residential and farming purposes by applying to

their family head if it is family land. Unoccupied, virgin land, be it stool land or family land is available

for clearing and cultivation. That land is then passed on through the farmer’s direct descendents. Family

land is not registered, and it would be difficult to register it as this requires the consent of the family head,

and then the chief and stool elders have to approve it and sign the indenture (Interviews 8, 40, 61). One

group of indigenes from four different families provided an opposing view as they indicated that their

family land was registered. However, a check with a registry official indicated it remains unregistered

(Interviews 1, 3, 22, 43).

If a stranger wishes to acquire land, they approach a family head if it is family land or the chief if it is

stool land. The family head approves the process. Members of the Land Management Committee, a stool

administration institution, inspect the site, a surveyor surveys it and prepares a plan, a lawyer prepares an

indenture which the chief and elders sign, and the long term lease may then be registered at the Lands

Commission.

Thus an indigene has a birth right to land, but they have little statutory protection for their landholdings

other than the Constitutional stipulation that traditional leaders act in their best interests. In contrast a

stranger has a registered document which, if prepared correctly, is defendable in court.

Due to the contested chieftancy, we were shown indentures that had been signed by three different

people; Nii Ogbaame I (Interviews 8, 61), Nii Kwei Arku V (Interview 35) and the Dsaasetse (Interview

34). None of these had been registered as the Lands Commission in Accra suspended all registrations in

Bortianor until the chieftaincy dispute is resolved (Interviews 1, 3, 7, 9, 22, 26).

MANIPULATION OF THE CUSTOMARY RULES AND LAND SALES

Longstanding tradition holds that customary lineage members hold the land allodially as a group.

Customary leaders administer it for the group in trust, as formalised in the Constitution Article 36(8).

There are allegations that the Dsaasetse in collaboration with a group of elders, in his capacity as acting

chief and perhaps prior to him becoming acting chief, disposed of large proportions of Bortianor land

fraudulently. Court documents and official letters indicate he sold land to companies and people with

whom he was connected without following due process. A striking example is the “palace” case where

communal land was used to build a palatial house for the “chief” (Case L 551/2000) and 1,570.67 acres

was sold to Alrotech and a government housing organization, Social Security and National Insurance

Trust (SSNIIT) (Case L283/2003, Case BL 622/2004). The Dsaasetse was a founding director of

Alrotech, and the company had not yet been registered when the 1570.67 acre transaction was registered.

The value of these transactions was estimated at 10.5 billion cedis (±US $1.3 million) (SFO 2003).

Informants in the field handed us documents relating to a total of seven court cases involving Alrotech

between 2000 and 2010, correspondence between the Serious Frauds Office and other government

agencies, and two other land fraud related case documents. The two “other” cases were struck off the roll

because witnesses failed to turn up.

Consequently, people on the ground, especially farmers and those wanting to farm, have been left

landless, or with far less land than they used to have. Their land has been sold off underneath them

without their knowledge or it has been grabbed with the assistance of land guards. Strangers who had

bought land, or the people who sold it to them, use guards to protect their interests. Land guards were also

hired to grab land. Some respondents revealed they were fortunate to have strong family coalitions who

would answer a call to arms to confront and fight off groups of intruders who had attempted to grab their

land by force. One group of people alleged that the police had assisted land guards at times. Interviews

indicated that there had been at least two murder cases related to land disputes. Vulnerable families lost

their farms and even well organised family groups claimed to have lost much of their land (Interviews 14,

19, 33, 40, 60 - 2011). Some groups told how complete strangers had walked into their residential area

and claimed their land and houses. One person said he feared being attacked if he attempted to work his

agricultural fields away from his house (Interviews 8, 11, 32).

Apart from the large portions of land that were sold off as part of the Alrotech transactions, family heads

have also sold off large portions of family holdings. We speculate that part of this pattern of selling off

family lands can be attributed to a fear that if they did not sell it, it would be grabbed anyway (Interviews

14, 34,38).

APPLICATION OF GENERAL CAUSAL FACTOR THEORY

Thus aspects of the social change theory described above are confirmed in Bortianor. We now examine

the theoretical form in Figure 3 and how it may be applied in Bortianor. We use a hypothesis testing and

validation approach to case study method (Barry 1999, Roux and Barry 2012). We state hypotheses

related to the constructs and then argue how strongly they have been validated.

REGISTRATION USEFULNESS

Two hypotheses relating to registration usefulness emerged.

H1 Registration is useful in providing tenure security, but it is of little use on its own. It is one of a range

of structures and processes needed to defend one’s land. These include the building of a permanent

structure to monument a claim to the land, having the physical force to defend land, continual checking

and monitoring of agricultural land, immediately demolishing structures that land grabbers construct,

and the knowledge of neighbours and family about longstanding occupation and the positions of

boundary markers (stones) to defend property

We found strong support for H1 among the four groups of strangers, all of whom were knowledgeable

about land disputes and land registration. Four people in these groups had been involved in land disputes

elsewhere, including court action and confrontations with land guards. All of them were aware of disputes

involving friends and relatives. They emphasised that registration was only one means of defending land,

especially in court. Confirming a detective’s opinion, it emerged that the procedures that created the

registered document had to be correct. The courts would reject an indenture that had been created

fraudulently. However, a landholder should ensure that another person did not build a structure on their

land and occupy it, as long term occupation provides that person with a strong claim on the land. A

landholder should have a structure built as quickly as possible and have the means to forcefully protect

their land against invasion (Interviews 5, 8, 11, 14).

H2 Registration serves no useful purpose for indigenes. Control factors are likely to prevent an individual

registering. Family knowledge plus the methods used to symbolically and forcefully protect one’s

interests mentioned in H1 are most important in asserting and defending a landholder’s interests.

We found conclusive support for H2 among the 28 groups of indigenes. It is against traditional norms to

register customary land in one’s own name, and control factors render it very difficult if not impossible at

present. Social processes such as the knowledge of family and neighbours are important in securing land

tenure. Much of this knowledge is acquired from witnessing the symbolic delivery process (or being told

about a symbolic delivery process) when land is allocated - the pouring of libations by the family head or

priest (Interviews 8, 58, 61).

The family head and elders control land allocation. Five groups indicated you will not be able to register

the land without the family head and family elders consent, and this is unlikely to be forthcoming

(Interviews 11, 32, 33, 40, 43). Four groups indicated that if you had been allocated a piece of land by the

family head, you could go directly to the chief and have it registered in your name. However, we could

find no evidence of this actually occurring. It appears that if a person was allocated a piece of land

individually on the understanding that they had the power to sell their land to a stranger, they might be

able to register the transaction without the family head’s consent (Interviews 13, 34, 36). One group

comprising individuals from four different families indicated that all their family lands had been

registered, but we believe this is not correct (Interview 43). A check with officials at the Lands

Commission indicated that this had not occurred, and was unlikely to occur (Interviews 1, 3, 22).

ACCESSIBILITY

For individual indigenes accessing registration is not possible, or very difficult, as discussed above. No

issues of accessibility emerged in the group discussions with strangers; they were all aware that a lawyer

should be consulted. However, theory relating to the antecedents of accessibility as per Figure 3 emerged.

H3: Agency Trust: The registration authority loses credibility if registered land transactions end up in

conflict, even if it is not in their mandate to check if the vendor has the right to sell customary land.

Two informants in leadership positions questioned how the lands commission allowed the Alrotech

transactions and other mischievous transactions to proceed (Interviews 41, 61).

H4: Agency Trust: If government agencies are seen to support a particular faction, then trust in all

government agencies is affected, including the registration authority.

One faction asserted that the police had accompanied and assisted land guards in attempting to grab their

land, and they had to call their family and support groups to confront both the police and the land guards.

They also alleged that those attempting to grab their land were affiliated to a national political party.

Consequently they did not trust government agencies at all. They also did not trust the court system, for

them the judges are corrupt and rule in favour of the politically connected (Interviews 11, 20).

Other groups indicated that acts of violence and intimidation had occurred, but it did not emerge that they

had been involved in physical confrontations with police and land guards. Allegations of corruption by

officials involved in registration did not emerge in these discussions.

Nothing emerged concerning agency performance – the time taken to register and the quality of the

documents - that might influence a decision to register or not. Given the other problems encountered, and

the magnitude of their influence on individuals and families, we can speculate that this issue was

relatively unimportant to the participants at the time the interviews were conducted.

Both leadership trust and individual trust are difficult to measure directly given the major conflicts that

have occurred in Bortianor. However, we can infer that trust levels are low. Many groups were reluctant

to talk about the leadership issue; a number indicated “there is no chief” (Interview 19, 28, 42, 57, 59,

60). People supporting a particular claimant to the stool did not acknowledge the other claimant; these

same groups handed us indentures signed by the person they asserted was the chief (Interviews 8, 21, 61,

35; 13, 29). “The two factions have supporters, just like the two big football clubs in Accra”, is how one

discussion group described the situation (Interview 43).

In addition to membership of a family and factions forming around the chieftaincy issue, factions formed

around economic activity (e.g. fishing). Youth groups had also formed around land issues. Many of the

youth are poorly educated. Groups demand digging fees from people building houses, and more than one

group might demand a fee. One group noted that they had become like the land guards.

CONCLUDING REMARKS

Bortianor mirrors many of the peri-urban land problems encountered elsewhere in Ghana, and sub-

Saharan Africa. Land sales have benefitted a few individuals; leaders have manipulated the rules, and

flouted their fiduciary obligations. Social change is manifested in fluid sets of customary rules, which are

changed and manipulated as people in powerful positions compete for power, land and resources,

evidenced in land grabbing and land conflict.

In examining the theory, the first two parts as per Figure 1 and Figure 2 may be applied to a case such as

Bortianor, but the focus should be broadened to land tenure security as the core phenomenon given the

current circumstances. The third part as per Figure 3 may be applied once there is a realistic chance that

people may register their land and the different concepts are be examinable; alternatively Figure 3 should

be adapted to cater for these situations. To restate, the primary objective is to improve tenure security,

justly and fairly. In Bortianor there are strangers who are able to register and indigenes who cannot

register their land. Notwithstanding, the constructs in figure 3 are likely to be antecedents of any strategy

that an individual chooses to defend their land interests. Thus in situations similar to Bortianor, we would

replace Registration Usage Strategy with the set of strategic choices available to different landholders.

This caters for situations which evolve differently to conventional thinking; i.e. where landholders may

secure their interests without formally registering their land.

As per Barry (2005), a study should first examine the social, political, historical, geographical and

institutional context of a particular situation. This should include the manifestations of social change and

the strategies that people use to defend their land, and strategies to acquire land. We should then examine

registration usage strategies in the context of usefulness, accessibility, social norms and control factors.

The remaining concepts in figure 3, agency trust, performance, leadership, individual trust, membership

and affiliation and the relationships between these entities should be examined on an ongoing basis.

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COURT CASES

NII Djasey Kwaofio II & Samuel Sackey vs Adama Tettey & William Mensah (Dsaasetse) Palace Case,

High Court Accra. Case L 551/2000

High Court Accra: Case L 283/2003; 12 Jun 2004 Jamestown Traditional council Nii Kommey Otsi Ata

IV vs Nii Akotey IV, Alrotech Settlement Case L 283-2003

Ewurama Dzadsie v Alrotech Case BL 622/2004