Exploring the “implementation gap” in land registration: How it happens that Ghana’s official registry contains mainly leaseholds

Abstract

The mismatch between customary law and statutory law is central in the ongoing land tenure discourse in Africa. Accordingly, differences between customary land rights and statutory land rights have commonly been identified to undermine inclusive land rights recognition and subsequent registration. However, there is less discussion about how existing alignments between customary land rights and statutory land rights are affected by implementation processes within and outside of land registration organizations. This paper looks at the case of Ghana where the existing law on land registration provides for the registration of diverse customary land rights, but ambiguity and contradictions among laws made at different times as well as practices of implementation of the law often result in the registration of only leasehold titles while neglecting other customary land rights. This creates an implementation gap which precludes the holders of lesser rights from registration and also reduces rights of usufructs to leaseholds. This qualitative study draws on document review and initial fieldwork in Ghana in two regions characterized by different land governance structures to investigate the nature of this implementation gap and the factors that explain it. Based on literature these factors relate to (1) legal simplifications versus real complexities; (2) administrative adaptations of the law; and (3) administrative capacity.The Lands Commission (LC) of Ghana is the official government agency for land rights registration. Within this organization, we found these factors reflected in the multiple interpretations of law, the use of narrow terminology in the process of registration and the lack of procedures for registering the usufructuary rights. However, the Ghanaian land registration system is characterized by a collaboration between the LC and customary institutions as well as actors of a much wider scope, who are associated to the LC both formally and informally. Within this context, explanatory factors play varying roles depending on the land governance structure of a region. Under a more centralized land governance structure, we found that the infiltration of politics into administrative processes accounts for the implementation gap. We also found that within decentralized land governance structures, the unassigned role of deed preparation, as well as low administrative capacity of the Customary Land Secretariats (CLSs) opens room for the informal involvement of LC’s staff as well as other external informal actors who prepare deed documents based on existing deed templates.We conclude that the interplay of customary and statutory actors and administrative processes involved in the implementation of land registration law deserve more research attention and that empirical and analytical focus needs to be shifted onto a) the differences in the nature of implementation depending on pre-existing governance structures across the customary/statutory binary b) the mundane elements of implementation, including existing administrative routines, but also the structure and content of templates used in registration processes and c) that technocratic approaches that seek to enforce better implementation of existing laws and/or foster inclusion of the registration of diverse land rights, need to take into consideration the practices and norms of implementing actors.