Where there is no government: Enforcing Property Rights in Common Law Africa 9780199782482, 2010047445

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ay )GOVERN MENT

ENFORCING PROPERTY RIGHTS IN COMMON LAW AFRICA

y SAND RA F.JOIREMAN aes

It is safe to say that a sizeable majority of the world’s population would agree with the proposition that property rights are important for political and social stability as well as economic growth. But what happens when the state fails to enforce such rights? Throughout sub-Saharan Africa, this is, in fact, an endemic problem. In Where There Is No Government, Sandra F. Joireman explains how weak state enforcement regimes have allowed private institutions in sub-Saharan Africa to define and enforce property rights. After delineating the types of actors who step in when the state is absent—traditional tribal leaders, entrepreneurial bureaucrats, NGOs, and violent groups—she argues that the institutions they develop can be helpful or predatory depending on their incentives and context. Because such institutions are neither inherently good nor inherently bad, Joireman develops a set of measurement criteria to assess which types of

property regimes and enforcement mechanisms are helpful and which are harmful to social welfare. By focusing on the varieties of property rights enforcement in Ghana, Kenya and Uganda, Joireman moves beyond simply evaluating the effectiveness of

official property rights laws. Provocatively, she also challenges the premise that changes in property law will lead to changes in property rights on the ground. Indeed, states that change their property laws face challenges in implementation when they do not control the authority structures in local communities.

Utilizing original research on the competitors to state power in Sub-Saharan Africa and the challenges of providing secure and defensible property rights, Where There Is No Government is a sharp analysis

of one of the most daunting challenges facing the African subcontinent today.

Digitized by the Internet Archive in 2022 with funding from Kahle/Austin Foundation

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GOVERNMENT Enforcing Property Rights in Common Law Africa

Sandra F. Joireman

OXFORD UNIVERSITY

PRESS

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electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Library of Congress Cataloging-in-Publication Data Joireman, Sandra Fullerton.

Where there is no government: enforcing property rights in common law Africa /Sandra F. Joireman.

p.

cm.

Includes bibliographical references and index. ISBN 978-0-19-978248-2

1. Land tenure—Law and legislation—Africa, English-speaking. 2. Land tenure—Law and legislation—Ghana. 3, Land tenure—Law and legislation—Kenya. 4. Land tenure—Law and legislation—Uganda. L. Title. KQC772,J65 2011 346.604’32—dc22

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CONTENTS

Preface and Acknowledgments

ix

1, Introduction: Land, Law, and Social Welfare

3

2. Colonization and the Myth of the Customary

25

3. “Under the Circumstances, We Do What We Can”:

Entrepreneurial Bureaucrats and the Allocation of Property Rights SS 4. Property Rights Enforcement by Other Means:

The Role of Nongovernmental Organizations 81 5. Private Enforcement of Property Rights: The Demand for Specialists in Violence 103 6. In Search of Order: State Systems of Property Rights and Their Failings with Rachel Sweet Vanderpoel 129 7. Drawing Conclusions

Appendix Notes

165 172

References 184 Index 201

13

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PREFACE

AND

ACKNOWLEDGMENTS

This book is the result of extended field research in multiple communities in common law Africa. The project evolved from preliminary research in rural Uganda where, on a sabbatical, I spent some time examining the implementation of a new land law passed in 1998. Though most of my previous field research had been conducted in other areas of East Africa and the Horn, the progressive nature of this land law drew me to Uganda. I was eager to see what was happening on the ground and how newly created land tribunals were interacting with existing state structures and the remnant of customary authority left after the National Resistance Movement reforms. While I expected to see disparate implementation of the new land regulations and institutions, it was nonetheless surprising how little had occurred on the ground. It was also interesting to learn from personal interviews that there was enthusiasm among the citizenry for the implementation of the land law and the establishment of local dispute resolution systems. During 2005 and 2006, I conducted research in Kampala, Tororo, and Mbarara, three very different areas of Uganda. The differences I saw between the urban and rural communities in terms of accessibility, nature of cases,

and the training of personnel led me to pursue further work using paired urban and rural case studies. My experience in Uganda shifted my focus from looking at just the implementation of land law to examining a broader set of questions regarding enforcement of property rights: Whose property rights are

being enforced? Are those “rights” legally recognized in public law, customary law, or some other authority? Who enforces these property rights? Focusing on land law in Uganda put me in contact with a number of nongovernmental organizations (NGOs) working on

land and legal aid. From this start, Ibegan a multi-year project examining the enforcement of property rights in three countries in Africa—Ghana, Kenya, and Uganda—all of which had been engaged in some sort of major reform of their land tenure and administration laws with varying degrees of success. I had conducted research or worked previously in all three countries. Ghana, Kenya, and Uganda are all stable and democratic (although Kenyan post-election violence in 2008 somewhat challenges this assessment). In 2009 Free-

dom House rated Ghana as free and Kenya and Uganda as party free countries, based on their assessments of civil liberties (Freedom House 2009). They also share the important characteristic of being common law countries, colonized by the British and with adaptations of the British legal system. There are significant differences between common law and civil law legal processes and content that are important when studying property rights.’ The common law was developed as a procedure that, if properly followed, would result in a judgment for the plaintiff or defendant. The focus in common law is on the process, rather than the application of a code, as is characteristic of civil law systems such as those of France or Germany. Perhaps due to the emphasis on process, the English legal system gives us the idea of legal precedent and the reliance on the body of cases decided in the past to guide the present decision of a judge. All of this matters when examining the enforcement of property rights. Not only are articulated rights to movable and immovable property sometimes different, but the legal processes of enforcement are dissimilar. For example, in civil law systems there is a° concept of a usufruct right, a legally recognized right to use land for 1. I detail the differences and implication in the African context in (Joireman 2001 );

[x] Preface

specific purpose or time, which is not confused with ownership or rental. This concept is nonexistent in common law.”

Although the land tenure and administration systems in Ghana, Kenya, and Uganda vary, each country demonstrates a commitment to reforming their systems of property rights. Uganda passed the 1998 land act and a recent revision to that act, and is in the process of developing a National Land Policy; Kenya has just passed a new National Land Policy; Ghana has been engaged since 2005 in a longterm effort to reform its land laws and administration. In all of these countries, issues of property rights have entered the national policy arena. This led me to believe that there might be substantial civic engagement and interest around these issues. Once I had selected the countries, I needed to choose study sites. The capital city was an obvious choice for the urban cases. For rural cases I was influenced by the presence of contacts and connections. Since Ihad worked in Tororo, Uganda, previously Ichose to continue to use it as a research site. Rural cases in Ghana and Kenya developed out of ties Ihad with the Habitat for Humanity offices in each of those areas. Research on the paired case studies was conducted in 2006-2008. I constructed a web of individuals and organizations interested in property rights and the questions I would ask in each case study area. My students were also meaningfully involved in the research. For each study site, I found a nongovernmental organization with which I could place a student as an intern. I worked with a study abroad program at my college to select students who had an appropriate background of knowledge and motivation. Then, over the course of a semester, I met with the students, providing them with a background in property rights theory and training them in research methodology. When they went to the field they were aware of the overall goals of the project, findings to 2. Ihad a crash course in civil law doing my dissertation research in Ethiopia on property disputes. Never having studied law before, I tackled the court records there armed only with a background in political economy and found myself woefully confused over the nature of the cases. Thankfully, my research assistant, Emebet Kebede, was a lawyer and shared her knowledge of civil property law generously,

Preface

[xi]

date, my goals and objectives for their particular research, and the laws and history in their case study area. NGOs involved were conscious of the research project and were very willing to participate by providing an institutional home for the students. Since many of the NGOs were dealing with property issues, they were very supportive of the project. After each student had worked 6-8 weeks with the NGO, I went to the

study site, and worked with the student and the NGO on the project for about two weeks. This would allow me to model interviewing techniques, set up a list of subjects to be interviewed and questions to be asked, address any problems that had developed, and discern what could reasonably be accomplished. I also spent a lot of time with the staff of the NGOs, shared the project goals and research results to date, and sometimes assisted with their projects.’ I stayed in regular contact with students when they were in the field, assisted with interviews, next steps in research, and answered questions that developed. When students returned, I debriefed each of them and assisted with the organization of opportunities for them to present their research. As might be expected, research results from this sort of methodology were varied. Some students thrived, others did not. Some did work that was extremely useful, others less so. In all cases, my own

research and questions were enriched by the presence of observers on the ground for substantial periods of time. In the appendix to the book I have a complete list of the interviews that I personally conducted as part of this project (often with the students present as observers); I have an incomplete list of interviews that others conducted. Whenever students personally conducted an interview that I used, I have noted it in the references. Two specific instances of collaboration are worthy of note. Elin Henrysson lived and worked in Kisii, Kenya, in 2006. While working with Elin in the field, it

became apparent to me that she had the opportunity to collect data

3. For example, I had a student at the COHRE office in Accra Ghana while they were developing a database on research regarding women’s property rights in Africa, I was able to assist with the project and share a copious amount of references.

[xii]

Preface

regarding the cost of accessing informal dispute resolution systems. Though that research question was slightly off the general direction of this project, I thought the opportunity was too important to miss. The results of that study have been published in Law & Society Review and are alluded to in chapters 1 and 4 of this volume. In urban Kenya, I worked with Rachel Sweet Vanderpoel. I had connections with NGOs working in the large urban slum area of Kibera and I thought it would an interesting site to investigate property rights. Indeed. From the beginning it became apparent that far more was happening than we had envisioned. About halfway through her stay,

Rachel informed me that she had started interviewing some of the gang members who were involved in property rights enforcement. Since there were several incidents of arson and violence in Kibera at that time, I told her that she should stop talking to them. She ignored me and got some great interviews. Although it took months after the fieldwork was completed to sort out all of the different enforcement processes that were happening, the results were worth it. Collaboration is a good thing and sometimes hard to adequately recognize. Though the development of the research, the questions and assessment, and the majority of the writing is mine, I wanted to particularly acknowledge Rachel's role, so I have included her in the title of

chapter 6, where I present the findings. This book is the result of a long process of intellectual development that has been supported throughout by the generosity of colleagues working in the field, funding agencies, students, lawyers, and activists in Africa and the many people who have shared their experiences and opinions. At Wheaton College I have a debt of gratitude to both colleagues and staff who provided support for my work. P. J. Hill deserves special mention for his unflagging view that everything I was doing was interesting and for his willingness to engage in lengthy theoretical discussions that helped me in refining the arguments presented here. Paul Robinson, Cullen RodgersGates, and Barbara Watson managed the study abroad program that provided a group of students well-equipped to do research overseas. Preface

[xiii]

They also maintained positive relationships with the NGOs with which students were working and were instrumental to the success of the project. Dorothy Chappell was encouraging throughout the whole project, was instrumental in developing the grant proposal, and had a vision for what students could do. Jill Baumgartner, Seth Norton, Stan Jones, Bryan McGraw, Grace Dyck, Dianne McCarty,

Jan Miller, and Teresa Duncan all provided valuable help in the moving the project from vision to reality. I have very much benefited from both the encouragement and constructive criticism of colleagues working in the field. David Pervin, Richard Joseph, Klaus Deininger, Edmond Keller, Frank R. Gunter, Amy Poteete, Cathy Boone, Elliot Green, Ruth Meinzen-

Dick, John Harbeson, Andrea Nightingale, Isaac Unah, Thomas Sikor, Jesse Ribot, Jeremy Speight, and Elizabeth Mensah each con-

tributed to the refinement of the project. David McBride at Oxford University Press was an enthusiastic editor, and his support for the project was helpful. This research was financially supported by the National Science Foundation under Grant #0549496 of the Law and Social Sciences Program and by the Earhart Foundation. At the Earhart Foundation I would like to thank Ingrid Gregg and Monty Brown. It was a particular joy to work with a funding agency that would read the publications resulting from the work they funded! I additionally benefited from some early seed money from the Wheaton College Aldeen and Alumni faculty grants. It is no small thing to conduct a multi-year research project in six different locations and it would not have been possible without the cooperation and encouragement of Christine Bodewes, Opiata Odindo, Dan and Jan Gerber, Kilara Oruni, Grace Wangui Wam-

bugu, the Office of Human Rights and the Office of Peace-Building at Christ the King Catholic Church, Kibera, Atuki and Glyn Turner, Mama Evelyn Ndira, Sylvia Noagbesenu, Uganda Land Alliance,

COHRE Ghana, Habitat for Humanity Ghana and Kenya, Makerere University Institute for Social Research, Hakijamii, and Mifumi. [xiv]

Preface

Beatrice Kadangs taught me that problems with property rights can follow you halfway around the world and encouraged me by her timely reminders of the importance of this research. I am very grateful to all of the students, including those already mentioned, who worked with me in conducting field research: Santi

Amoakahene, Dustin Choate, Abbi Martin, Susan Crickmore, and

Rachel Burke. Not one of them really knew what they were getting into and they were good-humored and enthusiastic as the extent of their involvement became apparent. Their personal insights and data collection were necessary to the breadth of this project. Sarah Baggé, Katie Graham, Ryan Juskus, and Anna Westlund, all provided necessary research assistance and editorial advice. Another former student, Sarah Day, provided the cover photo. A large portion of the manuscript for this book was completed while I was a scholar at the Centennial Center at the American Political Science Association in Washington, D.C. My thanks go to Allsion Desrosiers for making my stay so productive and to Jeff Biggs for making me feel welcome. Margaret Mary Kimmins helped to make my transition from Chicago to Washington delightful. My deepest debt of gratitude is to my husband Paul Joireman for enabling my absence from family life at critical junctures in the project and supporting the research with his time, technical assistance, advice, and encouragement. This book is dedicated to our children,

who were mostly left behind while I was conducting field research, but maintained their resilience and a steadfast belief that their Mom was doing a good thing.

Preface

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CHAPTER

1

Introduction Land, Law, and Social Welfare

onducting research in rural Uganda a few years ago, I met a well-educated widow whose husband had died while she was quite young. She went to court to get the letter of administration that would allow her to settle her husband's estate, collect his pension, and provide for her young children. Her application for the letter was challenged by her husband’s family, who claimed the letter of administration for themselves. When the widow met with the judge hearing the case, he advised her to withdraw her application, advocating the customary rather than the formal, legal settlement by

asking her, “Who will look after your children if something happens to you?” (WidowJ 2006). Custom dictated that all the husband's possessions go to his natal family and that if something should happen to her, the children would be taken care of by their father’s family. She had a choice to live by law or by custom, and the judge recommended that she follow custom. The judge, with altruistic motives, suggested that she follow customary law traditions that violated her legal property rights. It may seem odd that anyone would challenge a widow's right to her husband's assets, or that a judge would encourage a widow to relinquish her legal rights. Iflaw exists, we might think it obvious

that it will be enforced. Unfortunately, this is not always true. ‘This widow’s property rights—her rights to control over assets and land within the bounds of the law—were violated. Her experience is common in Sub-Saharan Africa, where customary law dictates what property rights are enforced, even when contradictory to statute law. Custom is just one of the impediments to the enforcement of property rights. All over the world, legislatures and judges create the laws and regulations that protect property rights. However, the courts, local administrative structures, and police are the people and institutions

that enforce those rights. Sometimes, as exemplified above, cultural resistance prevents the enforcement of statute laws. In other cases, the law and changes to it simply do not filter down to the appropriate administrative structures in communities located far from the center of power and the reach of the state. In developed countries, established networks of information provision ensure that knowledge of the creation of new laws is put into the hands of those most likely to be affected by them. Consider a U.S. Supreme Court decision changing the criteria for lawful searches by police officers. Once the decision is made public, the police patrolling the streets learn about it via both public and private mechanisms. On the public side, they will likely be made aware of the law via their local state’s attorney, district attorney, or county attorney. Regional law officers’ associations send out daily bulletins via e-mail updating chiefs of police on legal decisions that might affect them, and many police departments have an officer responsible for following legislative and legal decisions. At the same time, a variety of private information networks also exist. Publications and websites (such as www.officer.com) target officers on the street, discuss legal changes and their affect on police behavior, and provide additional information and education for officers. Print and broadcast media also impart substantial pressure for conformity to the law. When an enterprising reporter discovers a local jurisdiction flouting the law, she is ensured a great story. [4]

Where There Is No Government

These are well-developed mechanisms to keep law-enforcement personnel accountable and informed about changes in law that affect the way they work. In developed countries, the making of a new law triggers institutional change because of the many channels for information flow and accountability. In contrast, much of SubSaharan Africa lacks the organizational capacity and the resources necessary to convey facts about alterations in law and necessary changes in police or judicial behavior as efficiently as is done in the United States. Whether property law is not enforced because local administrations are unaware of it or because the law is objectionable, the effect is the same—without the enforcement of laws related to property, or indeed to any other area of legal rights, the law may as well not exist. There exists a fallacy of legalism, a belief that the creation of law through statute, legislation, or precedent will be sufficient to

bring about social change. This misunderstanding springs from the experience of developed countries and from the tremendous effort that goes into the writing and passing of legislation in all countries. Creation of law may be necessary, difficult, and challenging, but it is ultimately insufficient to achieve social change; enforcement is what enlivens law and moves it from printed word to public space. A property right that is not enforced does not exist. Theoretically, this fallacy of legalism is based on the idea that once the state is present, it is the most efficient definer of property rights and enforcer of contracts. North and Thomas note that in the West as the state developed it became the lowest cost enforcer of property rights and people were willing to pay taxes in exchange for well-defined property rights (North and Thomas 1973: 7). Here I argue that the state may not be the most efficient or lowest cost enforcer of property rights. Even after a state is established and consolidated there may be competing authorities, a variety of non-state actors, which can more efficiently enforce contracts and defend property rights than the state. This is true, not just in the geographic hinterland, but in capital cities, the very centers of power. INTRODUCTION

[5]

This book focuses on the enforcement of property rights in communities in common law Africa—those countries in SubSaharan Africa that were colonized by the British and that inherited the British legal system.' Rather than assuming that statute law, or what we might think of as the “law on the books,” is what is being enforced, an alternative approach is followed. Starting from within communities, I examine what is happening in specific localities and ask these questions: Whose property rights are being enforced? What group or institution is enforcing these property rights? This forces a consideration not only of what local rules are developed to regulate access to land but also how power is mobilized and institutionalized within communities.”

LAND AND THE POLITICAL COMMUNITY

Property rights are the rules that regulate control over a variety of assets including land. The enforcement of property rights is fundamentally political. This claim hearkens back in intellectual history to the work of John Locke, who viewed property rights as intertwined with the existence of the political community. For Locke, the preservation of property is the “chief end” of the formation of the state; citizenship is the mutual contract between people for the preservation of individual rights to property. Locke argues that claims to property should rightfully arise from the exertion of labor on the

land (1764). The social contract is undermined when property ownership is denied to some or when not all who work the land have the ability to claim ownership or use rights. Locke’s perspective emerges out of an agrarian society and, not surprisingly, his ideas about labor and property have a contemporary resonance in places

around the world where livelihoods are primarily agricultural. ; Jean-Jacques Rousseau shared Locke’s conviction that property was responsible for the creation of the political community, but he believed that the establishment of property was an uncorrectable [6]

Where There Is No Government

mistake that brought oppression and hardship to human beings

(1755). From his perspective, as property was established “equality disappeared, forests became smiling fields, [and] slavery and misery

arose with the crops” (Copleston 1960: 68). Rousseau argued that property led to the creation of a political society with government and law, which in turn created social classes and the entrenchment of ine-

quality. Pierre-Joseph Proudhon famously criticized property as “theft,” preferring an understanding of property based exclusively on the product of one’s labor. He observed that the upper class exploited the labor of the lower class, stealing the “property” of the workers through claims to the ownership of the means of production (e.g., a large piece of arable land). Proudhon believed that no one had a right to own the means

of production and that upper-class ownership of property resulted in exploitation. He therefore advocated the abolishment of property beyond the product of one’s labor because it created injustice (1876). These early theorists were acutely sensitive to the political nature of property rights as they were living in societies that were predominantly agricultural and where authority structures were contested. In this regard their understanding of property is relevant to contemporary contexts like Sub-Saharan Africa where a peasantry still exists, there are competing ideas about property, and the reach of the state is limited. It is ironic that while these theorists, Locke in

particular, have so influenced the development of Western concepts of property, we have lost their understanding of property formation—the definition and enforcement of property rights that occurs within the complexity of political structures and social networks. In these early political theorists there is an understanding of the

practical use of land for production, its hierarchical relation to authority, and its horizontal links to community and citizenship. This perspective sharply contrasts with modern understandings of property rights, which are both reified to represent sound economic institutions and simplified by their isolation from authority and community.? While property rights and their enforcement mechanisms are important economic institutions, they cannot be isolated from the INTRODUCTION

[7]

social and political systems in which they are embedded. They are absolutely dependent on local patterns of authority. Because of the nexus between property and authority, property evokes strong feelings. Emotional ties to property additionally stem from the meanings that it carries beyond its importance for economic subsistence and its ties to politics. It also has cultural importance as a marker of adulthood, identity, or community membership and, in certain places, property can even have religious significance. Commenting on a land conflict in South Texas, an Apache woman tied her land claim to her identity as an Apache saying, “We must be with this land. We were born for this land.’(Norrell 2008: S). Where property is closely tied to culture and identity, it is difhcult to disaggregate the role that land, exclusive of identity or ideol-

ogy, plays in political conflicts. One recent example is the 2007 Kenyan election violence. While voting for the presidential election occurred in an orderly fashion and was relatively free and fair, officials manipulated the vote tally and violence broke out. The worst violence occurred in areas in which property rights to land were contested. Though not the cause of the violence, land conflicts did

influence the way that the post-election conflict played out in two ways: increasing the intensity of the violence and encouraging what appeared to be a calculated displacement of people who did not have “blood ties” to the land (Allen 2008). Land conflicts defined the nature and location of election-related violence. Pushing people off the land was an expression of a deep belief that the land belonged to those who came from that place—the autochthones, or “sons of the soil” (Lentz 2006a, 2006b; Hagberg 2006).

THE ARGUMENT

FOR CLEAR PROPERTY

RIGHTS

For decades, economists and development specialists have argued that secure property rights are a precondition for vibrant economic growth. Property rights, as noted above, refer to control over assets. [8]

Where There Is No Government

Anderson and McChesney give a more complex definition of property rights as “formal or informal rules that govern access and use of tangible assets such as land and buildings, and intangible

assets such as patents and contract rights” (2003:1). Without clear knowledge of who owns what, it is difficult to make use of a resource,

whether it is a plot of land, a tree, or a house in an urban settlement.

Many of the poorest countries in the world, with the so-called “bottom-billion” population (Collier 2007) are in Sub-Saharan Africa. These countries are overwhelmingly agricultural with disproportionately rural populations in comparison to other areas of the world. In these countries, property rights to land are particularly critical to both food provision and the small-scale production of crops that can be sold in domestic and international markets. Many have poorly defined property rights, an artifact of the colonial era when indigenous populations were thought to hold land in common and were required to administer it through customary mechanisms. Over time, as populations have grown and the relative value of land has increased, these

customary institutions have persisted, often due to the benefits accruing to certain groups of elites rather than to the population as a whole. This type of social order is what North, Wallis, and Weingast refer to as limited access or natural states—those that have strong social hierarchies and inequalities in market access and the enforcement of prop-

erty rights (North et al. 2009). Throughout much of Sub-Saharan Africa, many people who use or possess land have no legal proof that it is theirs. Moreover, whole segments of the population, such as women and migrants, have no claim to control land under customary landholding systems, which extend over approximately 75 percent of the land in Sub-Saharan Africa (Augustinus 2003). Their rights to land, discussed in detail in the following chapter, are secondary rights, or what we also might conceive of as use rights.

Scholars have noted that the definition and defense of the property rights of the poor will increase their well-being and allow them access to new business and educational opportunities through INTRODUCTION

[9]

capital formation.* Hernando de Soto (1989, 2000) argues that property rights spur economic growth by creating “meta” property—

the paper trail of title and mortgage that can free the surplus value of assets and provide the necessary capital for economic growth and development. Without this legal framework of property rights, people can only effectively do business with those whom they trust.° Wider economic opportunities remain restricted by the absence of proof of ownership and control that would enable individuals to mortgage their property and use the capital for investment. De Soto posits that property rights for the poor will lead to poverty alleviation, drawing on previous work that suggests land title leads to greater investment and productivity (Platteau 1996; Demsetz 1967; Feder and Noronha

1987; Libecap 2003). However, de

Soto diverges from previous theory by identifying the importance of titling all informally held land, small urban plots as well as farmland, in an effort to boost the potential of capital accumulation for the poor. Recent studies of titling suggest that de Soto was not correct in

thinking that title will lead to mortgaging and the creation of capital, at least in the short -term. However, there are other positive benefits from titling that run the gamut from home improvement to increased wage labor and smaller households (Cousins et al. 2005; Field 2005, 2007; Galiani and Schargrodsky 2007). Time will tell whether access to capital results from titling in the long term, What we know at present is that titling improves human well-being in ways that were unanticipated. Scholars are not the only ones advocating for secure property rights; people across Sub-Saharan Africa are demanding clarity and security of property rights. This demand is evident in the plethora of legal disputes to clarify ownership that congest courts and conflict resolution mechanisms (Deininger and Castagnini 2004; Fenrich and Higgens 2001; Human Rights Watch 2003; Joireman 1996;

Mwangi 2009; Toulmin et al. 2002). Legal disputes heard in national courts represent a costly allocation of state resources to [10]

Where There Is No Government

the adjudication and enforcement of ownership. There are also less obvious social and economic costs at the local level, resulting from

conflicts among family members and between neighbors that, though difficult to measure, can be quite significant. Disputes over land are exacerbated by civil conflict, which leaves a legacy of confusion over land rights. As original occupants of land flee, sometimes residing elsewhere for years, their claims to the land they left is often challenged by new occupants when they return (Integrated Regional Information Network 2008a, 2008b, 2008c). Liberia is an example of how war can exacerbate land conflicts. Prior to the civil war in Liberia there were two types of landholding: customary and formal. Formally held property was designated with title deeds and written contracts. There was typically little documentation of customary land or a ‘tribal certificate’ which held no legal weight. When the war came, large segments of the population were displaced. Moreover, because the war lasted 14 years many property transactions were made during the conflict. With peace in 2003, displaced people returned and the challenge of asserting original ownership and reclaiming property that had been exchanged or appropriated during the war began. Complicating these matters are rising property values and an inadequate land registry (“Liberia:

Searching for Solutions to Land Disputes” 2010). Policy makers and government officials across Africa, interested in the development of their countries and convinced by extant theories of the importance of property rights for poverty alleviation, have embraced the idea that property rights need to be better defined both to promote growth and to reduce societal conflict. For example, Laurent Sedogo, the Minister of Agriculture, Water and

Fisheries for Burkina Faso, recently noted that “The Government of Burkina Faso has made it a priority to solve land policy issues. The population needs concrete measures to guarantee and protect their land, reduce conflict and arrest degradation” (Economic Commis-

sion for Africa 2008). Poorly defined or defended property rights have also been identified by bureaucrats and government officials INTRODUCTION

[11]

as sources of violent conflict. One Ivoirian magistrate noted that “The failure to fully implement the land law is partly to blame for the continuation of territorial conflicts . . ” (Integrated Regional Information Network 2006). Citizens of many African countries would agree with the economists and policy makers that they need secure property rights. Many would also affirm the need for legal proof of ownership. In research conducted in rural and urban areas of Ghana, Kenya, Uganda, Rwanda, Ethiopia, and Eritrea, I have

never had anyone respond negatively to inquiries about whether they would like clear proof of their property rights to land and houses. Indeed, their answers are often followed by a request for information as to how they might go about getting more secure property rights. The transformation of land into usable capital has not happened throughout most of Sub-Saharan Africa. Why? We need not indulge in stereotypes of backward farmers resistant to change, as farmers in Sub-Saharan Africa are quick to adopt changes in technology and technique that result in increased production. If people recognize their need for clear and secure property rights, and scholars and government officials believe this is necessary for economic growth to occur, then why is it so difficult to define property rights clearly? Given their importance for both food production and economic growth, why is it that countries have been slow to act in defining property rights and then enforcing them? These puzzles motivate this book.

WHICH

PROPERTY

RIGHTS ARE ENFORCED

AND

BY WHOM?

In many countries there is a disparity between those who have well-defined property rights and those who do not. For example, urban dwellers in Kampala, Uganda, are more likely to have some

sort of title or certificate of occupancy than people living outside of the capital city. Politically privileged groups are able to defend [12]

Where There Is No Government

their property rights in court and through the action of the police. Conversely, groups that are outside the center of power, either physically or politically, have difficulty harnessing enforcement mechanisms. Political violence is just one potential consequence of poorly defined property rights. Additional political issues such as representation and citizenship are also coupled with the definition and administration of property rights. Often the property rights that are enforced are not law, but social norm or custom that may be in opposition to public or statute law. Local administrators, police, and other officials may act in ways that

are mediatory or peacekeeping, but not legal. This is evident in the example that opened this chapter. Sometimes bureaucrats act outside the law with the intention of collecting payments from parties to the disputes; at other times they may act outside the law with altruistic motives. Additionally, the cases presented here, particularly in chapters $ and 6, demonstrate that previous arguments regarding urban bias and the political geography of power do not always hold with regard to the enforcement of property rights. We observe an evident lack of enforcement of property rights in Nairobi and Accra, along with a variety of choices that people have to pursue enforcement of their property rights outside of the state system. This finding runs con-

trary to the suggestion of Robert Bates (2005) that urban areas are privileged in terms of the expenditure of the state and to work by

Jeffrey Herbst (2000) and Catherine Boone (2003) suggesting that state power radiates outward from the capital city, becoming weaker in the hinterland. While these scholars are noting general trends, in

both Accra and Nairobi we see pockets of statelessness—areas where property rights are ill-defined and state enforcement mechanisms lack the power to resolve disputes and enforce contracts. These are both capital cities, the very core of the state, and yet with regard to property rights the state has competitors in enforcement and there is an urban demand for dispute resolution processes out-

side of the state. INTRODUCTION

[13]

When we turn our focus from the creation of law to its enforcement, our attention must move from the national political arena of each country to the locality and to the exercise of authority within communities. In the following pages I will argue that the state does not have a monopoly on property rights enforcement; customary leaders, gangs, local bureaucrats, and nongovernmental organi-

zations (NGOs) provide competing enforcement mechanisms for property rights. Though the state may have a monopoly on the legitimate use of force, it cedes that use to others in the arena of property rights enforcement through the recognition of customary law and authority, lack of policing in areas outside the center of state control, and tolerance of privately contracted security forces, gangs, and ad hoc private specialists in violence. A somewhat less disturbing trend is the role that NGOs play in enforcing property rights through persuasion rather than force. There are many places throughout the continent where the absence of state power is accepted, and privately ordered institutions simply fill in the gap. (By institutions I mean the formal and/or informal rules by which society is organized.) The development of privately ordered institutions where the state is absent is consistent with the work of economic historians which suggests that when the state is not doing all that is needed to enable a market, privately ordered institutions will develop (Ellickson 1991; Greif 2006). Implicitly and sometimes explicitly in the literature, privately ordered institutions are thought to be superior to those provided by the state precisely because they are organic, spontaneously arising to fulfill the needs of a particular community in a limited setting (Ellickson 1991; Smith 1992). While this text does not completely contradict this perspective, I argue that it is wise to entertain another possibility—that organically developed institutions might be predatory, representing the interests of only the most powerful members of the local community.° These predatory or suboptimal institutions can persist even when the state institutions for enforcement are

present. Because organically developed institutions are not assumed [14]

Where There Is No Government

herein to be “good” or “bad,” we need a measure by which to assess which property regimes and enforcement mechanisms are helpful and which might be harmful.

ASSESSING

SOCIAL INSTITUTIONS

The literature on property rights and market development indicates that certain types of institutions are better than others. However, no one has yet assembled the characteristics of “good” institutions into any sort of meta-evaluative structure. Rather, particular studies have illustrated specific elements of good institutions that emerge from cases or historical analyses. In this book the characteristics of good institutions are compiled into a set of criteria. Institutions that enforce property rights are then evaluated based on their predictability, accessibility, equity, effectiveness, and restraint. While the nature of the cases and the data prohibit absolute consistency in evaluation, each chapter of this book concludes with the use of these criteria to both interpret and assess the social benefit of the institutions that are in place. Why focus on the evaluation of institutions? The simple answer is to move beyond a belief that non-state institutions exist until the state replaces them. What we find in this book is that state and nonstate institutions coexist and are sometimes intertwined in complex ways. There must, therefore, be a reason that the non-state institutions continue. In some cases, state institutions are inaccessible in

some way, or are viewed to be less predictable than customary or local institutions. While we cannot ascertain from this research pre-

cisely why different institutions emerge, higher scores in the five areas of evaluation enlighten us as to why non-state institutions persist. These evaluation criteria are taken from published literature in political economy, yet the principles they reflect have been articulated in interviews with people across our research sites in Ghana, Kenya, and Uganda. For example, effectiveness and accessibility INTRODUCTION

[15]

are two characteristics of good institutions. The need for both is exemplified in the following statements from citizens in a slum area of urban Nairobi regarding why they would not go to the government Rent Tribunal (the appropriate legal institution) with a case: The Rent Tribunal can take two, three, five years. The landlords prefer the shortcut of the chief because if the case is in court, you might refuse to pay

your rent for that period of time. So the landlords don’t want cases brought there. Landlords don’t like coming to the Rent Tribunal. When they go to

the chief, you [the tenant] are knocked out (evicted). (HA 2007)

Another respondent noted that the government Rent Tribunal “takes long and there is that contribution,’ which the respondent estimated to be 500 KSH, well beyond his budget (SO 2007). In these responses we see both the issue of effectiveness and accessibility brought up as reasons why citizens might choose to avoid government channels of conflict resolution. These responses are examples of the resonance between the criteria selected from the literature to evaluate social institutions and people's stated opinions regarding their institutional choices. Although these criteria were selected based on what would be the best evaluative measures of property-related institutions, they serve as a model for the evaluation of other social institutions in both content and design. The evaluative criteria are based on the experiences people have engaging institutions in a particular locality, rather than simply the presence of the institution or what its intention might be as articulated in law and policy. As noted above, one of the most important qualities of a good property rights institution is its predictability. Whether a social norm or a statute law, predictability in terms of access and process is key. If a person owns a house and wants to improve it, she needs to know if she will own the house in three years; otherwise her benefit might not be worth the costs of making any changes or improvements. A property rights or enforcement regime such as a customary dispute [16]

Where There Is No Government

resolution process should assist people in maximizing their well-being by enabling long-term investment (De Alessi 2003; de

Soto 2000; North and Thomas 1970; World Bank 1997). Certainty of possession raises the value of any property, and certainty in institutional structures is so important that scholars have argued that even corrupt regimes can garner international investment if they

provide a predictable economic environment (Campos et al. 1999). Predictable conflict resolution institutions, whether they are state or customary courts, settle property disputes based on a set of criteria that are either stated (in law) or sufficiently obvious to the political community that they can plan their actions accordingly. Second, in order to function well, social institutions governing

property rights must be accessible. Courts, mediators, or mechanisms that prove too costly to reach in terms of money, time, or both are ineffective in resolving problems (Henrysson andJoireman 2009; Nyamu-Musembi 2003). Customary courts or conflict resolution mechanisms are often lauded for their accessibility (Connolly 2005; Kane et al. 2005). While national courts may be difficult to reach because they are only in larger towns, customary dispute resolutions

are everywhere. Elinor Ostrom has noted with regard to common property regimes that “simple, local mechanisms, to get conflicts aired immediately and resolutions that are generally known in the community” can reduce the number of conflicts that exist and build trust in the community (Ostrom 2000). Economic historians have also observed the importance of accessible conflict resolution mechanisms in the development of markets. Where conflict resolution mechanisms exist, markets with impersonal exchange can

develop and thrive (Greif 2006). Third, social institutions must meet minimum standards of equity (Libecap 1991; North 2005). Those that work only for one ethnic

group or exclude a particular segment of the society are undesirable. No institution will be perfect in achieving equity, as social institutions are composed of imperfect people who operate with their own biases. That said, the less biased an institution, the better it will be INTRODUCTION

[1/7]

able to serve everyone within a society regardless of the social location of the individual. Institutions using criminal gangs, corrupt officials, or others who solve problems based on the highest payment received from participants are also unacceptable based on standards of equity. Fourth, any kind of allocation or enforcement regime must be able to serve its role authoritatively and completely. Resolutions that are

temporary or eventually compel a different institutional choice are disadvantageous (Anderson and McChesney 2003; North 2005). For example, if a person goes to a traditional leader to resolve a dispute, but finds that the leader is unable to bring a resolution to the conflict and that it is necessary to take the case to court, the plaintiff has wasted his or her time and perhaps other resources as well.’ Temporary solutions indicate the powerlessness or insignificance of the institution and may also become a cumbersome extra step in attempting to achieve a goal, whether it be land access or the resolution of a land conflict. I call this criteria effectiveness. Lastly, social institutions are desirable to the extent that they do not rely on unrestrained violence (McChesney 2003; Weingast 1993). Violence can be a fast and effective solution to property rights allocation issues or disputes that arise over resources. Several of the chapters in this book document the use of violence to resolve property disputes, and we see this in other places around the world. However, the

private allocation or enforcement of property rights through violence can both consume valuable resources and undermine the potential for

economic progress (Anderson and Huggins 2003). Additionally, conflict resolution that occurs through violence can exacerbate, rather than resolve, disputes and can have other negative externalities. Therefore, restraint is an important characteristic of social institutions. Using these five criteria—predictability, accessibility, equity, effectiveness, and restraint—we can assess the net benefit of differ-

ent property rights regimes and institutions that resolve conflicts over property. Table 1.1 provides a rubric that notes how we might begin to measure each of these criteria on a continuum from low to [18]

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Table 1.1.

INSTITUTIONAL

Low Predictability |Unclear what the cost will

ASSESSMENT

RUBRIC

Medium

High

Notentirely apparent

Costs and time frame are

be to utilize the

why or how

clearly defined up

institution. Unclear

decisions are made.

front. Needed

whether the institution

Costs, documenta-

documentation is

will work or how it will

tion, and other

obvious, Nature of

work,

needs unspecified.

decision-making process is clear.

Accessibility

| Not affordable for the

Affordable for some

Fees are affordable for the

average person either

people in the

average person,

due to fees or

society, although

proximate venue to

unpredictable

beyond the reach of

people who will be

necessary payments,

others, proximate to

accessing the

Location requires a

some.

institution or service.

large sacrifice in terms of time or money to reach.

Equity

Only serves the needs ofa

Serves the needs of all

Discriminates against

relatively small

some members of

members of the

percentage of society.

the society, serves

community. No

Discriminates on the

the needs of others.

discernable

discrimination based

basis of sex, ethnicity,

on individual traits,

or other trait.

Effectiveness

_Unlikely to resolve

Will resolve problem

Can resolve conflicts

problem. Will need to

in certain

and/or provide service

pursue some other

circumstances,

finally and completely.

parallel or competing

although in others it

process to achieve goal.

is necessary to

pursue other institutional

remedies. Restraint

Processes rely on violence

While generally free

Completely free from

or the threat of

from violence or

unrestrained or illegal

violence, intimidation,

intimidation, at

use of violence and

or other harm.

times these can

threats.

enter into the

process. ew

INTRODUCTION

[19]

high. These measures can be applied more widely to other types of social institutions such as policing and service provision. The model of creating a meta-analysis for assessment of institution is also useful beyond the study of property rights and the institutional choices in Ghana, Kenya, and Uganda.

MAP OF THE BOOK

The following chapters address some of the key issues of property rights and their enforcement in Sub-Saharan Africa. Chapter 2 provides a context for what we know about property rights, examining the issue of customary property in Africa in the pre-colonial and colonial periods and how customary property regimes persist in the current era. There is an extensive literature on the conflict between statutory law, customary law, and other norms of behavior that

might construct the rules of property in any given society. Rather than focusing on the sources of these differences, I examine what is

happening on the ground where law is enforced and certain people have control over resources while others do not. By examining what is enforced and for whom, we find instantiations of property rights that reveal critical issues of authority and practice. Examining the locality also reveals a wealth of privately ordered institutions, some of which are exploitative and undesirable. Customary law and statute law are separate arenas of power for the articulation and adjudication of land rights in Africa. They overlap and sometimes conflict, creating a situation of legal pluralism. Additionally, there is often confusion as to which body of law applies where. Under these circumstances, what does it mean then to implement new property law in an environment in which any new statute

will not apply to the vast majority of the land in a country? Moreover, customary tenure is dependent on customary law and customary leaders to articulate and enforce it. Customary leaders often have their own interests to pursue, contrary to the agenda of the state. The [20]

Where There Is No Government

chapter identifies winners and losers from customary law and tenure and discusses its future and effectiveness. One of the most significant group of losers under customary tenure and law is women. While women may have full citizenship and economic rights protected in statute or public law, under customary law they rarely have autonomous rights to land and can face significant challenges in defending the use rights that they can claim. Chapter 2 ends with an assessment of customary law and the role of customary leaders against the evaluative rubric. Not surprisingly, one of the weakest areas for customary law is that of equity because of the differential property rights of men and women under customary systems of land tenure and law. Land is so important that where there is no clear institutional control of it by either customary authorities or by the state, we see other institutions organically developing to control access and enforce the property rights that exist. The second half of the book examines institutional development where the state is too weak to allocate and enforce property rights. In chapters 3, 4, and S, three types of organic property rights enforcement mechanisms are discussed. Chapter 3 tackles the issue, pervasive in Sub-Saharan Africa,

of bureaucrats operating outside of their area of responsibility. I identify multiple examples of bureaucrats taking on a role in the allocation and enforcement of property rights that is either explicitly prohibited by law or not within their normal set of responsibilities. Attention here is given to the role in Kenya of chiefs who have been specifically forbidden from adjudicating property disputes, yet do so with frequency in both rural and urban areas. Chapter 3 will also examine the role of Ugandan elected officials who act as judges and registrars of land, in spite of a recent law providing alternative formal mechanisms for doing so. I assess the social welfare maximization of bureaucratic entrepreneurs according to the five criteria presented above and note that while at times it is clear that bureaucrats are demonstrating venality, in other contexts their role might be considered helpful. INTRODUCTION

[21]

Some substitutes for the state, such as mafias and warlords, are an

obvious threat to public safety; other state substitutes are more

innocuous. Chapter 4 examines the role of nongovernmental organizations in enforcing law when the state does not do so. It has long been accepted that nongovernmental organizations have taken over the role of the government in spheres of health and education in Africa. Here it is argued that we are increasingly seeing NGOs active in the legal and law enforcement sphere, particularly when it comes to enforcing property rights that exist in public law but are impeded by customary or traditional authorities. Using examples from Uganda, the chapter shows how NGOs can fill in for the state in educating people about property rights and even in enforcing property rights that exist in law. These examples both contribute to the understanding we have of nongovernmental authority vis-a-vis the state and demonstrate a private response to state failure or weakness. The role of criminal gangs, private security firms, and other “specialists in violence” in administering territory in Africa has been the subject of much scholarly research in the past decade. Chapter $ begins with an examination of the privatization of security at multiple levels and then narrows to the role that private security companies play in filling in for the lack of state authority in oil-rich regions of the continent. The second part of the chapter addresses the unique problem of property protection by specialists in violence in Accra, Ghana, where young men called Land Guards act informally to secure property rights from encroachment. The role of the Land Guards as an informal innovation to fill the need for security of property rights will then be assessed according to the five criteria we can use to evaluate institutions: predictability, accessibility, effectiveness, equity, and restraint. The chapter concludes with comments regarding our current understanding of the political geography of power in Africa and the Weberian understanding of the state. After examining these three alternatives to state enforcement mechanisms( bureaucratic entrepreneurs, NGOs, and specialists in violence), I address their competition with the other existing “legal” [22]

Where There Is No Government

system—statute law and the enforcement mechanisms that go along with it—in chapter 6. Examining the issue of property rights enforcement in urban Nairobi’s largest slum, Kibera, Rachel Vanderpoel

and I present evidence of all three non-state systems of property enforcement existing as alternatives to the state system in the same time and place. Intense urbanization in many African countries over the past decade has led to the development of areas and populations that are geographically proximate to the center of power (indeed, within the very centers), yet as notably beyond state control as the geographic hinterland. Urban informal settlements like Kibera are creating pockets of statelessness within capital cities that often have neither formal political representation nor basic public goods. This chapter speculates as to why these pockets of statelessness persist and why attempts to title and enforce property within them have been bypassed. A simplistic understanding of property rights ignores the complexity of rights and vested interests already in existence, the measures needed beyond the creation of law or legal rulings in order to change existing property rights, and the difficulty of enforcing property rights, not just in rural areas, but in urban areas as well. When

we examine the areas of Sub-Saharan Africa where property rights are controlled by statute law, how many people actually have property rights defined and protected by law? How many can get these property rights enforced by the police and by the courts? Fewindeed. Secure and enforced property rights are important for poverty alleviation, but the path to achieving them is far from straightforward.

INTRODUCTION

[23]

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CHAPTER

2

Colonization and the Myth of the Customary

if the introduction I asserted that property rights that are not enforceable do not exist. This chapter develops the context for this statement.’ Africa has had a polycentric legal environment for a century and a half, as statute, or public law, has coexisted with cus-

tomary law—the rules by which ethnic groups govern themselves and the resources under their control. In this competitive legal arena, certain property rights are honored and others are not. Moreover, the existence of dual, and sometimes overlapping, systems of law has resulted in a cross-fertilization of legal systems in which statute law in some countries is influenced by customary law as well as the more commonly observed opposite influence. Customary law, traditional leaders, and customary landholding are bound together like a three-stranded cord, each reinforcing the

others. Customary law is articulated and enforced by customary leaders who derive their authority from the community. Customary authority is necessitated by customary land tenure systems across Sub-Saharan Africa. Recognition of customary land tenure in many places provides a need for traditional leaders to allocate and admin-

ister it. They must do so according to a set of rules—customary law. Because the allocation and control of land brings economic and political power, those who manage it are assured an important place

in the social and political hierarchy. The role of traditional leaders in Sub-Saharan Africa is tied to the decisions of colonial officials to create separate categories of land rights for citizens and subjects. In countries where colonization did not occur, such as Ethiopia, there

is no “customary” landholding system, and customary leaders do not everywhere play the same influential role in land administration systems or even in conflict resolution. Property rights and customary authority are linked in most of Sub-Saharan Africa. Is this a good thing? Does the additional layer of authority that we see where customary tenure systems exist facilitate or impede social welfare? The issue of societal benefit is at the forefront of this chapter, which proceeds in three parts. The first part of the chapter discusses the origins of customary law, then its development and purpose during the colonial era. In the second part, winners and losers from customary legal systems are identified. In the third part of the chapter, customary systems of land tenure and authority are evaluated based on the rubric presented in the introduction. The chapter concludes with a discussion of the impact of customary law on contemporary efforts to transform property rights for the purposes of economic growth and suggests ways in which customary property rights and authorities might persevere with a positive benefit to the whole society.

THE PRE-COLONIAL

ERA

Prior to colonization, Africa was not ungoverned; rather, there were

city-states and kingdoms, varying greatly in size and control of territory. The more politically organized pre-colonial African kingdoms ranged in size from compact city-states to far-reaching empires. The former included the seven Hausa city-states that flourished in north: western Nigeria and southern Niger from 1450-1804. Ofthese, Kano

was the largest, reaching a size of 13,000 square miles. Kano’s rulers controlled not only the population within the city’s 15 miles of miles [26]

Where There Is No Government

of walls, but also the surrounding agricultural communities (Griffeth 2000). During the same time period, the Abyssinian empire was consolidating control over much of the territory occupied by the earlier Aksumite empire, which at its peak had covered 480,000 square miles in present-day Ethiopia (Turchin et al. 2006; Darkwah 2005). In southern Africa, the Lozi (also known as the Barotse) controlled roughly 24,000 square miles of territory along the Zambezi River by 1800 (Phiri 2005; Langworthy 1972). They exercised their power in varying degrees, ranging from the areas under the strong centralized leadership of the royal bureaucracy to peripheral territories in which chiefs from other ethnic groups maintained control in exchange for tribute and homage (Integrated Regional Information Network 2006; Colson and Gluckman 1959). In the most politically organized societies, such as that of Abbysinia or the Ashanti kingdom of present-day Ghana, there was more resistance to colonization, which delayed or impeded foreign domination. Colonization did not simply impose institutions where none had previously existed. In organized, pre-colonial political systems, what we now refer to as customary law existed. Nowhere was there an institutional tabula rasa, particularly in the area of dispute resolution. Customary law and traditional institutions regulating payment for damages or death were in place in most colonized territories and did not disappear with the arrival of the colonizing power. In some countries there was also an additional body of law, such as sharia or Islamic law, which governed the personal matters of individuals and in some situations commercial interactions. Initial colonial contact created a critical juncture at which the colonial power decided how to recognize and/or limit traditional rules.

COLONIZATION

AND

INDIRECT

RULE

The focus in this book is on countries within common law Africa— those areas that were colonized by the British and that inherited British political institutions. The British colonial administration COLONIZATION

AND

THE

MYTH

OF THE

CUSTOMARY

[27]

followed a strategy of “indirect rule” in which colonial officials exercised power through local leaders who were already invested with some authority by their communities. Indirect rule enabled the British to control most of the globe with a relatively small group of officials deployed overseas, limited numbers of soldiers, and a small population back home. Under the system of indirect rule, customary law was redefined and transformed from an instrument of organization into a tool of domination. The colonial impact on customary law in common law Africa can be seen in the selective empowerment of local elites and the creation of dual courts, laws, and landholding systems that persist in the present. Colonial authorities also suppressed the development of land markets in areas they determined were communal (Chimhowu and Woodhouse 2006). Under the demands of indirect rule, effective governance had

to meet two requirements: (1) provision of space for the indigenous population to live on and farm; and (2) minimal administrative oversight by colonial officials. This led to the creation of native reserves, customary tenure areas, or tribal homelands. These areas could be administered by “traditional” leaders without requiring expatriate civil servants working in the adjudicative and administrative institutions of the state. Where traditional rulers could not be found, they were created, and where rulers’

previous powers did not relate to the administration of land, they were given new powers.” One might imagine that British history would predispose the colonial administration to recognize and privilege privately held land over commons or communally held territory. The British enclosure movement (fourteenth through the sixteenth centuries) was a

triumph of individualized property rights over common property rights in which landholders were allowed to consolidate their rights and provide the foundations for a post-feudal system of land use and management. In India, which was colonized a century before Africa,

the privileging of privately held land over communally held land led [28]

Where There Is No Government

to the elimination of much communally held land all over the subcontinent (Robb 2002). Yet, in Africa, the British acted quite differently, choosing to divide property rights into two spheres: customary and privatized rights. Customary rights were communal rights, and private, individualized property rights were defined and protected under statute law and reserved for the colonizers. Since colonial governments did not find conceptions of landholding that were equivalent to that of fee simple or exclusive land ownership among colonized peoples, it was assumed that landholding was vested in the community and allocation was controlled by a chief. One particularly influential government anthropologist, C. K. Meek, noted from his work in

northern Nigeria that, “African peoples have traditionally no conception of ‘ownership’ of land in the Western sense. Land belongs to God” (Meek 1957: 113). Meek was instrumental in developing a particular view of customary tenure that was extreme in its limitation

of individual rights, a position which was adopted by the colonial administration in other areas. British or common law recognized individual rights, yet their version of customary law focused only on group rights, so much so that individual property rights in land, for example, were not recognized for indigenous people in British African colonies.’ Indeed, evidence of existing patterns of individual land ownership among Africans was ignored. In Kenya, the Kikuyu opposed government efforts to make their land communal and

called for the enforcement of private rights to land (Bates 1984: 28). In Ghana, the first political party formed around the issue of support for privatized rights to land, and across British West Africa, so-called

“natives” demanded private rights to land, which were denied them (Kimble 1963). Lord Hailey, in his survey of the African colonies, identified multiple instances where there was tension between group rights in the Native Reserves and pressures for individualization of

land rights (1957: 775-815). In a similar vein, Lord Frederick Lugard, famous for his colonial service as administrator of Nigeria, noted “It is remarkable with what tenacity the native mind holds to COLONIZATION AND THE MYTH

OF THE CUSTOMARY

[29]

the idea of private ownership, or at least of the absolute right of tenure in perpetuity” (Lugard 1965: 286). During the colonial era, when land markets appeared to be developing in customary tenure areas, they were suppressed by officials, as land markets did not fit with ideas regarding the communal nature of African land tenure.* As Meek noted: The authority of chiefs, sub-chiefs and heads of clans and families is bound

up with the land. The grant, therefore, to individuals of absolute rights of ownership would tend to disrupt the native policy, and so, too, would the indiscriminate sale of tribal lands by chiefs. The control of alienation of land has in consequence been one of the main planks of the British system

of “Indirect Rule.’ (Meek 1949:10)°

British colonial officials persisted in the belief that Africans defined themselves only in terms of their group and kinship ties, even with regard to their economic behavior. When this was obviously not the case, the colonizing authorities made it so. Mahmood Mamdani is

quite critical of what he sees to be the entrapment of Africans in the “world of the customary”: European rule in Africa came to be defined by a single-minded and overriding emphasis on the customary. For in the development of a colonial customary law, India was really a halfway house. Whereas in India the core of the customary

was limited to matters of personal law, in Africa it was stretched to include land.

Unlike the variety of land settlements in India, whether in favor of landlords or of peasant proprietors, the thrust of colonial policy in Africa was to define land as a communal and customary possession. Just as matters of marriage and inheritance were said to be customarily governed, so procuring basic sustenance required getting access to communal land. With this development, there could

be no exit for an African from the world of the customary. (1996: 50)

There are two lines of argument regarding the role of customary law during the colonial era. The traditional school of thought, [30]

Where There Is No Government

advanced by the British, suggested that customary and religious law continued in traditional form, alongside but subordinate to the law of

the colonizing power. Lord Lugard describes the arrangement as follows in his famous 1926 defense of indirect rule, The Dual Mandate: Liberty and self-development is best secured to the native population by leaving them free to manage their own affairs through their own rulers pro-

portionate to their degree of advancement, under the guidance of the British staff, and subject to the laws and policy of the administration. (1965: 94)

In this view, customary law is: strongly linked to the pre-colonial past; represents a type of self-rule; and limits British responsibility for adjudication of disputes and administration of territory. It was a brilliant administrative strategy and, as it could be justified on

cultural grounds, so much the better. An alternative view is that customary law was constructed in the context of colonization by and for the benefit of local elites empowered by

the colonizers. Martin Chanock argues that in the areas of both land and labor law in Africa, “customary” law was created to serve the interests of those recognized as leaders (older men) by the colonial power (Chanock 1985, 1991). It enabled them reclaim some of the independence and control that they lost due to colonization. They were able to use customary law to assert control over women, younger men, and children—the

limited realm over which they were given authority. Martin Chanock has observed that “those who were doing economically well within the limits imposed by the colonial regime were those who had the most interest in promoting a “customary” view of persons. A view that could

be presented and validated in customary terms” (1991: 72). Colonization not only preserved two distinct bodies of law, but promoted their application to different populations within the same country. A British citizen in any colony of the British Empire was subject to British law with a reliance on British legal precedents as defined by British case law.° Such was not the case for indigenous or so-called “native” populations. They were subject to customary law COLONIZATION AND THE MYTH OF THE CUSTOMARY

[31]

or to British law if involved in a conflict with a British citizen. As a large portion of the population was administered under customary law, it was necessary to allow for the functioning of customary courts. These were typically administered by traditional leaders or chiefs and handled everything from land to marital disputes. Although the majority of British officials accepted the system, some saw its flaws and were critical of customary or “native” courts: Ifwe could only get away from the pretence that these courts exist in the interests of the natives and realize that they exist, and, |am afraid, must continue to

exist because we cannot afford any other system, then I think we should see

that the remedy lies not in bolstering up the chiefs at any price, but in a strict

supervision of the native courts by political officers, and the provision of facil-

ities for appeals to the ordinary courts of justice. (British Colonial Office 1932)

In addition to two bodies of law and two court systems, every colonized country in Africa had two systems of landholding in the colonial era, one which was regulated by the state and the other by customary law and traditional leaders. Private and customary land tenure institutions each articulate a very different bundle of rights to land, necessitating two different control and enforcement regimes. In the colonial era, this dual system followed racial lines; natives used land, white colonizers owned it. Africans maintained rights to

land as groups, and those groups were overseen by a chief who controlled land allocation. White colonizers had their property recorded in legal documents and their disputes heard in state courts, while Africans pursued conflict resolution through customary authority figures and rarely had written documentation of their land claims. The land regulated by the state was privately held by settlers and only infrequently by Africans. The rest of the land was governed by

customary law. Although privately held land might have changed hands at independence, reflecting changes in population and pollitical fortunes, customary land was largely left untouched, still regulated by and for the collective ethnic group. [32]

Where There Is No Government

By independence, colonial policies had resulted in: (1) the erosion of individual rights (such as they were) that existed; (2) the empowerment of a cadre of local leaders; (3) the enabling of customary dispute resolution institutions; and (4) the development of land tenure institutions that are resistant to change. Whitehead and Tsikata echo the contrived nature of customary authority as a remnant of colonization: Many of the supposed central tenets of African land tenure, such as the idea of communal tenure, the hierarchy of recognized interests in land (ownership, usufructory rights and so on), or the place of chiefs and elders, have been shown to have been largely created and sustained by colonial policy and passed on to post-colonial states. (2003: 75)

At independence, colonized states faced a critical juncture. For the first time, new governments had a choice as to which type of law they would adopt and to whom it would apply. Newly independent states could decide to continue to recognize customary law or to apply one body of law to all the citizenry of the country. Few of the newly independent countries had the capacity to embark on the Herculean effort of unifying the disparate landholding institutions. Instead, an institutional lock-in occurred, and the existing, bifur-

cated, landholding system has remained intact to the present day with the existence of both private and customary lands, which are administered separately in every country in Sub-Saharan Africa except Ethiopia. In common-law African states without exception, customary or religious law (and occasionally both as in the Nigerian case) was allowed to continue. The following section details the contrasting examples of legal development in a colonized African country, Ghana, and Ethiopia, which was not colonized. Legal development in the two countries follows very different trajectories. Legal pluralism results from colonization in the Ghanaian case, while in Ethiopia customary law is incorporated into statute law as the state consolidates. COLONIZATION AND THE MYTH OF THE CUSTOMARY

[33]

CONTRASTING

CASES: ETHIOPIA AND GHANA

While colonization was important to forming the structure of property-related institutions on the African continent, we need to be precise regarding which subsequent effects, good or bad, we attribute to the colonial experience. Other forces, such as market development, the monetization of the economy, and population growth, also impacted institutional development and change. Often these were part of the colonial experience, but in the case of Ethiopia, they occurred outside of the imperial context. It is therefore very helpful to examine the path and effects of colonization on landholding institutions in two countries that had divergent experiences: Ghana and Ethiopia. Ghana was colonized early in the British conquest of Africa. Ethiopia was able to remain independent due to its political organization and its victory over an invading Italian army in the 1896 Battle of Adwa. The histories of changing property rights of each country are presented below. What should become clear in each case is that political upheaval, whether it was colonization or revolution, worked together with economic forces such as

market development and changes in relative prices to set the property-related institutions in place.

Land in Colonial Ghana

The Gold Coast colony was made a distinct administrative unit

of the British West African holdings in 1850, although not until the final defeat of the Ashanti in 1902 did the British take a direct interest in governing the colony (Kimble 1963). Land in precolonial Ghana existed at the nexus of economic, political, and religious structures. Authority was based in the chieftaincy and the control of customary lands that rested with the chiefs. Land was held by the community but distributed by traditional leaders charged with the allocation of use rights (Asabere 1994; Gyasi 1994; Kimble 1963). [34]

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The Public Lands Ordinance of 1876 was the law controlling land administration in the colony, and it allowed the compulsory purchase of African land by the British government (Parker 2000). The Ordinance mandated the compensation of owners of expropriated

land following a detailed analysis of claims to the land (Larbi et al. 2004). This ordinance allowed for privatized land to be held by British citizens and by the colonial administration. Customary land could be leased to firms or individuals for an extended time period with the possibility of renewal. A Gold Coast local elite developed among those who played an intermediary role in arranging deals between British merchants and traditional authorities who controlled the customary land (Agbosu 1990). A number of problems emerged from this system. First, due to the general lack of demarcation of land, chiefs would often make

rival claims to large tracts of land, resulting in costly legal battles. Second, the system of freehold tenure that the British were trying to institutionalize was so unfamiliar to the chiefs that they often were unaware of the nature of the agreements they were signing (Agbosu 1990). It was also clear that some chiefs were simply pocketing the money paid for concessions rather than dispersing it to the community (Hymer 1970). Land registration was introduced as a means of addressing these problems in 1883, and was implemented under the 1895 Land Registry Ordinance. However, this new statute did not turn out to be the solution that was hoped for, as merchants involved in the land business refused to pay the taxes required to fund the cadastral surveys necessary to make a land reg-

istry effective (Agbosu 1990). Throughout the colonial era, British policy reflected the tension between a need to augment the authority of the traditional rulers charged with keeping order while preventing them from gaining enough power to challenge the British. In the Gold Coast, this was particularly clear in the shifting role of the local chiefs. Official colonial policy began with the Native Jurisdiction Ordinance of 1878. This statute set the tone for minimal interference with traditional COLONIZATION AND THE MYTH

OF THE CUSTOMARY

[35]

authority structures. Chiefs could enact bylaws and judge breaches of these laws as well as minor civil and criminal cases in Native Tribunals (Firmin-Sellers 1996). However, the colonial government

reserved the right to depose chiefs, an issue that would later be used to generate support for the nationalist movement (Kimble 1963). As the African population became wealthier and more educated, the British found themselves increasingly caught between a newly forming African elite and the chiefs. For the British system of indirect rule to work, the chiefs had to have legitimacy in their communities, and repeated efforts were made to buttress their position. The 1925 Constitution granted six seats on the Legislative Council to the chiefs and established Provincial Councils (composed entirely of paramount chiefs). The Native Administration Ordinance of 1927 protected chiefs from losing their positions (though it also gave state councils the authority to decide disputes between chiefs over land held in common) (Firmin-Sellers 1996). Native Authority and Native Courts Ordinances passed in 1944 allowed chiefs to directly tax their subjects (Crowder 1968). The ultimate result of the British policy was a system in which chiefs had the knowledge of land systems on the ground without coercive power, while the colonial state had coercive power but lacked information regarding land (Firmin-Sellers 1996). Moreover, the absence of significant remuneration and supervision encouraged chiefs to act in a manner that ultimately undermined secure property rights (Firmin-Sellers 2000). Firmin-Sellers describes the

Gold Coast chiefs as “roving bandits [who] subverted both colonial and indigenous institutions, maximizing the revenue extracted from

office holding in a short period of strengthen the status of the chiefs, removed checks on their power that their population. As Crowder notes,

time” (1996). Attempting to the colonial government had had kept them accountable to “In adopting a system of indi-

rect rule [the British] buttressed up the authoritarian aspect of the power of chiefs who frequently abused it in a way that they could rarely have done in traditional society without deposition” (1968). [36]

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Riots in February 1948 in the Gold Coast colony prompted the British to begin institutional reform and to allow Ghanaians to write their own constitution. The educated elite, long overlooked in favor

of the chiefs, took this opportunity to consolidate power in national institutions. Elections held in 1951 allowed Ghanaians to take an increasing role in self-government, before the country was granted full independence in 1957 and took on the name of Ghana. Yet,

independence gave no relief from the difficulties of legal pluralism and competing claims to land. Indeed, the current struggle over changes in the Ghanaian land administration system pits traditional authorities (chiefs and sub-chiefs who often have competing and overlapping claims to land) against government efforts to rationalize land administration. These issues are discussed in greater detail in chapter S. The Ghanaian case illustrates how traditional leaders can become involved in the struggle for power and control over resources in colonized countries. For contrast, it is interesting to note what

happened with customary law and traditional authority patterns in Ethiopia, which was not colonized. In Ethiopia the parties to the conflict are different, and there is an additional distinction in the

way that law was used prior to the revolution.

Ethiopian Political Independence

The watershed event for Ethiopian property-holding institutions was not invasion by an external power, but a revolution in 1974 that brought unity to what had been a complex system of hundreds of different landholding arrangements. The multiple forms of land tenure that existed prior to the revolution were due to the various modes of production—pastoralism, agriculture, and semipastoralism—which existed in Ethiopia, as well as the lack of a comprehensive government policy on land tenure. In northern areas of the country, residents farmed on heritable plots without COLONIZATION AND THE MYTH OF THE CUSTOMARY

[37]

title and land was owned communally by lineage or by village. However, land sales were evident, even in areas where land was supposed to be communally owned, and many northerners would have considered their property rights to be private (Joireman 1996). In the south of Ethiopia, a completely different, quasi-feudal system of landholding was in place. In the late nineteenth century, tenancy was imposed on southern Ethiopia during the northern expansion in a type of regional colonization that facilitated taxation and governance. Land in the south was given away to favorites of the emperor, who then received payment in goods and services from the people who lived on the land. Private property existed only for a privileged few. The development of courts and law regarding property followed a very different path from that of Ghana. Before the Ethiopian government created courts, disputes were either resolved by village elders or taken to regional lords. In 1942 a system of courts was formally introduced. With the establishment of localized court structures,

Ethiopians could take their disputes out of the village and to an, ostensibly, impartial arbiter of the law.’ Ethiopian legal development prior to the revolution was intended to incorporate existing practices and replace them with state institutions, a technique that validated the structures in existence and at the same time consolidated the power of the state. The land law is an example of how the state tried to codify custom. The Civil Code of 1960 limited the distribution of land and the types of land contracts that would be allowed in the collective tenure areas, where according to custom land sales were prohibited (Hoben 1973), Restrictions on land alienation were fundamental to

collective tenure systems because sales would allow outsiders to have access to land that was the property of a lineage, and thereby reduce the size of lineage holdings. This customary law was wellknown throughout the country and was codified in article 1493 of the Civil Code, which prohibits an “agricultural community” from alienating its land in any way without specific permission from the [38]

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Ministry of Interior (Imperial Government of Ethiopia 1960). The term “agricultural community” was intended to be wide enough to address the customs of both collective landholding systems in the north and pastoralist communities in the south, near the Kenyan border, which also held land collectively, but for the purposes of grazing, not cultivation. The regulations made in the Civil Code were an attempt to codify the conventions of the collective landholding systems rather than to change them.* At the same time, the code was expected to supplant any customary arrangements that

might exist. Article 3347 (1) read: “Unless otherwise expressly provided, all rules whether written or not of customary law previously in force concerning matters provided for in this Code shall be

replaced by this Code and are hereby repealed” (Abbink 2005: 168). An absence of colonization meant not just the opportunity for the Ethiopian state to develop property rights outside of the context of domination, but also the absence of competing systems of law. In Ethiopia, there was no dual system of property law, but instead an explicit attempt to create public law that integrated the traditional tenure systems prior to the revolution, and then a radical unification of all landholding institutions afterward. Laws that were developed prior to the revolution were codified not to dominate, but to modernize and clarify. They applied to all citizens. Customary land tenure was recognized and integrated into law, and traditional authority structures were not given any sort of formal recognition.’ In Ghana, colonization led to legal pluralism and established factions with vested interests in the perpetuation in particular systems of landholding. In contrast, Ethiopian legal development was a process of slow modernization with the incorporation of tenure systems into the formal legal sphere and an assertion, albeit weak, of the supremacy of the state. Although local-level community mediation was always available in Ethiopia, there was no legal sphere competing with state courts. The Ethiopian Revolution of 1974 changed the systems of land tenure and adjudication that existed, but gave no purchase to “traditional or customary” land or law. COLONIZATION AND THE MYTH OF THE CUSTOMARY

[39]

AFRICAN

CUSTOMARY

LAW IN THE CONTEMPORARY

ERA

African customary law in the contemporary era continues to be malleable and dynamic, defined by those who administer it, often for their own benefit (Ki-Zerbo 2004a).'° In a 2002 interview with Human Rights Watch, a senior chief in Kenya affirmed that customary law in the current era is created and molded by today’s traditional authorities, saying, “Customary law is what I describe” (Human Rights Watch 2003:11). Gordon Woodman notes that customary law reflects social inequalities and is therefore the subject of contention. He also highlights the complexity of customary law, as its legal rules have different degrees of force. Compromise and the

promotion of social peace also play into the application of these rules in ways that can make them unpredictable (Woodman 2008). Customary law is further complicated by a cross-fertilization with statute law, and an increasing mixture of customary tenure arrange-

ments and state tenure systems, particularly in peri-urban areas. This is evident in a mingling of documentation regarding land occupation and access and in the blending of customary and public law in dispute resolution. Though not universally supported by all politicians and citizens, customary law remains and represents a separate allocation and enforcement regime for property rights over approximately 75 percent of the land area in Sub-Saharan Africa (Augustinus 2003). It is

informal, pervasive, and in most places uncodified. One notable exception is South Africa; customary law was codified in the apartheid era for an explicit political purpose. Both customary law and customary leaders were used during the apartheid era to control black South Africans and to keep them in homelands, a policy of indirect rule echoing that of the British in colonial Africa. Despite this inauspicious history, when the time came to make a decision to incorporate customary law and leaders into the South African constitution, most blacks supported the decision to keep them, as they viewed customary law and leaders as representative of group [40]

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identity (Oomen 2005). If there were any place where one might

expect traditional authority to be rejected, it would be in South Africa, where the complicity of the traditional authority structures during apartheid was oppressive to so many. Yet traditional leaders are still seen as having value to the community, positively reinforcing cultural identity and resolving small disputes in a prompt manner. Whether Africans are entrapped within customary law and struggle against it or are freed by it to express their social and economic interests depends on which group of Africans we are discussing, as the legal recognition of customary law and tenure systems creates winners and losers with different interests. Because it applies to people as members of ethnic groups and not as citizens, customary law constructs a separate arena of authority beyond or outside of the state, though implicitly recognized by it. CUSTOMARY

VS. STATUTE

LAW: THE WINNERS

AND THE LOSERS

There are a number of advantages that can accrue to a community from customary systems of property rights. A rich literature documents the flexibility of customary land and resource arrangements. Anthropologists have praised the ability of customary systems to adapt to changing family composition (Haugerud 1989; Ensminger

1997). Flexibility of institutional structures can also be helpful in controlling common property resources such as forests, pasture land, and water (Benjaminsen and Lund 2002; Toulmin et al. 2002; Woodhouse 2003). Ribot, however, has noted that the use of cus-

tomary institutions in controlling these resources further accentuates the divide between those governed by customary and those

governed by statute law (1999). Within a community, those who gain the most from customary systems of land tenure and authority are those who control it. “Authority in land whether vested in the chiefs, or in the government officials and political leaders, can in turn, lead directly to private economic benefits for these actors, derived from land COLONIZATION AND THE MYTH

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accumulation, patronage and land transactions” (Toulmin and Quan 2000). In areas where land has a higher value, it is especially obvious that customary land ownership patterns empower and enrich those who make allocation decisions. Because customary law is unwritten and customary authority positions can be lucrative, they are often the subject of conflict within a community. In 2008, struggles over succession in a Ghanaian chieftainship resulted in 20 deaths as well as a greater number of wounded people (International Committee of the Red Cross 2008). The violence surrounding these struggles is evidence of the desirability of chieftainships. Male members of an ethnic group also gain from customary law, as it ensures their continued access to land regardless of their

economic circumstances. They, like the chiefs, have a clear and identifiable economic benefit from membership in their lineage and/or ethnic group. Men may also find their positions within the family and community bolstered by the presence of customary law. Men gain specific benefits from customary law that are not available to them as citizens under statute law. Those who gain from the continuation of customary law into the future are those who stand to gain economically from it: chiefs, leaders, those in control of land allocation, and men who can expect

to receive access to land indefinitely because of their recognized membership in the group. In addition to economic gains from customary law, community members may also experience positive non-economic benefits, such as the affirmation of identity. There is a Sotho saying that “a chief is a chief by the people; a people are a people by the chief” (Oomen 2005: 79). Indigenous leadership embodies group identity. Although identity affirmation is not quantifiable, people articulate it as a reason to keep customary leaders, even when their administrative usefulness may be doubtful.

Customary law was formed to organize and control ethnic groups; it is rooted in place and ethos, Integrating or blending customary law into statute law, which is based on notions of citizenship, can pose tremendous problems. Conceptions of citizenship [42]

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that bring with them ideas of equality across national space and territory are at odds with customary law. Customary law disadvantages those who have limited ties to the community either because they are not members or because the community does not value their membership. Consider the persistent problem of land rights for migrants. Although virtually every constitution in Sub-Saharan Africa enshrines notions of citizenship that transcend ethnicity and region, migrants within a country who seek to settle in rural areas still face tremendous difficulties in either purchasing or renting land on which to farm and build housing (Isumonah 2003; Ki-Zerbo 2004b; Network 2006; Nyambara 2001; Peters and Kambewa 2007; Spierenburg 2004). Migrants can be an unpleasant addition to a community if they are fleeing civil conflict, as is often the case, or have no

resources to bring into the community. There are other “migrants” who are considered outsiders and are excluded from land ownership or use even after living in communities for generations, or who are

threatened with the loss of the land rights they have attained (Boone 2009; Jackson 2007).'! These people might share the same language, religion, and other cultural characteristics as the indigenous com-

munity, yet are considered outsiders and are not given access to land no matter how long they remain. Isumonah notes the prevalence

of migrants in Nigeria and the potential for violence where access to land defines who is in the ethnic community rather than the community defining who gets land (2003). Again we see the overlapping of identity with property, in this instance, defining the boundaries of the community. We might think of other migrants as indigenous entrepreneurs, who move to take advantage of economic opportunities or bring resources with them to invest in a community. Entrepreneurs may face difficulty in getting land for businesses because they are of the wrong ethnic group. As citizens of a country, migrants should have the same rights to property as other citizens, yet customary land tenure systems by their nature exclude those who are not autochthones, or “sons COLONIZATION AND THE MYTH

OF THE CUSTOMARY

[43]

of the soil” In fact, it may be easier for foreigners to access land for economic development than nationals in their own country who are not of the right ethnic group for a particular area. Any list of losers from customary land tenure arrangements has to include migrants who move within their own country but are thwarted from owning land by customary land ownership patterns and authorities. The second, and larger, group of losers from customary land tenure systems and their corresponding authority structures is women. Women in Sub-Saharan Africa face a distinctive social dilemma. Because of their labor, they are the mainstay of agricultural economies, producing 80 percent of the food crops (FAO 2002: 11). Yet women do not have autonomous rights to customary land. Although they have recognized use rights to land, this “bundle” of property rights is different from the autonomous rights held by men. Once married, women do not co-own marital property, and they have difficulty retaining their homes and movable possessions at the death or divorce of a husband.” There are some encouraging exceptions to these problems of property rights in West Africa, where women are able to maintain some rights through their natal lineages (Tsikata 2007). There are also some countries, Ghana, Mozambique, Namibia, and Ethiopia among them, where efforts

have been made to give women legal protection within statute law of property rights not traditionally afforded them (Parliament of the Republic of Namibia

1996; Teklu 2005;

Ghanaian

News

Agency 2009; Integrated Regional Information Network 2003). That said, in much of southern and eastern Sub-Saharan Africa,

women have not legally shared the same protections of their property and inheritance rights as men, or as women in other parts of the world. Women face difficulty in representing themselves ecqnomically and legally. For example, they may be unable to sell their own produce or buy new fields in which to grow crops.’ In Rwanda, women were not recognized as full citizens until the 1991 constitution, having previously been considered legal minors. If aRwandan [44]

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woman wanted to buy a plot of land, a building, or even a home, she had to either do so in the name of a male relative or establish a corporation that could act as a legal person for her.'* In Swaziland, women are still legal minors and face similar challenges. Under customary law, women have secondary rights to land, meaning they can cultivate land because they have married a man who is of a particular kinship group or because they have children who are seen as belonging to his kinship group (Bikaako and Ssenkumba 2003; Wanyeki 2003; Yngstrom 2002; Whitehead and

Tsikata 2003).'* Because women marry and go to live with their husband’s family, they are not viewed as having membership in their own lineage, but are viewed as members of their husband's lineage or

as acommodity.'° One women’s organization in Uganda, the Mifumi Project, developed the slogan “Women Have No Home’ to illustrate the difficulty that women face because they do not belong to any kin-

ship group. In most parts of Sub-Saharan Africa, the idea of co-ownership of marital property is an alien one, a Western import occasionally recognized in statute law, but rarely enforced. Women are not supposed to own property but rather, under customary law, they are (or were) property. The idea of a woman acquiring property in her own name during marriage is incendiary, as it implies that she is not committed to her husband or his family. This point was driven home during

interviews I conducted on the new land law in Uganda in 2006. In an interview with a woman who was the regional gender officer for her part of the country, a fairly elevated position and one in which she was required to assist women in defending their property rights, the interviewee reported that “women cannot own land and have stable marriages.””” In the few African countries where there are laws providing for the co-ownership of marital property, such as the family home or other assets, these laws have proven very difficult to enforce because they are incompatible with cultural practices. In another interview from Ghana, I was told that “land has the face of

a man” (Kuma 2006). COLONIZATION AND THE MYTH OF THE CUSTOMARY

[45]

Customary law also controls the inheritance of land and property. Under customary law, women do not inherit from their husbands, daughters inherit less than sons and often nothing at all. In many polygamous households, if the head of household dies, any childless wives will receive nothing and will have to return to their families with only their clothing (B 2005; Bikaako and Ssenkumba 2003). Because these women have not provided the lineage with heirs, they have no status and no further link to any member of the lineage and therefore are refused access to lineage land on which to farm or live. Women with children are in a slightly less precarious position. They are still not regarded as members of the lineage; however, if they are taking care of minors, their property rights will

sometimes be respected (B 2005; Strickland 2004; Tripp 2004). This is true even in Islamic areas, despite the fact that under Islamic law, women should inherit a portion of their parents’ estate. In northern Nigerian states, where sharia law is recognized, women

still do not inherit their share of land and property as dictated by sharia law. According to the Maliki school of sharia law, which is dominant in Nigeria, some adaptation to preexisting customs must

be permitted because Islam came by conquest (Abdullah and Hamza 2003). When it comes to women’s property rights, customary law trumps religion. Some studies have argued that inheritance rights for women are not a problem and that women are able to negotiate customary law and maintain usufruct rights to land through social networking

(Khadiagala 2002; Rose 2002). However, these studies contradict the weight of evidence emphasizing the vulnerability of women’s property rights after a husband's death and the difficulty that women have in retaining movable property, homes, and land access. Awoman’s loss of property upon the death of her husband is not only,a human rights issue; it is also an economic problem. As women are the ones cultivating the land to provide food for their families, their loss of land, livestock, and movable property has economic consequences for their children and for society as a whole. [46]

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Women’s property rights in Sub-Saharan Africa are inequitable by Western standards, but the degree to which this becomes economi-

cally problematic depends on the demand for land in a given area. When land values increase, it is easier for traditional leaders to find

themselves unable to accommodate all requests for land to farm. Migrants, divorced women, and women in general are most likely to

face exclusion. Members of these groups are more likely to have their land encroached upon or taken, often by relatives. When we discuss winners and losers under customary law from a property rights perspective, it is clear that women and migrants suffer. Their property rights are undefined and insecure because they have tenuous or nonexistent ties to the group controlling land. This is particularly problematic, as clear property rights are critical to economic life and the well-being of families. Uncertainty and lack of autonomous property rights for women is especially damaging to both the rural and urban economies of Africa. Women are the farmers and the food producers in the rural areas of common law Africa (Goody and Buckley 1973). In urban areas they are expected to contribute to the livelihood of the family. For both urban and rural women, well-defined and enforced property rights are critical to the economic engagement of women.

CREATING

NEW PROPERTY

RIGHTS

Hernando de Soto has argued that the “formalization of informal property rights” in poverty stricken areas around the world empowers people by giving them access to capital through titling. Title allows them to mortgage or sell their property. Yet, de Soto’s prescription of “formalizing the informal’rules that exist could have potentially disastrous consequences for women where customary law regulates access to land and where the co-ownership of marital property is not legally recognized or enforced. It could effectively alienate women and migrants from access to capital. ‘This COLONIZATION

AND

THE

MYTH

OF THE

CUSTOMARY

[47]

was precisely what occurred in the titling of land in Kenya in the 1950s. Under customary tenure, Kenyan women had use rights and “considerable management control over plots allocated to them by household heads.” When land was registered in the name of the male household head they lost that control (Ensminger 1997). This appears to be happening now in South Africa with titling efforts in customary areas (Cousins et al. 2005S).

New laws designed to formalize informal property rights must give attention to both customary law and women’s property rights, but law alone is not the solution, unless it is combined with en-

forcement. Effective law enforcement assumes that the state is capable of penetrating into rural areas where conflict between statutory and customary law will be most pronounced. It also assumes that there is an effective and independent judiciary. With a few exceptions, state capacities in Sub-Saharan Africa do not meet this standard. Property law that is most conducive to economic growth is that which develops organically (Anderson and Hill 2004; de Soto 2000). Custom and history in Sub-Saharan Africa have created a set of circumstances in which the most beneficial types of property rights are unlikely to develop on their own due to the presence of customary law. Because of its origins and malleability, customary law does not fit well in the category of organically developed law or the informal property rights that are viewed as necessary for economic growth.

EVALUATING

SOCIAL WELFARE

In spite of these considerations of equity, strong arguments have been made for the benefits of customary law, land tenure systems, and customary adjudicatory mechanisms. Explicitly undermining customary leadership and tenure would have significant social costs. Given the pressing health and education demands on African states, [48]

Where There Is No Government

there seems to be little reason to divert resources in order to interfere with a customary law system that is working well in a land-abundant setting. In these areas, state mechanisms to regulate the registration

and transfer of land are unlikely to be utilized effectively or enforced because individuals feel their security in ownership or occupancy is sufficiently robust. However, no country has abundant land resources in all areas, especially not in capital cities, which invariably have shantytowns and slums that house people without the money or connections necessary for secure land access. Moreover, there is an increasing mix between customary tenure arrangements and

modern state-administered tenure systems, particularly in periurban areas. It is in these spaces, where tenure systems and authority structures mix and demand for land tends to be high, that the two systems clash most visibly. Where land is scarce and population densities are higher, land allocation is contested, conflict over land is more frequent, and

resort to the courts for dispute settlement and recognition of land transfer is more likely. Indeed, there is evident and abundant conflict over land in common law Africa and this, along with the strong economic argument for titling and privatization for the purposes

of poverty alleviation presented above, is impetus for change. Additionally, the equity issues of customary law and land tenure systems have not gone unnoticed by women’s groups and lawyers associations across the continent, and this creates a perfect storm of opposition to customary law and land tenure arrangements that is grounded in practical, economic, humanitarian, administrative,

and equity concerns. It is worth considering by what criteria we might judge land tenure systems or customary authority institutions. When and where might it be justifiable to try to explicitly undermine customary leadership and customary tenure? This is a particularly important question to consider because any change in systems of property rights produces an opportunity for economically and politically well-placed people to take advantage of the shifting rules.’* COLONIZATION AND THE MYTH OF THE CUSTOMARY

[49]

It is appropriate to consider the definition and the defense of property systems as a unified social institution that includes the rules of customary land tenure and the authority structures which enforce it. The criteria used to assess customary institutions are articulated in chapter 1; they are: predictability, accessibility, equity, effectiveness, and restraint.

Traditional authority structures and conflict resolution mechanisms are strongest in the areas of accessibility and effectiveness and weakest in terms of equity and predictability. These are generalizations, and while it is possible to find traditional dispute resolution systems that are inaccessible, as indeed I have found in my work in Kisii, Kenya, this appears to be an exception (Henrysson and Joireman 2009). They are often far more accessible than national courts, as they are located in communities and often involve the communities or operate in public. For example, in many parts of South Africa disputes are heard by chiefs in public settings where community members can chime in with their opinions of the character of the disputants or information relevant to the case (Oomen 2000b). Traditional institutions are able to effectively enforce and adjudicate most property conflicts and only rarely lead to decisions requiring appeal to national court systems (thus they would rank medium high). However, as noted above, traditional land tenure institutions are

not equitable in their distribution of land or their adjudication of disputes, as they favor the interests of men over women and autochthones over migrants, even though both are citizens of the same country (low). These institutions also tend to be unpredictable. Traditional leaders and conflict resolution mechanisms usually make decisions that are compromises rather than a clear victory of one party over another in a dispute, and as Woodman noted, the rules that are used do not always carry the same force. So, for example, traditional leaders may decide not to grant land to someone who would normally receive land in the community ifhe or she is viewed as a bad character or a troublemaker. While this type of decision [50]

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making can preserve the integrity of the community, it renders traditional conflict resolution systems unpredictable in terms of the factors that are taken into consideration and the decisions that are made. Outcomes are then unpredictable, as compromises can cut any variety of ways and there is not a clear and consistent set of evaluative criteria.

‘Trying to assess traditional institutions on the basis of the final criteria, restraint, is difficult. While traditional dispute resolution mechanisms are unlikely to assess a death penalty (or to have it carried out without contestation), they often resort to corporal punishment as a penalty. Barbara Oomen describes the delight of onlookers watching thieves and other offenders punished by the administration of lashes imputed by a chief resolving disputes (Oomen 2000a: 24). A lack of restraint may play into the effectiveness of traditional dispute resolution systems. Immediate and visible penalties may lend credibility to traditional dispute resolution systems and to the leaders who work through them; however, their use is unpredictable and therefore would receive a moderate ranking in the assessment rubric. Although it will not be attempted here, the land administration and dispute resolution systems of the government in each country could also be subjected to the same set of assessment measures, and these institutions would rank high in some areas and found wanting in others. Differences in the traditional and state institutions would indicate the reasons that people would choose one over the other or “forum shop.” Chapter 6 includes a comparative assessment of government dispute resolution mechanisms.

WHITHER TRADITIONAL AUTHORITY

STRUCTURES?

What can we learn from this assessment that might be helpful for understanding the role of traditional leaders and customary law in the contemporary African setting? The first major lesson is that COLONIZATION AND THE MYTH OF THE CUSTOMARY

[51]

there are conflicting authority structures that are delivering different bundles of social goods. In this context, I would argue that if traditional leaders want to maintain their authority, they must reconsider their roles. They must articulate an institutional identity that is not based on representing a single ethnic group or a geographically bounded set of interests, but instead a particular set of societal concerns that may have importance beyond the locality. For example, they need to articulate their roles not as leading or constructing the legal parameters for their ethnic group, but as preserving and protecting the land (or forests or water resources), the cultural identity

of the group, and even the interests of the children as the epatimony of all citizens of the country. In a similar way, traditional leaders must promote the interests of whole society—not just the men. Iftraditional leaders do not begin protecting and advocating for the economic and social well-being of women and children in their communities, they will find themselves slowly sidelined by alternative sources of societal power, as women’s groups begin to challenge their authority through legal action and legislation. Constitutional standards of equity matter. If customary leaders and customary law are to remain relevant, they must align with constitutional standards of equity and citizenship. Increasingly in Sub-Saharan Africa, we are seeing constitutional challenges to customary authority based on citizenship rights. The Bhe case in South Africa is one example.’ In this case, the limita-

tion of land rights in communal tenure areas to men was challenged. In Uganda, women have articulated their demand for land in terms

of constitutional guarantees of equality of citizenship and equality of economic rights. Lastly, traditional leaders and customary dispute resolutions systems do have a clear advantage in their ability to provide a cheaper and more accessible source of land allocation and conflict resolution than state institutions in most contexts. They are likely to be accommodated rather than undermined in any reform of property rights and conflict resolution systems if they allocate land and resolve [52]

Where There Is No Government

conflicts in a manner that aligns with constitutional concerns for equity and citizenship rights. This chapter has set the context for the following chapters, which will address what happens when the state fails to enforce property rights. Customary law and leaders already exist as a set of institutions supplanting the state in the allocation of property rights and the enforcement of property regimes that are, in most cases, outside of statute law. It is vital to understand customary law and its role in common law Africa in order to understand (1) that property rights

are already contested; (2) that there are multiple enforcement regimes already in place enforcing different systems of rights; and (3) that significant authority structures exist in local communities

that are an alternative to the state and may be viewed as having more legitimacy than the state due to both their historic nature and their economic importance.

COLONIZATION AND THE MYTH OF THE CUSTOMARY

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CHAPTER

3

“Under the Circumstances, We Do What We Can” Entrepreneurial Bureaucrats and the

Allocation of Property Rights

I n rural communities in sub-Saharan Africa the reach of the state is minimal. The lack of state strength in the periphery creates an unmet demand for the enforcement of civil matters from simple contracts to property and inheritance law. These are issues that deserve greater academic attention for two compelling reasons: (1) clearly defined and enforced property rights contribute to economic

growth; and (2) property rights that are not well-defined and defended often result in disputes among individuals and communities. These disputes always contribute to social strife and can become violent (Barasa and Kusimba 2007; Gyezaho et al. 2007;

Mugwang’a 2007; Wily 2004). This chapter explores the role of entrepreneurial bureaucrats in contract enforcement and dispute resolution regarding property. It proceeds in five sections, beginning with a definition of entrepreneurial bureaucrats, followed by a discussion of how and why they move beyond their areas of responsibility to become engaged in property issues. In the third section of the chapter are two

examples of entrepreneurial bureaucrats from East Africa: Local Council members in rural Uganda and chiefs and elders in Kenya.’ In both of these examples, government officials operate outside their official areas of responsibility to enforce contracts and resolve conflicts over property. Following these examples, the provision of services by these individuals in terms of their ability to increase social welfare will be assessed against the five criteria established in chapter 1: predictability, accessibility, equity, effectiveness, and restraint. The chapter concludes with a discussion of the broader implications of entrepreneurial activity by bureaucrats for political and economic development.

BUREAUCRATIC

ENTREPRENEURS

Bureaucratic entrepreneurs are government officials operating out-

side the limits of their authority. They are state representatives using their official title and local recognition to establish and exert authority beyond their designated responsibilities. In some cases they are acting in areas explicitly forbidden to them by law; in other instances they are operating in a grey area, filling a local need unmet by state institutions. Individuals whom I refer to as bureaucratic entrepreneurs are not seeking to take advantage of weak states to build their own alternative political fiefdoms or political agendas.” Rather, they have limited goals and use their formal positions within a weak state to meet specific and individual needs. Their motivation tends to be economic and/or social rather than political. They may be seeking to gain personal wealth and status, to fulfill obligations to informal personal networks of family, friends, and neighbors, or, altruistically, to resolve community conflict and facilitate economic activity.

'

Because bureaucratic entrepreneurs derive their power from the state, they are dependent on the status quo for their positions and are unlikely to challenge existing power structures. They flourish [56]

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in weak states, especially in areas that are politically unimportant and removed from power centers. Bureaucratic entrepreneurs differ

from political entrepreneurs, who are typically trying to establish networks of power that compete with the government. Political entrepreneurs usually have an interest in controlling areas with valuable resources or powerful constituencies. Bureaucratic entrepreneurs thrive in areas that are not particularly important. In any given community in the developed world, there are a plethora of representatives of the state in a variety of forms and at various levels in the hierarchy of the state: city planners, teachers, mayors,

driver's license bureau officials, and county clerks are all employees of the state. A thick fabric of government institutions envelops daily life. Not so in many parts of Africa, where state representatives are few. Postal workers, teachers, police, and members

of the local

administration are typically the visible government officials in populous African cities and towns, but in many villages even these government officials are absent. The only obvious agents of the state are teachers, health services employees, agricultural extension agents,

and an occasional police officer or member of the armed forces. For people living in remote settings, formal property rights adjudication mechanisms may not be easily accessible. Since people still need their property rights enforced, whether or not the formal institutions tasked with enforcement are present, they will seek second-best or suboptimal solutions (Rodrik 2008). The power held by bureaucratic entrepreneurs derives from the thin presence of the state in many areas of Sub-Saharan Africa. There are two very different lenses for examining the relationship between the state and local communities in rural Africa. One is to look from the center to the periphery, tracking the strands of state influence stretching out from the capital to the countryside in the form of services. An alternative lens looks from the periphery to the center for the services or public goods that are desired. In rural Africa, this second view of the state is characterized by absence. Citizens needing state services search for representatives of the state, “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

[5/7]

who are not always present. This affects people's lives in many ways—from the lack of education and health services to the difficulty of receiving mail sent by post. Rural areas are characterized by both this lack of state services and by greater social cohesion. Absence of the state and social cohesion are linked phenomena, as the absence of the state increases the influence of social norms vis-avis formal law. In rural areas around the world, low population densities combined with repeated interactions between individuals over years, or even decades, allow for the development of institutions based on trust and reputation. The web of relationships that knits people together creates social sanctions and collective memories, which

play a role in bounding the actions that an individual can take. Social norms are stronger in rural areas and less likely to be violated as the ability of a person to escape the consequences of norm violation is reduced. Moreover, a smaller and more dispersed population means that government services are limited.

NORMS

AND

LAW: CUSTOMARY

VS. STATUTE

In the realm of legal theory there is broad agreement regarding the interaction of social norms and public law. Norms may suffice for small communities, families, and those with face-to-face contact,

but larger networks of interaction require more formalized mechanisms to mold and constrain behavior. Max Weber (1968) defined norms as rules regulating conduct, and law as the formal rationaliza-

tion of rules that brings predictability to modern society and enables capitalism. H. L. A. Hart similarly argued that primary rules, those that govern conduct, will suffice for interactions between family members and kin groups. However, he too posits that secondary rules governing contracts, including rules of definition and adjudication, are necessary to deal with uncertainty and inefficiency as an

economy expands (1997).‘ Hart’s concept of primary rules is loosely [58]

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synonymous with Weber's idea of norms—both imply obligation and prohibition. These ideas exist alongside the literature in anthropology and economic history that reports a limitation in trade among the kin group or other small community until the presence of rules governing contracts can be enforced more broadly (Greif 2006; Landa 1994). Indeed, North and Thomas have argued that state provision of contract enforcement is a pivotal historic moment, as it allows members of a state to expand their economic activities beyond

the limited groups that would be protected by norms (North and Thomas 1970). These approaches to law suggest a trajectory of time in which once the state is present, social norms are no longer necessary for contract enforcement. Additionally, North and Thomas imply that social norms are replaced with law once the state is present. In the African context law exists, but so do social norms. There has been no

replacement of social norms with law. Moreover, in some parts of the continent, social norms, as articulated in customary law, and

statute law conflict.® Conflict between social norms and statute law is particularly evident in the area of property rights. Although the discussion in this chapter so far has been theoretical, the importance of property rights demands a shift to the empirical because of the number of people in Sub-Saharan Africa engaged in agricultural production. LAND AND

LIVELIHOODS

The large percentage of the workforce engaged in agriculture in SubSaharan Africa makes access to land particularly important across the continent. Land access means the ability to provide a family with food as well as to engage in production for the market. Table 3.1 identifies the percentage of the workforce engaged in agriculture in Ghana, Kenya, and Uganda and for the continent as a whole.

Access to land is access to a livelihood. Critical services such as the enforcement of contracts regarding land transactions and the “UNDER THE CIRCUMSTANCES,

WE DO WHAT

WE CAN”

[59]

SECTOR IN\ AFRICAN ECONOMIES 3 1. THE “AGRICULTURAL § Table Be Agriculture as a Percentage ofhe er D Gress eceee

Percentage ofthe Workforce EE

in peace

30

75

Ghana

35

$5

Kenya

23.8

All of Africa

oe

Uganda

75 80

statistics comeen the CIA World Factbook aeeel May 25, 2009. Statisticsi ae c Hoaividual country as a whole are from the 2005 Commission on Africa Report.

resolution of disputes are public goods, the demand for which is driven by communities. Because state institutions are insufficiently provided and do not meet the demand for contract enforcement, citizens turn to “suboptimal” enforcement measures.° While some informal dispute resolution may occur through customary channels, bureaucratic entrepreneurs provide an additional path for settling disputes and verifying contracts. Local officials embedded in the community act in an entrepreneurial fashion, exercising power out-

side of their official responsibilities and filling the legal void. Entrepreneurial bureaucrats operate in a grey area—somewhere between second-party enforcement mechanisms (social norms) and the third-party enforcement of sanctioned government channels. The absence of the state in critical areas creates an opportunity for those who are recognized representatives of the state in one area to use that affiliation to meet local needs, out of goodwill or for payment. The following section will flesh out this concept of entrepreneurial bureaucrats and will illustrate how they use their formal office to extend influence and act beyond their official duties. These examples are drawn from fieldwork conducted in two rural locations of Kenya and Uganda.’ The work was conducted between 2004 and 2007 and consisted of interviews with citizens, government officials, and representatives of nongovernmental organizations (NGOs), as well as a survey of court cases. A complete list of interviews is

included in the appendix. [60]

Where There Is No Government

UGANDA:

DECENTRALIZATION

AND THE ROLE

OF LOCAL COUNCILS

Prior to the colonization of Uganda, the Baganda kingdom con-

trolled much of the territory of central Uganda. The British defeated the kingdom in 1894 and occupied the entirety of what is now Uganda. Great Britain administered its colonies through indirect rule and therefore sought the cooperation of the Bagandan king (the Kabaka) and Bagandan elites. The 1900 Buganda Agreement allocated land to indigenous notables and relegated those farming the land to secured tenancy, creating a system called mailo, which required peasant farmers to pay yearly rents to absentee landlords. The compliance of tenants was, however, not always assured, and

trouble with the system began during the colonial era. Uganda became independent in 1962 with many of the questions regarding land unresolved.’ In 1975, in an effort to deal with conflict over the mailo lands, Idi

Amin’s regime implemented the Land Reform Decree, which declared all the land in Uganda to be public property under the control of district land boards and, ultimately, the central government. The Decree turned the mailo land certificates into fixed-term leases from the central government, providing security to tenants on mailo land, but angering the landlords and ultimately failing to resolve the problem. Conflict over mailo land was one of several issues from the colonial era and the years of dictatorship that led to confusion over property rights and limited economic growth. However, civil conflict prevented any major property rights reform until the 1990s. Yoweri Museveni, rising to power through an insurgent move-

ment, took control of the country in 1986 and brought both stability and reform to the Ugandan political system. Museveni's assumption of the presidency opened a political space for changes to both local governance and land administration. As planning for changes to the land tenure system went forward, researchers “UNDER THE CIRCUMSTANCES,

WE DO WHAT

WE CAN”

[61]

were invited to carry out field surveys to set priorities for reform. The studies resulted in several goals: 1) the reformed land system should contribute to the economic development of agriculture and of the nation; 2) land administration should be flexible in the transfer of land to maximize economic efficiency; 3) the system should protect access to land for people who have no income earning possibilities outside the agricultural sector; and 4) the land tenure law should facilitate the evolution of land ten-

ure toward a single, uniform and efficient system for the whole nation (Makarere Institute of Social Research and Land Tenure

Center of the University of Wisconsin 1989).

Museveni also restructured the bureaucracy of the Ugandan state with the goal of decentralizing governance. During the war leading up to Museveni’s takeover, his National Resistance Movement (NRM)

established Resistance Councils (RCs) in villages that they controlled. Resistance Councils were empowered to settle local conflicts, including those related to land. The intent was to provide more effective and immediate solutions than having every dispute end up in the Magistrate's Courts (Republic of Uganda 1988). In the early

years of NRM leadership, before the 1995 constitution, RCs were established in every Ugandan locality. As the experience of the war faded, RCs evolved into Local Councils (LCs), which are now the

lowest level of bureaucratic representation of the state. LC members are elected by universal suffrage, and LCs have more limited powers than the RCs, although they remain the critical element of both government control and citizen voice in the countryside. Local Councils are divided into five different jurisdictions: LCI

(village); LCII (parish); LCIII (subcounty); LCIV (county); and LCV (district). LCI officials (and the chairman of the Local Council in particular) became key agents in the resolution of local disputes, including those related to property. In addition to dispute resolution, [62]

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LCI officials act as the lowest level of government representation in more mundane matters such as certifying residency and ownership of livestock (Francis and James 2003). The 1995 Constitution called for the creation of a new national land law to sort out uncertainty regarding which sorts of land tenure would be recognized and how land would be administered. In 1998 this demand was met when the Ugandan parliament passed a statute, the Land Act, which provided mechanisms for titling and transfer of land (both customary and freehold), a streamlined system for the resolution of land disputes through land tribunals, and a system for the administration of land."° At the community level, the Land Act put in place new mechanisms for dispute resolution and legally removed LC officials from both the adjudication ofland disputes and oversight of land contracts. The Act kept a decentralized model but shifted the management of land from elected politicians (the Local Council members) to the civil service and appointed citizens through the creation of new institutions at the

parish level (Land Committees) and district level (Land Boards). The law explicitly prevented people from simultaneously holding a LC office and being on a Land Committee (Republic of Uganda 1998, Article 65)."' It institutionalized mechanisms that placed power over land matters in the hands of appointed citizens and eliminated control over land from locally elected politicians who make up the LCs. Additionally, it created institutions for land management and dispute resolution that were accessible and responsive to local concerns. Making these important changes in law was a tremendous political struggle, foreshadowing the subsequent difficulties in implementing all of the new mechanisms for land administration (McAuslan 2003). Despite the fact that the Land Act was passed in 1998, Land Tribunals

were not established throughout Uganda until 2004, and were dissolved again in 2007 due to a conflict between the Judiciary and the Ministry

of Lands, Water and the Environment over funding (Masalu 2007). Although local land administration offices staffed with civil servants are present, Land Tribunals are still not fully functioning. In “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

[63]

spite of changes creating local, decentralized mechanisms for the formalized transfer of land, informal contracting continues apace throughout the country. Informal land transfer contracts rely on LCI officials to give them quasi-official recognition (Deininger et al. 2006; Khadiagala 2001). LCI officials oversee land transactions,

charging fees for their services in this matter, as they do for the discharge of their other responsibilities (Francis and James 2003). Tororo, Uganda, is located in the far eastern part of Uganda, just

along the border with Kenya. The area is populated by the Japadhola and Teso, with a mix of ethnic groups in the urban areas. Tororo district has a population density of 329 people per square kilometer, with some commercial farming projects as well as subsistence farming and the Tororo Cement Factory (Ugandan Bureau of Statistics 2002). Tororo is politically insignificant and poor. Land in the area is held through customary, communal tenure in the countryside. In the towns, land is leased on a long- and short-term basis and can be

purchased as freehold. It is possible to lease, buy, and sell customary land in the rural areas. People in the Tororo area engage in land transfers with the input of entrepreneurial bureaucrats who oversee their transactions. Though this is not a process recognized in law, those who use it claim no need for the formal titling and land transfer process, noting “when it comes to customary land the transactions are done locally—seen to by the LCI officials” (Akabwai 2006). A focus group interview revealed that people in the area were confident that land transactions overseen by the LC officials would be recognized and respected (Women’s Guild of Tororo 2005). They also reported that the transaction costs involved in the informal process are much lower than those incurred by following the formal process, which is more costly in terms of fees paid and time spent in government offices. LCI engagement in the land transfer process is so common that the Tororo District Land Officer (a civil servant) stated that the LCI chair (a politician) had to be present for a land

transfer (Oadi 2006). [64]

Where There Is No Government

In a different area of Uganda, Khadiagala (2001) reported that LCI officials insist on witnessing land transactions to guarantee that the person selling the land is the legal owner. She also noted that necessary informal payments to LCI officials for adjudication of land disputes make the LC courts more expensive than Magistrate’s Courts—the courts of first instance for land cases.'? Similarly, Adoko and Levine have also identified the role played by LCI officials in facilitating land transactions in Apac District of Northern Uganda (2008: 111-112). As local councillors become involved in land transactions, they serve a gatekeeping function above and beyond their responsibilities under law. They are “standing-in” for formal mechanisms of land transfer that exist under the new Land Act—operating outside of their formal roles and adjudicating disputes that, according to legal statute, should be heard in court. Ugandans who were interviewed do not appear to view this expanded role of Local Council politicians as an issue of concern; for them, LC officials are simply the representatives of the state. However, others have criticized the expanded activities of the Local Councillors. Khadiagala (2001) has noted that LC officials are em-

bedded in communities as members of families and social networks and often resolve disputes in ways that favor their friends and relatives rather than following the letter of the law or their official responsibilities. LC officials played a role in land transactions before the Land Act, and LCI officials are the first contact for many community problems. However, when they become involved in land transactions they are operating outside of their formal area of responsibil-

ity with several consequences: (1) the administration of land is in the hands of politicians rather than civil servants, making it more susceptible to corruption and ad hoc decision making; (2) government efforts to formalize the landholding system through the allo-

cation of recorded titles are impeded; and (3) as land values rise, this informal system will become insufficient for security of tenure. “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

[65]

Yet, people continue to turn to LCI officials to adjudicate disputes and verify contracts because they are accessible representatives of the state.

KENYA:

PROPERTY

DISPUTES AND THE

PROVINCIAL ADMINISTRATION

Kenya has not had a major civil war in the post-independence era. Its institutions have more vestiges of the colonial era than Ugandas, and local administrative officers in Kenya carry titles such as “chief” and “assistant chief” in spite of the fact that these are civil service positions rather than customary offices. In Kenya after independence there was an intentional elevation of the civil service over politicians in local governance. The Provincial Administration (composed of government-appointed civil servants) was empowered to run the countryside because it was thought to be the best

equipped to implement policy (Widner 1992: 70-73). Among the key tasks of the Provincial Administration are maintenance of law and order, monitoring and appraising of government officers in the field, dissemination and interpretation of government policies, and the prevention and detection of crime (Ministry of State for Provincial Administration and Internal Security 2009). In rural areas, elders and chiefs historically played a large role in resolving disputes regarding property. In the past it was common in rural areas for the elders to gather the household and the surrounding households at the disputed area to resolve the land conflict while they ate a meal prepared by the women of the household (Botara 2006; Elders group 2006). Ifthe elders (who are not civil servants) were not able to resolve a dispute, people would take property conflicts to the chief and the assistant chief, members of the Provincial

Administration (PA). At the apex of the PA in each district was (and still is) the district commissioner, who could also get involved in resolving property disputes. [66]

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This system was established during the colonial era, and although the independent Kenyan state maintained the same structures, the responsibilities of these civil servants have changed over time in regard to land disputes. Two critical restrictions have been placed on the role of elders and chiefs in the post-independence era. In 1990 the Land Disputes Tribunals Act provided for the creation of Land Tribunals to hear land disputes that involved customary law and customary land (Land Disputes Tribunals Act 1990). In this Act the only formally recognized “elders” are those that are sitting on a Land Tribunal. No one else has the right to resolve customary disputes. Chiefs and members of the PA were completely excluded from the adjudication of land disputes. In 1997, parliament also changed the Chief’s Act (later the Chief’s Authority Act) to limit the ability of chiefs and assistant chiefs to control either property or the movement of people. The primary responsibilities of chiefs and assistant chiefs are now limited to crime prevention and the maintenance of order (Chiefs’ Act 1997). Even though elders and chiefs no longer have legal authority in a land dispute (unless the elders are impaneled on a Land Tribunal), they continue to act as mediators. Instead of providing a meal for the elders as was the custom, those involved in the dispute are now

expected to give money (SS 2006). Conflicts regarding land are resolved by local leaders according to the customs of that particular ethnic group or clan. However, the leaders doing the mediation have no legal jurisdiction over land disputes and are required by law to refer people with land conflicts to the Land Tribunals. Decisions made regarding land at any level within the PA (assistant chiefs, chiefs, or district officers) are not enforceable because they are not within the formal process of land dispute resolution. According to one lawyer in Kisii: They [members of the PA] are not being encumbered by technicalities of law. Because you know the law we administer in court is very technical, but with them they administer it with a sense of justice. ... They are not being governed “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

[67]

by any rules and law. So sometimes they can administer justice or sometimes they can administer injustice. . .. The kind of justice you can get from the Pro-

vincial Administration is amorphous and is not binding. (Otieno 2006)

The only source of legally binding land dispute arbitration is the court system with Land Tribunals as the court of first instance. The Land Tribunals were established with the intent of providing a low-cost, local option for people that would allow them to take their conflicts before a panel of elders who had knowledge of the community; those using the Land Tribunals would be able to avoid lawyers and long delays (Mugo 2006: 9). However, they did not always work as intended. Indeed, discontent with the Land Tribunals was so high that in 2003 the Lands and Settlement Minister dissolved all the tribunals throughout the country because the public thought they were inappropriately discharging their duties. They were subsequently reestablished (Mugo 2006: 10).

DISPUTE

RESOLUTION

IN KISII

Kisii is located in the fertile highlands of Nyanza province in Western Kenya. The region is named after the Kisii ethnic group (also known as Gusii) and contains three political districts: Kisii Central, Nyamira, and Gucha. The administrative hierarchy in each district is made up of a district commissioner, several district officers, chiefs,

assistant chiefs, and elders. The Kisii area is one of the most densely populated in Kenya, covering 2,204 square kilometers and sustaining 1.6 million people, almost all of whom are ethnically Kisii (Central Bureau of Statistics 2001). Most of Kisii’s population engage in subsistence farming of food crops (maize, beans, bananas, sorghum, and millet) supplemented

by cash crops such as tea and coffee (Waithaka et al. 2000). Average household size is five people, and farms are between one and four

acres (Central Bureau of Statistics 2001). A growing population is putting enormous pressure on the land. The customary inheritance [68]

Where There Is No Government

system requires that each son receive an equal share of the land; consequently, the land available for each family is decreasing with each generation. The average monthly income per capita is 1,496 KSHs

(Kenyan shillings, about US$21)." (The Third Welfare Monitoring Survey 2002) and the average monthly expenditure per household is 3,250 KSHs ($46), 86 percent of which is spent on food (The Third

Welfare Monitoring Survey 2002). Chiefs and assistant chiefs in Kisii are extremely active in the resolution of land disputes and are paid for their services. In the interviews and focus groups that Elin Henrysson and I conducted in Kisii, it became apparent that there was a great deal of uncertainty among the rural population in terms of what the formal process of dispute resolution would be for a land case.'* Although most of the chiefs and many of the elders acknowledged that they no longer had official sanction to provide arbitration in land dispute cases, most asserted that they would still hear “small cases” if they believed they would be able to solve them (MO 2006a; PO 2006; SS 2006; ZN 2006). Only if they failed to reach an agree-

ment between the parties would disputants be referred to the Land Tribunal. Thus members of the PA have retained their arbitration roles, in spite of the 1990 law designed to circumscribe that function. According to a study of the Land Tribunals, “the involvement of the Provincial Administration [assistant chiefs, chiefs, district officers, and district commissioners] in land issues continues to

work against the aims of the Tribunals” (Okuro 2002). A thorough discussion of this area and the problems that women have in securing their property rights is available elsewhere (Henrysson and Joireman 2009).

People turn to elders and chiefs to resolve their land conflicts because it is perceived to be the least expensive avenue for resolving disputes. Women’s groups, elders, and chiefs whom we interviewed all agreed that there is no cost to resolving a land dispute within an extended family. However, if a person wishes to involve elders, they must pay them, though the amount varies. An elder from Gucha “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

[69]

explained that there is not “a fixed amount that you pay, but you pay

what you can afford” (AO 2006). This raises the possibility that if one party is able to pay more money than the other, the elder may be compromised in his ability to adjudicate the dispute fairly. In one particular conflict, a widow was promised by the local chief that her land would be given back to her. However, when they met with the

disputing party to hand over the land, the chief asked her for 7,000

KSHs (US$100). The chief resolved the dispute, passing judgment that her land would not be returned to her. She suspects that she lost her land because her opponent paid the chief more money than she

had (MO 2006).

:

There is no accountability for these types of side payments. An elder from Kisii Central admitted that “they usually ask for this informally. ... But they are not supposed to ask for anything” (ZN 2006). Elders and chiefs estimated that a person would pay approximately 140 KSHs (US$2) to have elders resolve a dispute. Women's groups, on the other hand, estimated that taking a dispute to the elder would on average cost 980 KSHs (US$14). The elders and chiefs claimed that there were no costs at the chief’s level, but

the women’s groups estimated that women would on average pay 2,500 KSHs (US$35) to the assistant chief and then to the chief. ‘The perceived costs of the land tribunals and courts are also noted in Table 3.2. The existence of payments in the customary as well as the formal

system was the most consistent element in the personal accounts of land disputes. It became apparent from interview responses that in

Table 3.2.

COST

ESTIMATES

FOR ADJUDICATION

Women’s Estimates

IN US DOLLARS Official’s Estimates

Elders

$14

$2

Chiefs

$35

$0

Land Tribunal

$53

$14-$21

Courts

$142

$142-$428

[70]

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order to win a case, a complainant must be able to pay more money than his or her opponent. For example, SM approached an elder concerning a dispute in which her son had sold her land. She gave the chief 200 KSHs (US$3) but the chief did not rule in her favor “because the chief had been paid money by the buyer... . they paid enough money” (SM 2006). It is not surprising to see informal dispute resolution systems in

rural areas where the strength and reach of the state is not as evident as it is in urban areas. Chiefs have the attribute of being a visible representation of state authority. Thus, even if they have no de jure dispute resolution power when it comes to the resolution of property conflicts, their visibility as state representatives gives them authority to do so.'’ People choose an informal process of dispute resolution in spite of the fact that the decisions are non-enforceable because the informal process is cheaper and more accessible. They seek out local officials as representatives of the state and, in spite of the fact that resolving land disputes is outside of their formal responsibilities, these local officials are willing to act in this capacity because they are paid. We found evidence of this type of behavior on the part of civil servants not just in rural Kenya, but also in the

capital city, Nairobi. Although the role of bureaucratic entrepreneurs in Nairobi will be addressed in greater detail in chapter 6, one particularly interesting example is included here. This case from Kibera, a slum community in Nairobi, has a typical

cause—eviction from a rental property. However, the eviction was not a result of the tenant defaulting on her rent. In a series of interviews, the tenant reported that both the landlord and the landlord's

son had been pressuring her to have a sexual relationship with them, though they were unaware of each other's advances. The tenant stated that she had tried to pay her rent, but the landlord had refused to accept it. She assumed that her refusal to engage in sexual activity with the landlord led to her eviction. She came home one day in June 2007 to find her home padlocked. Since she could not get in, she spent that night outside. “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

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The tenant first brought her case to the assistant chief, who was

not willing to help her. She “couldn't figure out how much he had eaten” [how much the landlord had paid him], but she judged from the behavior of the assistant chief that it was sufficient to prevent him from taking her case. The tenant then went to the chief, but he

also did not help. At this point she went to a legal aid clinic to get their assistance in retrieving the contents of her home. She explained that she only wanted her possessions and did not want to fight to remain living there, but her home was padlocked and she had no access. A lawyer from the legal aid clinic contacted the chief to get him to intervene to remove the padlock. The chief called the landlord, but the landlord had already moved the tenant's possessions out (itwas later discovered the chief was there when this happened). The tenant then brought the case to the Kilimani Police to help reclaim her things. The Kilimani Police refused to take up her case. They advised her to go back to the chief and to have the chief arrest the landlord. At this point, the tenant tried to file a complaint in the Rent Tribunal, the only formal channel for the resolution of rental disputes in Kibera. However, the cost of filing the case at the Tribunal was 710 KSHs, which she could not afford. The tenant then took

the case to the district officer, who told the chief to go and personally supervise as her possessions were returned. The tenant eventually regained her possessions, although she lost the right to stay in her rented property (CJ 2007a, 2007b). This case illustrates the quotidian experience of people turning to the Provincial Administration to resolve disputes even when they are operating beyond their area of formal responsibility. In this particular instance, the woman tried to involve the PA, first in the

illegitimate use of their authority (resolving her tenancy conflict) and second in the legitimate use of their authority to reclaim ler possessions after eviction, to no avail in both circumstances. Her perception is that the assistant chief was paid off by her landlord, leading to her eviction despite the fact that she was current in her rental payments. Though her “contract” was never enforced, officials [72]

Where There Is No Government

in the PA did eventually facilitate the return of her possessions. The chiefs are standing in the gap when the formal dispute resolution process (the Rent Tribunal) is too expensive. There are consequences to the involvement of government officials operating outside their areas of authority for people living in both urban and rural areas. Women and other socially less powerful groups may not receive decisions in their favor (Henrysson and

Joireman 2009). Disputants will not necessarily get decisions that can be legally enforced; they therefore may have to later shoulder the costs of extralegal enforcement mechanisms. There is unlikely to be a formal record of the resolution of the dispute, and as a result it may resurface at a later point in time. It is also very difficult to know in advance the full cost of informal dispute resolution.

ASSESSING

SOCIAL WELFARE

In both Uganda and Kenya we have evidence of government officials acting outside of their areas of responsibility and receiving payment for their services. Anthropological literature would suggest that this use of state identity for individuals acting in a non-state role is not unusual (von Benda-Beckmann and von Benda-Beckmann

2006). In both countries a formal process for land transfer and dispute resolution exists but is not used because it is either perceived to be too expensive or people are simply unaware that it exists. This creates a demand for alternative services that come at a reduced cost, and provides a strategic opportunity for officials who are recognized as agents of the state. Should we view this type of service provision as corruption? Possibly, but that appellation biases our ability to understand that the supply of service is propelled by an unmet social need, a demand from the local communities for state representatives. Moreover, these examples are not massive corruption of the sort that makes the national press. They are petty, involving small sums of money (beer, “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

[73]

not Benz). Still, these small sums impact the economic well-being of poor people living in communities relatively isolated from centers of power. Taxation would provide the funds necessary for the registration of land contracts and adjudication services, but taxation in both

countries is an ongoing struggle (Deininger et al. 2006; Kelly 2000). Christian Lund has argued that laws and regulations constitute significant, though not exclusive, reference points for citizens and public servants ... as to what is legal and illegal in their negotiations of

access and rights even if they are not enforced, In fact, laws and regulations may have decisive effects in terms of the opportunities that their nonen-

forcement provides. (Lund 2008: 134)

In other words, the creation of statute law may not necessarily lead to its enforcement, but rather allows local actors to decide whether

it should be enforced or not. It is evident that different bureaucratic actors are making these decisions, but their motivations for so doing

are open to interpretation. Lund is correct in identifying the role of law as a reference point and the role that bureaucrats play in deciding whether it will be enforced or not. This chapter has identified a few of the specific opportunities that open up for public servants by focusing on the behavior of bureaucrats in urban and rural communities in Kenya and Uganda. These case studies are distinct contexts in which we can observe different kinds of bureaucratic behavior as well as the variety of perceptions within the communities as to the nature of the services being provided. The political context of each of these communities is unique and the bureaucrats themselves are both elected (Ugandan LCI officials) and appointed (Kenyan Provincial Administration). Political decentralization in Uganda has led to a certain vitality in local governance, and Ugandans expect their local politicians to be responsive to their concerns. In Kenya, on the other hand, expectations of the Provincial Administration are more limited. Public opinion data affirms this observation, The Afrobarometer survey [74]

Where There Is No Government

was administered in both the Tororo area of Uganda (n = 80) and in Kisii, Kenya (n = 64) in the third round of data collection in 2005. When asked whether they approve or disapprove of the way their local government councillor has performed over the past 12 months, 76.3 percent of the people surveyed in Tororo approved or strongly approved compared to 42.2 percent in Kisii.’° In a similar question in which people were asked if they trusted their Local Council member, 34.4 percent of people in Kisii said that they trusted their council member somewhat or a lot, while the same categories received 70 percent of the responses in Tororo. Of particular interest is

the percentage of people who chose the most positive response; only 7.8 percent of people said they trusted their Local Council member a lot in Kisii, while in Tororo that percentage was 52.5. Another critical difference between the two countries is that the law and institutions regarding the resolution of land disputes have been changing in Uganda in unpredictable ways, putting an added burden of information acquisition on LCI officials who might be concerned about the resolution of disputes from an altruistic or patriotic perspective, rather than simply for their own economic benefit. One civil servant from Uganda reported operating outside of her responsibilities in an interview. When asked about the legality of her actions, she noted “You know this is Uganda, this isn’t Chicago. We can manage. Under the circumstances we do what we can” (B2 2006). To assess whether or not these services provided by the bureaucrats are beneficial to the society or harmful, we turn again to the five assessment criteria presented in chapter 1 of this book.

Predictability

The cases above are not the same with regard to predictability. Ugandan LCs who oversee the process of land transfer appear to do so in a clear manner, and the results of their efforts are predictable. Indeed, LC officials appear to be providing a necessary service in a “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

[75]

somewhat benign way. Their predictability is high. In contrast, Kenyan officials, though they accept payment, do not always resolve disputes in a predictable manner. Moreover, it is unclear how much one needs to pay in order to have a dispute positively resolved. Presumably this differs depending on location and individual, leading to a low level of predictability according to the assessment rubric. The differences in the cases suggest that entrepreneurial bureaucrats have a low level of predictability as a group, although they may function in a predictable manner in some localities. Comparing the predictability of bureaucratic entrepreneurs with that of the state is also contextually challenging. In Uganda, LC officials are not following the correct process, but they are not directly at odds with public law in the case of overseeing land transfers. In resolving disputes, however, there is some evidence of

LC officials making decisions not in congruence with public law (Khadiagala 2002). In Kenya, bureaucratic entrepreneurs may be unpredictable, ranking low on the rubric, but the courts are also

unpredictable. Corruption in the Kenyan legal system is well documented, and the courts are overburdened with cases (Okiogo 2002; Ringera et al. 2003).!”

Accessibility

Easy accessibility for local communities is the main reason that bureaucrats can act beyond their delineated areas of responsibility. In both Kenya and Uganda the bureaucrats mentioned, both elected representatives (Uganda) and civil servants (Kenya), are obvious representatives of the state in their areas. Their proximity to communities and to individuals who need to transfer and defend property make them accessible. However, as we see in Kisii, their geographic

accessibility may be offset by the costs of employing their services. If bureaucratic entrepreneurs are too expensive, their services will

remain inaccessible to some. [76]

Where There Is No Government

State courts and tribunals are perceived as too expensive to use and are often located far from communities. Moreover, there can be

a lack of awareness regarding the availability of state mechanisms of conflict resolution. Overall, bureaucratic entrepreneurs are more accessible than the state, ranking medium or high, compared to state services, which rank low.

Equity

Bureaucrats are not the courts, and their standards of equity are not the same as those present in the law. In practice this means that they may resolve cases based on personal interest, amount of payment received from parties to the dispute, or other factors. The influence of culture on decision making at the LC level has been noted as a problem for women’s property rights in particular (Kampire 2006; Khadiagala 2002). Outsiders and ethnic minor-

ities, two other groups who typically fare better under law than custom when it comes to property rights, often face discrimination. Bureaucratic entrepreneurs rank medium to low on the equity rubric, while state institutions, which are typically constrained by constitutional standards of equity, rank high.

Effectiveness

In Uganda no one we interviewed expressed frustration or discontent with the role of LC officials in land transfers, and we do not see this

evidence in other sources. This could be a result of the incomplete implementation of institutions from the Land Act (and therefore a lack of alternatives) or an abundant supply of land. Citizen response to formal titling programs in Africa is often low where people have

sufficient tenure security (Ensminger 1997). Formal titling measures for customary land in Uganda may not be needed everywhere, as informal institutions have developed to regulate exchange at a lower “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

[77]

price in terms of both monetary and transaction costs. In Kenya government and local communities are frustrated with the role and effectiveness of the bureaucratic entrepreneurs as a conflict resolution mechanism. As the account from the tenant in Kibera illustrates,

sometimes the chiefs are unable or unwilling to resolve an issue. The evidence on the effectiveness of bureaucrats in their unofficial roles is ambivalent. They can be effective, but it often depends on how much

they are paid. State courts and tribunals are often seen as a forum of last resort (as in the case of the Kibera tenant) when bureaucrats fail to resolve a problem. However, there is some indication that for those who are able to afford their services, state courts and tribunals are considered

the first and best option because of their effectiveness and equity (Khadiagala 2002). The effectiveness of the state is high, while that of bureaucratic entrepreneurs is medium or low.

Restraint

Violence has not been used by bureaucratic entrepreneurs in any of the regions or cases examined in this chapter.’* There is ample logical reason for the absence of violence, as bureaucratic entrepreneurs might jeopardize their role in service provision if they violate the law in a more obvious manner. The state can use force to resolve disputes and has at its disposal the means of enforcement in the form of police and bailiffs. However, the forceful resolution of a dispute by the state is usually conducted within the bounds of the law. Both state restraint and that of bureaucratic entrepreneurs is high. The Kenyan and Ugandan cases are not unique in their use of extralegal processes and personnel to meet the contractual needs of people transferring land and attempting to resolve disputes. Madagascar has a system of petits papiers in which people try to prove their property rights to a particular plot of land by having a piece of paper [78]

Where There Is No Government

describing their plot of land drafted on a computer and stamped by any government office. These have absolutely no legal weight but are treated locally in an extremely serious manner and are attached to sale and lease contracts (Jacoby and Minten 2007; Teyssier et al. n.d.). Hagberg gives an example of a similar type of documentation in Burkina Faso (Hagberg 2006). Peters and Kambewa report chiefs overseeing illegal sales of family land in Malawi—sales that might hold for a time, but later are legally challenged, resulting in the land

being returned to the family (2007). This chapter provides yet more examples of representatives of the state operating beyond their formal responsibilities to engage in the definition and enforcement of property rights.

CONCLUSIONS

As others have predicted (Anderson and Hill 2004; Ellickson 1991), private institutional innovation has met people's property needs at the local level in Kenya and Uganda. This innovation did not achieve the formality that the property rights school considers necessary for poverty alleviation—specifically the creation of meta-capital via documentation that allows for the extraction of the surplus value of

property through the creation of mortgages (de Soto 2000). In Uganda, the informal system of documentation of land transactions functions on the periphery of the formal process. There is sufficient official representation from the state (in the form of Local Council officials) to give people security of tenure, but not enough to bring this land into the formal property system where it can be both taxed and mortgaged. In Kenya, even the unofficial system of dispute resolution with regard to land is too costly for people on the lowest rung of the socioeconomic structure. Chiefs and assistant chiefs adjudicate land disputes for payment; the result is a rationing of dispute resolution and enforcement based on ability to pay, even within the informal system. “UNDER THE CIRCUMSTANCES, WE DO WHAT WE CAN”

[79]

The state sets the rules for property ownership and exchange through the creation of law, but what laws get enforced and how

they are enforced depends upon the activities of public officials. Entrepreneurial bureaucrats choose where they engage and what they enforce. They operate in a grey area, somewhere between social norms and public law. Ifthese bureaucrats were always acting out of greed, we could explain their roles as simply rent-seeking. However, in the absence of formalized and accessible state structure, we can

entertain the idea that a few of them might be acting altruistically— trying to promote the well-being of their communities or personal networks. Whatever their motivation, their existence in multiple contexts challenges us to think about the enforcement of property rights in new ways.

[80]

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CHAPTER

4

Property Rights Enforcement by Other Means The Role of Nongovernmental Organizations

R ecently several African countries— Ghana, Kenya, and Uganda

4+. \-among them—began providing universal primary education.' This has proven to be wildly popular with populations for whom school fees were an impediment to receiving even the most basic education. However, there are some unintended, albeit predictable

consequences when poor states open up their educational systems without dramatically increasing the number of teachers and schools to accommodate the new students flooding into the system. Overcrowding of classrooms and a lack of teachers have decreased the quality of the government educational system. In the absence of sufficient investment in educational infrastructure, private schools have emerged, drawing fee-paying students trying to escape the overcrowded classrooms of the government schools. Private schools have become money-making ventures, catering to parents who are concerned about the quality of their children’s education.” Private schools are an example of privately ordered solutions to an institutional inadequacy. They allow those who have money to purchase an alternative education. Schools can charge fees because they are better than or equivalent to the state institutions with which

they compete. This is an example of what institutional scholars predict should be happening around the world in a variety of contexts. When the state is absent or provides insufficient services, privately ordered institutions will arise to take its place (Anderson and Hill 2004; Smith 1992).

Robert Ellickson has observed that legal centrists, who assume that law has a critical role in forming the nature of society, assume that citizens know and honor legal rules. Ellickson’s work on privately ordered institutions has been influential. Observing cattle ranchers in Shasta County, California, he noted that resources were not distributed according to statute law, but followed social norms that contradicted the written law. Rather than using law, cattle ranch-

ers followed a set of rules that had developed organically, were acceptable to the population at large, and were enforced through informal sanctions (Ellickson 1991). Ellickson argues that this privately ordered institutional arrangement was more efficient than law in addressing the problems of liability created by wandering cattle. As the state retreats from service provision in some sectors and

geographic areas of Sub-Saharan Africa, we should take a careful look at what institutions arise to take its place. Is it organic institutional development that relies on citizen cooperation, as the theory on privately ordered institutions would predict? Market-based provision of services through private schools and other privatized services? Or something altogether different? Because clear property rights are in demand across the African continent, as they are essential to the functioning of the economy, it is particularly important to observe what happens in the absence of state enforcement of property rights. In this chapter I examine the role of one set of privately ordered institutions, nongovernmental organizations (NGOs), and the

role they play in enforcing property rights. The argument will proceed in four parts. First, I examine the role of NGOs in the post-independence African state and the proliferation of the nongovernmental sector in the past two decades. Then, I discuss the [82]

Where There Is No Government

function of NGOs in enforcing property rights, giving concrete examples from Uganda. The third section of the paper will evaluate the effectiveness of NGOs in property rights enforcement and their social welfare provision contrasted with that of the state, using the social welfare assessment rubric articulated in chapter 1 of this volume. This chapter will conclude with a discussion of the encroachment of NGOs into the area of law enforcement and specifically into the economically important realm of property rights.

NONGOVERNMENTAL AND THE AFRICAN

ORGANIZATIONS

STATE

In the early literature on civil society organizations, civil society

and the state were presented as competitors fighting a zero-sum game for power within a territory (Migdal et al. 1994). This statesociety distinction proved inadequate in describing the struggle for resources among civil society groups that might be mediated by the state or by an understanding of the state that recognizes it as the focus of the competing societal groups (Chabal and Daloz 1999; Fatton 1992). Moreover, we now view the definition of “society” as encompassing a variety of groups that are not always unified in

terms of their agenda or goals. For example, although organized ethnic groups, churches, women’s associations, indigenous human

rights organizations, and rotating credit societies are all elements of civil society, each has distinct goals, social locations, and methods of operation. In this chapter, the term “nongovernmental organization” is used to refer to private sector, nonprofit, voluntary organizations, both local and international. Since this book discusses a variety of nonstate actors, it is also helpful to define an NGO, as it is used, here in

terms of what it is not. An NGO is not a political party, is not engaged in violence or the threat of force, and is not part of the government. Though NGOs have traditionally focused on health, PROPERTY RIGHTS ENFORCEMENT

BY OTHER MEANS

[83]

education, and human rights, they have increasingly become involved in the enforcement of property rights as well. The early literature on NGOs dates from the post-Cold War era, when a burgeoning NGO sector drew the attention of governments, political scientists, and sociologists. This literature revived the state-society argument noted earlier, but with a specific emphasis on NGOs. The central issue was whether states would allow NGOs to function autonomously or would restrict their actions to limited sectors, such as humanitarian assistance. Michael Bratton wrote in

1989 that there was ambiguity regarding “the proper role of the state in economic development and civil society” (1989: 570). His concern was to guarantee the autonomy of NGOs

in acting

independently from government control in social and economic spheres. Later assessments articulated the role of NGOs as paralleling that of the state, supplying the same services, but to different populations or geographic regions (Fowler 1995). Twenty years later, the worm has turned; NGOs are viewed to be supplanting

weak states in politically detrimental ways, providing health care and education services to such an extent that the state neglects its responsibilities in these areas and citizens look to NGOs rather than the state for the provision of critical services (van de Walle 2001). Controversy remains over the proper role of the state in economic development and civil society, but fears that the state will overwhelm civil society have given way to a different concern altogether. How much of the appropriate function of the state will now be handed over to NGOs?

‘The increase in the number of NGOs and the large amounts of development funding they control has changed the nature of state/ society relations (Paul 2000; McGann andJohnstone 2006). Education and basic health care were previously understood to be state responsibilities, with the expectation that they would be funded by taxes, thus providing a vital link of accountability between the government and the population. As NGOs have taken over these services, citizen expectations of the state have shifted. Instead of [84]

Where There Is No Government

looking to the state for provision of health care and education needs, people have turned to outside organizations. Furthermore, the retreat of the state has become increasingly evident, not just in health and education but also in the provision of security. Throughout Africa and the world, more security and law enforcement

services are being hired out to private contractors

(Avant 2005; Ferguson 2005; Singer 2004). James Ferguson notes the

deterioration of the capacity of African states in areas in which state functions have been “outsourced” to NGOs (Ferguson 2005). Ass-

essing causality of this phenomenon is not a simple task. If NGO involvement encourages the state to withdraw from service provision, then NGO activity is problematic. Moreover, some see within this substitution for the state the potential for revolutionary movements to mobilize and grow. Sheri Berman has noted that civil society organizations can undermine political stability to the extent that they separate people from traditional political structures (Berman 2003). But if, as in the case of privatized educational services, NGOs are filling gaps where the state’s services are inadequate or absent— if they are augmenting public services rather than substituting for them—then the involvement of NGOs is a potentially beneficial solution to weak state capacity because people are receiving services that they otherwise would not. The enforcement of property rights is a public good.’ When citizens are aware that the state is enforcing property rights, contracts are honored, resources are passed peacefully from one generation to another, and the number of conflicts in need of the dispute resolution services of the state is reduced. My 90-year-old grandmother lived in the same house in Cleveland, Ohio, for 65 years. At one

point a new neighbor moved in next door to her. This neighbor wanted to put up a fence that encroached on her property. My grandmother objected. When a building crew arrived to try to install the fence in exactly the place she had contested, she had her neighbor served with a cease and desist order and he changed his plans. Without the threat of state intervention and enforcement of her property PROPERTY RIGHTS ENFORCEMENT

BY OTHER MEANS

[85]

rights, could my grandmother have prevented her neighbor from constructing that fence? Probably not. Her neighbor responded to the threat of state involvement. The presence of law was invoked, but state enforcement mechanisms were not actually used. Where the strength of the state is low, the vacant political space will be filled by others capable of engaging in conflict resolution, broadly understood. However, “others” encompasses a great variety of non-state actors: warlords, traditional leaders, mafias, entrepreneurial bureaucrats, and so on. The costs to communities can be high

if the actors providing conflict resolution are motivated only by personal gain. Consequently, it is not necessarily optimal for the state to be replaced with organically developing institutions, as those institutions may prove to be quite costly (warlords), or unjust, as can be the case with some traditional leaders (Henrysson and Joireman 2009).

NGO

ENFORCEMENT

OF PROPERTY

RIGHTS

NGOs are distinct from specialists in violence and bureaucratic entrepreneurs, as profit is generally not the primary motive for their actions and they typically target a particular issue or problem. Rather than take a normative view regarding the role of NGOs, I

report their actions below and reflect on their implications for property rights enforcement and the state. In this section, I will be describing two NGOs acting in a law enforcement capacity in Uganda: a well-known international organization, the International

Federation of Women Lawyers (FIDA) and an indigenous Ugandan NGO, the Mifumi Project.’

FIDA

S

The International Federation of Women Lawyers (FIDA) operates in many parts of the world. Each FIDA office addresses the specific legal problems that the women of the country face under the overall [86]

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rubric of providing legal aid to women.$ In Uganda, FIDA is officially called the Ugandan Association of Women Lawyers, but it is known throughout the four regions of Uganda where it operates by its international acronym of FIDA. FIDA focuses on advocating for women through family law related to inheritance, divorce, and child mainte-

nance. It also handles cases that are specifically related to women’s land and property rights. In both rural and urban areas, FIDA provides not only legal counsel but also enforcement of law. It runs public educational seminars to inform communities about the content of the Ugandan law as it relates to issues concerning women, lobbies the government on women's issues, and provides legal advice and mediation to women who seek assistance. FIDA staff are typically lawyers using Alternative Dispute Resolution (ADR) techniques whenever possible because it is cheaper and less socially divisive than court proceedings.° When a client, usually female, comes to FIDA with a problem, she meets with a lawyer who assesses the merits of her case and informs her of the content and application of the law. If there is a clear violation of law and the woman chooses to pursue her complaint, FIDA issues a “letter of invitation” to the parties in the dispute. The letter requests the presence of all parties at a negotiation session where the FIDA lawyer can explain to them what the law of the country demands in the situation and try to set up a mechanism for resolving the conflict out of court. Ifthis mediation is ineffective, FIDA has the resources

to take some cases to court. FIDA’s actions are valuable in three ways pertinent to this chapter. First, FIDA plays a critical role in educating the populace regarding the content of the law. It is not unusual for parties to a dispute to be ignorant of the content of public law regarding issues such as marriage and inheritance. This is particularly true in Africa, where customary law often informs people’s actions in family matters.

Chapter 2 of this volume deals with this issue in greater detail. As an example, the legal requirement that children from a marriage be maintained financially by their father is often a surprise to both PROPERTY

RIGHTS

ENFORCEMENT

BY OTHER

MEANS

[87]

parties in a divorce or separation. In its educational role, FIDA plays an important role in compelling adherence to the law simply by informing citizens who would choose to be compliant. Second, FIDA’s intervention demonstrates that there is an out-

side authority observing and responding to people’s actions. Their use of ADR directs accountability to the law that would otherwise be absent. The extent to which ADR is perceived to be a real threat of enforcement should not be underestimated. A person who is not well-educated, unused to dealing with bureaucracies, or unaware of

the law is unlikely to ignore a letter requesting his or her presence at a legal mediation. Third, FIDA enables women to bring cases to court. Without FIDA in Uganda, many women would be unable to pursue a court case, due to their lack of education regarding legal processes and the pressures of time and money. FIDA provides both lawyers and court fees for women to seek legal resolutions to conflicts that cannot be resolved through other means. Although women interviewed in the Tororo area of Uganda repeatedly noted the time and monetary constraints that they faced in traveling to a FIDA office for assistance, they identified FIDA as their only way of accessing a legal solution to their problems (Women’s Guild of Tororo 2005).

One way of assessing FIDA’s impact on property rights enforcement in Uganda is to examine the implementation of the “consent clause,’ a stipulation in Uganda's 1998 Land Act that restricts one spouse's ability to sell the “land on which is situated the ordinary residence of the family and from which the family derive suste-

nance” without the approval of the other (The Land [Amendment] Act, 2004). While the implementation of the Land Act has been difficult overall, the active role of FIDA and other women’s organizations has raised awareness about the content of the law as it pertains to women’s property rights throughout the country. Evidence from a 2006 survey of 2,227 households in 20 districts of Uganda conducted by Associates for Development and the Centre for Basic Research shows that spouses are now seeking consent in most areas [88]

Where There Is No Government

of the country (2006: 77-78)’in spite of the fact that other aspects of the Bill are still not regularly used or are contested.

Mifumi

Mifumi is a Ugandan NGO that takes its name from the small village of Mifumi in eastern Uganda where it began. The original goal of Mifumi was to build a primary school. When this was accomplished, the organization expanded its vision and incorporated as an NGO in 1990 with the goals of reducing the burden of poverty and defending human rights with a special focus on women and children. Mifumi has been involved in a national campaign against the payment of bride price and has been a strong and solitary voice against domestic violence in the region. In the area in and around Tororo, Mifumi provides legal advice and support, counseling, educational services, and financial assistance to women and children in

need. The organization has recognized the importance of property rights for both women and minor children and seeks to promote educational efforts and legal support for women whose property rights are threatened. Mifumi has used innovative means to change the structures that impede human rights within its area of reach. In its campaign against domestic violence, Mifumi has provided legal aid services, trained health care professionals in dealing with domestic violence cases, established a safe house, and led educational seminars for police officers. One of the challenges that Mifumi identified in their campaign against domestic violence was a lack of education among the police force and a lack of police capacity to respond to emergencies. They responded by providing legal training to police officers and purchasing a motorbike for the police, which allowed officers to move about the area and respond to domestic violence and presumably other cases as well. They also built the police in their town a

new office (Turner 2005). These efforts further the NGO’s goals PROPERTY RIGHTS ENFORCEMENT

BY OTHERMEANS

[89]

and improve service provision for the community, though one might argue that Mifumi is supplying resources that ought to come from the state. Mifumi recognizes the police, doctors, judges, and

government officials as “duty-bearers” without whom they would be unable to combat crime and domestic violence (Ndira 2008). Mifumi’s goal is to equip “duty-bearers” to respond and enforce law that exists. Because the consent clause of the 1998 Land Act relates to women’s property rights, Mifumi led a campaign to raise awareness regarding the legal requirements for the sale of land. In 2006, Abbi Martin conducted an informal survey of the women in two areas surrounding the town of Tororo. In Mifumi village, 20 women were

surveyed and 70 percent were aware of the legal requirements of the consent clause. However, when a group of 26 women from the same sub-county but a different village (Paduka, 5 kilometers east of Mifumi) were surveyed, none (0 percent) of the women were aware of the consent clause or even the Land Act (Martin 2007). Both FIDA and Mifumi play a critical role in educating unin-

formed populations about formal laws that benefit them. They both operate in areas in which the state is weak, information is scarce,

and customary law competes with public law. With all of the pressing needs of development and administration in Uganda, educating the populace about the content of public law, particularly where it contradicts customary law or tradition, has simply not been a concern great enough to elicit state resources. Legal education is critical in law enforcement, as many people will choose to follow the law if they are aware of it, rather than engage in behavior that might lead to punishment. NGOs may not have a profit incentive to pursue their work, but they do answer to funders and have their own set of motivations. The number of cases they address in a year may influence the amount of funding they receive, giving them a motivation to pursue more

cases, which may lead to further substitution for the state legal system. Moreover, since many forms of development aid follow [90]

Where There Is No Government

particular fads, they may find their work propelled into different areas based on the motivations of external funders. The following section addresses other limitations of NGOs specifically pertaining to their work in enforcing property rights.

LIMITATIONS

OF PROPERTY

RIGHTS

ENFORCEMENT

BY NGOs

NGOs will never be as effective as the state in enforcing law because the state has a monopoly on the legal use of force. An NGO that tries to use force to compel actions, even legal obligations, will soon find itself out of business. Apart from obvious penalties, government officials would not work with an NGO that engaged in the illegal use of force, nor would the lawyers who form the backbone of service provision. Furthermore, NGOs face limitations in four areas: effective enforcement, specific missions that control the types of cases they can consider, constrained budgets, and a bounded geo-

graphic reach. Because NGOS cannot use force, they cannot threaten more than further legal proceedings. The effectiveness of their mediation and educational techniques is most pronounced among those who perceive them to be more powerful than they actually are (rural people unused to bureaucracy and uneducated people who might be ignorant of their role) or among law-abiding citizens. While education and mediation are effective in cases with low stakes, they are insufficient for disputes over large and/or valuable properties where the stakes are higher and legal counsel is employed on all sides. Though there are a few legal aid organizations that can provide any sort of legal services demanded, the two considered in this chapter have a specific mission to protect the rights of women and children. They are not concerned with enforcing everyone's legal rights as the state is obligated to do. This is the second limitation of NGOs—they are bounded by their particular mission. Consider our examples of Mifumi and FIDA; they are focused on the PROPERTY RIGHTS ENFORCEMENT BY OTHER MEANS

[91]

enforcement of women’s legal rights qua women rather than qua citizens. Thus they restrict their practices to marriage and family law, or to legal issues that immediately affect the economic situation of women and children. These organizations would not handle women’s complaints regarding employment or auto accidents unless their legal problems result from their sex. We can observe how mission limits the role that gender-based legal NGOs play by comparing case loads with a non-gender-based legal aid NGO. In Uganda other NGOs provide legal services to clients regarding the enforcement of property rights. The Legal Aid Project of the Uganda Law Society was formed in 1992 to serve indigent people in their efforts to access justice. They have an office in Kampala where they provide legal aid to all Ugandan citizens who come to solicit their services, male or female, regardless of the type of complaint. Over the one-year period of June 2005-2006, 52 percent of singlefiler complainants to the Legal Aid Project were male and 48 percent female. Statistics recorded from the same year of FIDA activity in Kampala show that the vast majority of applicants are groups of people, likely a woman and her children. When the applicant is a single individual, that person is female in 82.5 percent of the cases and male in 17.5 percent of the cases. Not surprisingly, the nature of the cases heard in the two NGOs is also different. Table 4.1 illustrates Table 4.1.

DISPUTES FILED AT KAMPALA JUNE 2005-J)UNE 2006

Subject of Dispute

LEGAL

NGOs,

Percentage of Cases

FIDA

LAP

Land

ll

16.1

Inheritance

9.9

6.2

Criminal

1.1

57

Civil

3.3

36.3

66.4

20.1

Missing/Other

8.3

15.6

FIDA n=1709 LAP n=369

.

Domestic

[92]

Where There Is No Government

:

an

pers

the breakdown of cases heard at FIDA and the Legal Aid Project by the nature of the complaint. These figures demonstrate that, in addition to pursuing services from a women-oriented NGO, women also use general-purpose legal aid services. The diversity of case distribution suggests that women are pursuing their domestic complaints through FIDA and using the Legal Aid Project primarily for other issues. A third limitation on the services of NGOs is the restriction that low budgets place on their ability to offer services.’ NGOs typically function with skeletal staffs and use as many volunteers as they can find. Law enforcement NGOs in capital cities can often get lawyers to pick up cases on a pro bono basis, but in rural areas there is an insufficient number of lawyers for this staffing strategy. Additionally, the availability of NGO services is not stable from one year to another, as budgets fluctuate. For example, due to budget constraints

the FIDA Uganda office located in Mbale, Uganda, closed unexpectedly in 2008, leaving people in the area who would seek its services without access to legal aid. Closely related to this issue of funding is that of the geographic reach of these organizations. Small-budget legal NGOs have few offices, and their reach throughout the country is limited. It is quite possible, as noted above, to have legal education programs offered by NGOs in one area, but for people a few miles away to be ignorant of the nature of public law because they have not been exposed to the same legal education. Legal NGOs, therefore, create zones of

enforcement that are beneficial, but substantially more limited than the services a state could provide. Despite restrictions on the use of force, specific missions, limited

budgets and geographic reach, evidence indicates that NGOs are fulfilling an important role in the provision of services. Unfortunately, their substitution for the state may be problematic. Interviews with government officials in the Tororo area illustrated two potentially troubling trends: (1) faced with issues they could not solve, government officials referred people to NGOs; and (2) even PROPERTY RIGHTS ENFORCEMENT BY OTHER MEANS

[93]

after a person had begun a formal dispute process in national courts, there were points at which they would be directed out of the state enforcement system to NGOs rather than appealing upward in the system.

For example, in one case a man was planning to dispose of property farmed by his partner without her consent. They were an unmarried couple, but they had children. She went to her Local Council (LCI) official—the lowest level of government representa-

tion in Uganda.’ The local councillor issued a summons to the man to appear before the Local Council. The man did not respond, so the LC referred the woman to FIDA. FIDA then assisted her in lodging a caveat on the property to protect the rights of their children. An interview with a FIDA lawyer substantiated this point: Most of those you know our local councils yes they are local leaders but if1 may tell you these are political posts, they are not government appointed,

they are not civil servants, they are political posts, so most of these people are not knowledgeable in law, that is why institutions like Mifumi and FIDA pick them out and they train them. ... most of the clients that come here,

come with referral letters from those Local Councils. ... [that] say we have tried to advise the husband, we have sat, we have done what we needed, and

he wants to continue to sell. He has totally refused, he has abused our

courts so we are referring her to you for what for further assistance. So it is not like the other people have totally failed or they have not handled or

they do not consider them but they go there first and when they fail they

refer them. (Bwenene 2006)

Even the highest public officials in the area did not dispute this lawyer’s assessment. In an interview a Local Council Level III official noted that if the LCIII courts were unable to solve a case they sent it

to FIDA (Okitwi 2006). This referral from within the legal system to a private NGO is indicative of the complications arising from NGOs providing services normally under the state's purview. Though everyone in the example above recognized that this was the best [94]

Where There Is No Government

course of action for the individual client, it illustrates the state’s reli-

ance on NGOs to perform the key legal service of dispute resolution. What we observe in Tororo is reminiscent of findings by the von Benda-Beckmanns regarding legal pluralism in Asia where they note that “.. . at local levels we find various state officials side by side with a range of transnational actors who each try and propagate their particular set of legal norms ... This constellation has implications for the forms of governance that emerge” (von Benda-Beckmann and von Benda-Beckmann 2006: 7).

ASSESSING

SOCIAL WELFARE

Rather than simply noting the ways in which NGOs are substituting for the state and labeling these as helpful or unhelpful, it is useful to refer back to the rubric for assessing social welfare from chapter 1 and to ask what is happening in terms of the provision of social welfare. Recall that there are five criteria to assess the social welfare of institutions providing services to the population: predictability; accessibility; equity; effectiveness; and restraint. We can make preliminary judgments regarding the role that NGOs are playing vis-avis the state by assessing the degree to which they surpass or trail the state in any of these areas.

Predictability

NGOs involved in law enforcement rival the state in terms of their ability to enforce the law with predictability. Their goal is legal compliance and law enforcement that is on par with the state. Anyone going to a legal NGO can be certain that whatever solutions they suggest will adhere to statute law. The only point

at which NGOs might diverge from state policies would be in their political lobbying for legal change, but this sort of activity is PROPERTY

RIGHTS

ENFORCEMENT

BY OTHER

MEANS

[95]

obviously separated from consultation and dispute resolution services. The state and legal NGOs both rank high on the assessment rubric in predictability.

Accessibility

The accessibility of legal NGOs is significantly more limited than that of state institutions. Though they are usually affordable because of the pro bono services of lawyers or subsidized activities, they are geographically limited in their reach. People with access to the legal services of NGOs are privileged. While the state is obligated to have legal outposts throughout the country (insufficient as these may be), NGOs are not and can rarely afford more than a few offices. Therefore, access to legal NGOs is limited to those in the capital city or any other offices which exist (most likely in major urban centers in other parts of the country). State legal services are not always accessible because of the fees involved. However, they are distributed throughout the country. On the assessment rubric, state legal services would rate a medium and NGO services low to medium because of their limited geographic reach.

Equity

The equity of state institutions of law enforcement as compared to NGOs is difficult to assess. Although it is true that the NGOs highlighted here would not rate higher than medium on our assessment scale because of their targeted clientele (women), it is not clear that the state institutions would be superior. Generally speaking, the equity of state institutions of law enforcement and dispute resolution are high. However, some research suggests that with regard to specific legal issues, such as domestic violence, state institutions of conflict resolution are quite problematic for women to negotiate (Manji 1999). NGOs can be viewed as corrective to [96]

Where There Is No Government

the state in areas where the state’s ability to handle cases equitably has been challenged.

Effectiveness

Similarly, it is difficult to compare the effectiveness of these two sets of institutions due to the way in which they are intertwined. State institutions can be expected to be at the high end of the scale in terms of effectiveness, and NGOs to manage no better than a med-

ium due to their inability to use force to compel a resolution. Yet in rural eastern Uganda, starting with the state dispute resolution mechanisms does not seem to lead to a final resolution as state officials are pushing cases out of the formal system of resolutions and to the NGOs. Because of the “cross-fertilization” of processes in play, it isn't possible to assess the effectiveness of the formal versus the informal settlement processed.’”

Restraint

Both the state and NGOs are restrained in their response to violations of law. Neither the state nor NGOs are likely to resort to violence to resolve disputes. In the case of NGOs, any use of violence would almost certainly cause NGOs to lose support and their ability to serve a populace. The state can use force or the threat of force within the law. Supporters of nonviolent conflict resolution would perhaps prefer the methods of the NGOs, but as our concern in this category is on the use of force within the bounds of the law, the

actions of the state rate as high. The legal NGOs examined in this chapter both substitute for and cooperate with the state. People who have access to legal NGOs have the ability to use the courts and statute law to resolve their disputes, but not everyone has this access. PROPERTY RIGHTS ENFORCEMENT BY OTHER MEANS

[97]

Conceptualizing Legal Processes

The way that legal NGOs function in Uganda challenges our thinking on the enforcement of property rights and other law. There are two extant models for conceptualizing the role of NGOs in the legal sphere: the traditional model and the parallel model. In the traditional model, NGOs provide services of education and advice that will in most instances prevent complaints from ever making it to the courts. Through legal advice and ADR, legal NGOs are able to fully resolve many of the disputes that come to them. For those they cannot resolve, the NGOs funnel the cases into the formal court system, providing legal and financial support as they do so. Figure 4.1 illustrates this process.

===

Formal process

Figure 4.1. Traditional model of NGO Involvement in Dispute Resolution.

This model is also suggested by some as the way to conceptualize informal legal systems in many parts of the world—as the starting point for a legal process that might at some point enter the formal

system (Gauri 2009). Two separate literatures, those regarding state failure and privately ordered institutions, suggest another possible scenario. Both of these literatures discuss the development of alternatives to the state either because the state is unable to provide services or because privately ordered institutional responses are more efficient. These

models suggest the development of institutions which parallel those of the state in a way suggested by Figure 4.2 below.

———=

Formal process

Figure 4.2. NGOs as Substitutes for State Dispute Resolution.

[98]

Where There Is No Government

Like the example that begins this chapter, the parallel model would suggest that private institutions (in our case NGOs) develop as separate processes to fill in where the state has failed or where privately ordered institutions are more efficient or desirable. While there can be no doubt that institutions of property rights enforcement develop in autonomous and parallel processes, as noted in chapters 2, 3, and S, this model is not a good representation

of what is happening with the legal NGOs. Legal NGOs are clearly sharing in the responsibilities of the state in some instances, for example in their educational role and in the provision of legal advice. Additionally, they substitute for the state in a limited way through the provision of dispute resolution. ———

Formal process

Figure 4.3. Actual Relationship Between NGOs and State Dispute Resolution.

What we see in the case of the Ugandan legal NGOs is neither of the two models above, but rather an interdependent legal process in which the NGO refers cases to the state legal system, but the state legal system and political structures also refer cases out of the formal system and back to the NGOs. Conceptually, Figure 4.3 represents the process observed.

CONCLUSIONS

The state may set limits on social activity through the creation oflaw, but which parts of what laws ultimately get enforced in many areas of Sub-Saharan Africa is influenced by the activity of non-state

actors. This suggests: (1) a far more pervasive relationship between NGOs and the state than that which has been previously articulated with overlapping state and NGO activities in education and training; PROPERTY

RIGHTS

ENFORCEMENT

BY OTHER

MEANS

[99]

(2) alaw enforcement process that is neither completely organic nor

state-imposed; and (3) an interlinking of public legal processes with private entities.

The literature on privately ordered institutions tells us that they can substitute for the state where it is absent, yet economic historians and development specialists alike have noted the importance of a correspondence between private institutions and statute law for the law to be most effective (de Soto 2000; North 1990). Indeed, in

an ideal world, informal social norms and laws are mutually supporting, reducing the costs of law enforcement and increasing the degree of compliance. The Ugandan NGOs that I have examined here are involved in both the enforcement of law and the creation of social norms. Their educational activities inform people of the law and attempt to build social norms of compliance with laws that respect the rights of women and children. When this fails, they try to enforce the law. Moreover, they also work behind the scenes to equip the appropriate government officials to do their jobs well in areas that pertain to women and children. The activities of these NGOs fall into the category of law enforcement, yet the NGOs will never be a complete substitute for the state. NGOs will always operate at the margins, working with groups that are less privileged or in regions where the state does not have a strong presence. Where they are located, legal NGOs are supportive of state policies and seek to build social norms around laws that already exist. While they substitute for the state in this regard, their activities are ultimately benign. Indeed, the only threat that these NGO activities present is to expectations. Insofar as the state looks to them to fill in for its role in supervising and educating bureaucrats or enforcing law, NGO activities become a crutch for the state and a justification for the allocation of state resources to other endeavors. Additionally, NGO involvement in law enforcement can limit the expectations that citizens and even public officials have of what the state ought to be doing. If citizens and bureaucrats see state [100]

Where There Is No Government

involvement in the enforcement of law as optional, then it will be unlikely to occur. That said, people living in the areas in which legal NGOs are working are better off, as they face a higher chance of knowing what the law is, finding a resolution to their conflicts, and

accessing the legal system should they desire to do so.

PROPERTY RIGHTS ENFORCEMENT BY OTHER MEANS

[101]

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CHAPTER

5

Private Enforcement of

Property Rights The Demand for Specialists in Violence

AV T hile legislatures around the world can create laws and regu-

lations regarding property and contracts, they do not have the responsibility of enforcing the rights that those laws convey. This is the responsibility of courts and local administrative structures across a country. In the developed world, legal information is disseminated, local authorities are strong and relatively account-

able, and legislative decisions usually lead to enforcement in a predictable fashion.’ Enforcement of contracts and property law is occasionally a police matter—if it is accompanied by crime—but it is more often simply left to the civil judicial system. In contrast, the provision of personal security is a matter for criminal law enforcement. The presence and response of police are intended to prevent assault, theft, murder, and rape. When these crimes do occur, the police

are expected to apprehend those involved and to keep them under supervision until their guilt or innocence can be determined by a court. Criminal matters are addressed by the police in an immediate manner. On the other hand, trespass, encroachment,

land conveyance, and contract enforcement are civil matters— disputes between two individuals or parties—which the courts are responsible for enforcing. These matters are often resolved with no police involvement. Where law enforcement is weak, because of problems with the

police and/or the courts, a political and social space opens for actors that can challenge the state: political entrepreneurs and rebel groups that can take advantage of readily accessible mineral or other resources for extraction (Reno 1999); private security forces

(Ferguson 2005; Goldsmith 2003); and traditional social hierarchies, such as ethnic groups, that can project control into geographic spaces where the state is absent. Rather than forgoing ownership and control over resources, people will seek these other means to protect their property and enforce their contracts where the state is weak. This chapter addresses the demand for non-state actors who are specialists in violence, “people who control means of inflicting damage on persons or objects” (Tilly 2003: 35) and who use those skills for the enforcement of property rights and contracts when the state is weak or absent. The chapter covers new ground in addressing the affect of weak states on civil law enforcement. While much has been written previously on personal or group security and the role of the state, there is less analysis of civil law enforcement. Yet, the enforcement of civil law impacts development through both the definition of property rights and the strength of contract enforcement. This chapter proceeds in four sections. It begins with a short introduction to the recent academic work on the privatization of security at the national level through private military companies (PMCs) and distinguishes their activities from those of private security compa-

nies (PSCs). This section discusses the role that privatized security has played in protecting the extraction of natural resources in Africa as well as defending the property rights of the urban middle and upper classes in Kenya. The second part of the chapter illustrates the problems faced by property owners in Accra, Ghana, where men [104]

Where There Is No Government

called Land Guards (specialists in violence) act informally to prevent encroachment on property rights. The social welfare of Land Guards as a privatized solution to the need for security of property rights is then assessed against the five criteria that I use to evaluate institutions: predictability, accessibility, equity, effectiveness, and restraint. The chapter concludes with comments regarding the political geography of power in Africa and the Weberian understanding of the state.

IMPORTANT

DEFINITIONS

Recent years have seen significant work on private military companies and privatized security (Avant 2005; Singer 2004).? Much of the interest in these groups has been generated by the activities of the United States government in contracting with private organizations such as Blackwater and Booz Allen Hamilton for security and support services in the Iraq and Afghanistan wars. The United States hired these security organizations to provide support services, freeing the enlisted members of the U.S. armed forces for

military activity. Whatever one might think of this development, and much ink has been spent in both support and opposition, this is not the type of experience that African states have had with private military and security organizations. African states hire PMCs, not to assist in military undertakings outside state borders, but rather to control territory or provide security within the boundaries of the state. PMCs in Africa protect executives who are concerned about threats from their own armed forces, fight on behalf

of the state in civil conflicts, control territory. and secure vital resources (O’Brien 2000; Small 2006; Peleman 2000). Some of the most vivid examples of this sort of military contracting came in the 1990s when Sierra Leone hired Sandline International to establish security in the capital city and Angola turned to Executive Outcomes to provide training for its soldiers. Neither company is still PRIVATE ENFORCEMENT

OF PROPERTY RIGHTS

[105]

in operation. although their leadership has gone on to found other companies with similar services.’ In both of these cases. the state employed PMCs to meet state needs in terms of training of troops and territorial control. More recently, Saracen International based in South Africa and related to the now defunct Executive Outcomes, has trained an anti-piracy militia in Somalia (Mazzetti and Schmitt 2011). These cases differ from U.S. practices of engaging PMCs because they occur within the borders of the African states, rather than in an external military intervention. PMC services in training and defense from insurgent groups differ from the sort of service necessary for the protection of property rights. The guarding and police services necessary for the protection of property rights are provided privately through private security companies (PSCs) whose activities include monitoring, guarding, perimeter control, access control, and emergency response. Both PMCs and PSCs are for-profit entities. Michelle Small has created a very helpful table distinguishing the two shown in Table S.1.

THE GENESIS OF PRIVATE SECURITY

With all of the recent interest in private military and security services, one might assume that they are a development of the postCold War era; but their history of mercenary activity dates back to the Byzantine Empire. Private security services in their current form have a storied history as well, beginning in the United States in the nineteenth century with the Pinkerton Detective Agency. The Pinkerton Agency originated during the post-Civil War economic boom, filling a gap in professional law enforcement. The Pinkerton Agency supported what were then relatively new municipal police departments, providing a range of services including property protection, the location of fugitives, and, infamously, strike-breaking

(Morn 1982), Their activities were widely accepted because of the recognized need for security and awareness of the state's inability to [106]

Where There Is No Government

Table 5.1.

SERVICES

(PSCs) VERSUS

PROVIDED BY PRIVATE SECURITY COMPANIES PRIVATE MILITARY COMPANIES (PMCs)

PSCs

PMCs

Commercial Security Protection

Combat

(guarding)

(participation and planning, force multiplier)

Risk Analysis

Military Advice and Analysis

(evaluation of investments)

(threat analysis, response analysis)

Kidnap Response

Military Training and Assistance

(negotiation and hostage expertise)

(tactics, restructuring of forces)

Investigation and Intelligence

Procurement

Gathering

(purchase/production/supply of weapons,

(extortion, fraud, contamination)

equipment)

Crime Prevention Services

Logistical Support

(de-mining, delivery, transportation, maintenance) PSC-PMC Crossover

Humanitarian protection, operations, support, delivery of aid De-mining

Military and police training Hostage situation advice and/or rescue operations

Fisheries protection/Protection against pirates Source: Small 2006.

provide the necessary services. Szymanski asserts “.. . private policing was a crucial component of regulation prior to 1930, and helped to uphold laws against theft, robbery, trespassing, counterfeiting, child abuse, cruelty to animals, pornography, abortion, prostitution, gambling, illicit alcohol sales, and the depletion of wildlife”

(2007). When the Department ofJustice was formed, the Pinkerton Detective Agency trained its agents until a 1893 law, the AntiPinkerton Act, prevented the joint employment of government bureaucrats in the Pinkerton Agency.* By the 1910s the creation of the state police, the increased capacity of municipal police forces, and the creation of the FBI shifted Pinkerton agents out of law enforcement and into more contemporary security services such as guarding (Morn 1982).‘ This shift was consistent with other areas of PRIVATE ENFORCEMENT

OF PROPERTY RIGHTS

[107]

law enforcement that moved from private to state enforcement as state administrative capacity grew (Szymanski 1999). For example, rather than the ill effects of alcohol being fought through the Woman’s Christian Temperance Union or other organizations, as the state

grew in capacity it became the desired definer and enforcer of morality, hence Prohibition. In Africa, PSCs in the contemporary era provide security for resource extraction conducted by state-owned companies as well as international corporations. In these activities the division between

military services and security services, presented above, can be blurred. In the 1990s Executive Outcomes, a PMC, had contracts

with oil and mineral extraction companies such as Texaco, De Beers, Chevron, and Rio Tinto Zinc. Today, GS4 and Delta Protection provide security for mining companies in Lubumbashi, the mining center of the Democratic Republic of Congo, along with a host of private company police and DRC special Mining Police (de Goede 2008). Large multinational corporations and state-owned enterprises engaged in resource extraction need security to prevent theft

and trespass, to ensure that the daily operations go undisturbed, and to protect the investments they have made in both capital and research. This is not just an African phenomenon; natural resource extraction is guarded by private security forces in weak states across the globe and with good reason, as natural resources can provide accessible funding for insurgent groups if they can manage to take control of them (Collier 2009). Yet, private security for resource extraction operations in Africa

has been quite controversial for a number of reasons. One of the primary complaints has been that the use of private security to protect mining operations or oil fields creates “enclave communities” that operate in both spatial and institutional isolation from the countries in which they are nested (Ferguson 2005). Achille Mbembe argues that this sort of enclave economy for resource extraction requires the exit of the state and the fragmentation of authority (2001). The state must be complicit in ceding sovereignty to the companies running [108]

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the extractive industries. When security services for natural resource extraction are contracted out, the local population receives none of the benefits of those services, as they might if they were provided by police. Oil extraction in the Niger Delta is a haunting example of this problem. While the oil facilities are well-guarded, Niger Delta communities suffer from poor policing and tremendous insecurity, exemplified by highly publicized kidnappings, the existence of armed groups and gangs in their communities, and the theft of oil running through the pipelines (Iannaccone 2007). In addition to these criminal problems, oil companies have been lax in their attention to the environmental degradation caused by oil spills and fires related to the pipelines outside the protected enclaves

(Brown 2006). A second criticism of PSCs is their movement beyond security provision to controlling the movement of people. PSC services can extend far beyond the normal activities that one might expect. For example, PSCs in Angola are legally allowed to monitor the movement of people and goods to prevent the unauthorized mining and

trade in diamonds (1994 Diamond Law). PSCs in Angola have also worked with police in civil law enforcement. In March 2006 poor residents from a neighborhood in Luanda were evicted by the police, working with employees of Visgo Seguranca e Protecao, a PSC (Africa Research Bulletin 2008). If state functions regarding the movement of people within a country are contracted out to PSCs,

the line between public and private responsibilities is blurred. Indeed, the role of PSCs in some African countries undermines

both expectations of what the state ought to do and the ability of the state to grow stronger and more efficient.

There is a third problem that follows from the ambiguity between public and private realms: the weakening of the incentives for the state to provide security when government officials become owners of PSCs. A profound conflict of interest exists when government officials benefit economically from the absence of the public good of generalized security. Angola has seen a proliferation of PSCs, from PRIVATE ENFORCEMENT OF PROPERTY RIGHTS

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90 in 2000 to 307 in 2004, with the largest companies owned by senior government officials (Africa Research Bulletin 2008).° De Goede has also noted government involvement in private security companies in the Democratic Republic of Congo (de Goede 2008). State officials who gain economically from their personal interest in PSCs have an interest in poor state provision of security. Involvement of politicians in the private security enterprise contradicts the narrative that PSC activity stems from weak states falling victim to the exploitation of big international corporations; instead, the exploited party is the public. While the corporations are certainly | seeking profit, so are government officials. There are additional political problems created by the role of PSCs, including the use of poorly trained employees with little knowledge of the law, limited governmental oversight of PSC activities; and an ambiguous relationship between PSCs and officially sanctioned law enforcement personnel.’ When the state removes itself from the enforcement of property rights, contracting this responsibility out to the private sector, the protection of property rights ceases to be a public good, and differential enforcement occurs based on what people can afford to pay by way of private protection. In countries where state protection of property rights is a given and PSCs are an additional protection, this is not so much ofa concern. It is not unusual for companies to have private security, especially large corporations. Moreover, if I decide that I want to hire a private security company to protect my house, I can do so to feel more secure. But my situation is very different from that of homeowners in Nairobi who must hire a private security company to protect their home if they are to be safe. For me, hiring a PSC would be supplemental; for a homeowner in Nairobi, it is essential. Corporations and the elites in society can buy the policing services of PSCs. But what are the poor to do? We can look at the situation in Nairobi to see what happens when the state does not provide security for people and property. Nairobi, Kenya, is an economically vibrant city and a trade hub for East Africa. Its population of [110]

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approximately 3 million includes the very wealthy and the very poor. Nairobi is notorious for its insecurity, earning it the nickname “Nairobbery.’ In Nairobi, those who can afford to do so guarantee their security with well-equipped private security firms that provide quick response, professional demeanor, and a visible presence in the community. Driving through Nairobi’s middle-class neighborhoods, one sees evidence of a proliferation of private security firms. KK Security and Securicor officers are far more numerous and visible than the Kenyan police.’ The presence of these private security firms channels insecurity toward poorer areas. It has also changed the techniques used by Nairobi’s criminals. Whereas in the early 2000s,

Nairobi’s thieves and gangs favored home break-ins in middle-class neighborhoods, the rise of private security firms guarding middleclass neighborhoods has shifted their activities toward kidnapping (Gettleman 2009). Abrahamsen and Williams note how this differential in the provision of security affects the poor communities in Nairobi: To a significant extent, crime and insecurity follow the lines of wealth and surveys show that the feeling of insecurity varies greatly according to

income; money buys security in contemporary Kenya, and poor people are more likely to be victims of crime. As the wealthy barricade themselves behind higher security walls and install increasingly advanced

alarm systems, crime moves to the poorer neighbourhoods, where the ‘pickings’ may be less enriching, but more accessible. (Abrahamsen and Williams 2005: 16)

Both wealthy and poor communities have sought private protection of their property rights, but the way in which they have done so is problematic due to the shift in criminal activity to poorer neighborhoods and a proliferation of small arms (Mkutu and Sabala 2007). In poor neighborhoods, where the services of private security firms are prohibitively expensive, Kenyans rely on gangs to enforce their property rights; gangs are a form of privatized security that the poor

can afford.’ PRIVATE ENFORCEMENT OF PROPERTY RIGHTS

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There is ample evidence of the ineffectiveness of the state in providing protection for property and person in Nairobi. People will seek out protection privately if it is not provided by the state, and their socioeconomic status determines what sort of privatized security they will be able to afford—the professional, uniformed services of private security companies or the cheaper services of gangs.

Nairobi, though unique in some ways, is not the only capital city in Africa in which privatized protection of property rights is needed. Accra, Ghana, is very different from Nairobi. Accra is a relatively peaceful place where personal security is less threatened, yet protection of property rights is a significant concern, and extralegal property rights enforcement mechanisms are evident there as well. PRIVATE ENFORCEMENT GHANA:

OF PROPERTY

RIGHTS

IN ACCRA,

LAND GUARDS

Ghana is a country experiencing rapid economic growth. After emerging from a serious economic crisis and negative growth rates

in the early to mid-1980s, Ghana went through a process of macroeconomic stabilization under President Jerry Rawlings. The effects of the economic stabilization program were positive, and from 1995 until 2008 Ghana has consistently registered annual growth rates of between 4 and 6 percent. Economic growth, urbanization, and development have led to an increased demand for land, particularly in the coastal area around the capital Accra and the major port area of Tema, which is just adjacent to Accra. Ghana’s

economic

growth has illuminated

an enormous

problem—the lack of clarity regarding legal property rights to land. Conflicts in the customary system of landholding and the need for clear ownership, transfer, and adjudication mechanisms have

become clear as the demand for land has grown. Litigation over the rightful ownership of land has become so common that sellers make a point of emphasizing in their advertisements when a plot of land is for sale and its ownership is not contested (Wehrmann 2002: 29). [112]

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Originally colonized by the British, Ghana retained a very strong customary authority structure of chiefs and sub-chiefs through the colonial period and into the present day. Chapter 2 discusses how the customary land and authority structures developed in the colonial era. In its present political system, Ghana has guaranteed chiefs and other customary leaders a political role in two ways: the participation in a deliberative body (national and regional Houses of Chiefs) and control over the customary land tenure system. Although the latter is the focus in this chapter, it is related to the former because customary law governing land is recognized in the constitution, and the National House of Chiefs defines customary law.”° Eighty percent of the land in Ghana is held on a customary basis and is not titled, while the remaining 20 percent is land that the state has acquired for purposes of development, some of which has been

allocated to individuals (Larbi 2006: 3). Despite the legal requirement to title land if it is sold, land titling is not pursued as a matter of course. Quite the opposite; it takes perseverance, time, and money

to get a title in Ghana, limiting formalization to the wealthy and the educated elites. The process includes six government offices, and takes three to four years (Kuma 2006; Safu 2006; World Bank

2005). In Accra, studies have found that those registering residential

land have houses which can be described as well above average (World Bank 2005: 23). In addition to the types of disputes that one would anticipate in any metropolitan area over ownership, encroachment, and boundary definition, there are two related categories of land conflicts prevalent in the Ghanaian context resulting from the presence of a large number of customary owners and the confusion regarding land administration. These two types of disputes are: multiple and conflicting sales of the same plot of land; and people selling land that they do not own. The former is the result of problems in the registration and titling of land due to both high costs and an unclear proce-

dure (Center for Democracy and Development 2000). Different PRIVATE ENFORCEMENT OF PROPERTY RIGHTS

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members of a family can sell the same plot of land to different persons. A 2003 study of court cases in Ghana found that most of the disputes are within families (Crook 2003). It also found that land cases are being filed at a rate higher than that at which they are decided, and the backlog in proceedings means that it may take five or six years to hear a case.'! Within customary tenure systems there is a hierarchy of chiefs and sub-chiefs, all with a “customary right” to land allocation. These customary leaders have a responsibility to allocate the land to those who need it. They also give land to schools, hospitals, and other organizations that might serve the greater good of the community. Customary leaders can play a role in resolving land disputes that arise, but they can also be the cause of disputes. A lack of clarity regarding both boundaries and responsibilities within the customary system makes it possible for chiefs and sub-chiefs to sell the same plot. When land becomes valuable, these chiefs are all interested in exer-

cising their rights of sale, which sometimes conflict (Ubink 2008). There are also boundary disputes between clans and families. Some arise from legitimate confusion over boundaries and ownership, and others are the result of fraudulent activity made possible by the unclear tenure system. In Accra these problems are accentuated by overlapping customary claims and authorities. One of the members of the steering committee of the Land Administration Project (LAP) described the problem as follows: [In Accra] there is also a tradition where the chief is there but he doesn’t

control the land. The land is owned by the lagoon gods, therefore it is the chief priests of the lagoon gods who own and control the land. But in practice you find that below the chiefs we have the clans in Accra and each clan takes its own land, so the issue in Accra is which clan owns what and where

are the boundaries. Within the clan are sub-clans and then families and each one of them has boundaries which no one knows so that within the same family you find that different people within the same family system

sell the same piece of land. So Accra is a real mess. (Asiama 2006)

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Conflicts are common throughout Accra over land that has been in the customary arena. However, privately titled land is also the subject of disputes, and even government property is vulnerable. In one notable case from 2009, government land that was being used as a cemetery in Bortianor, Accra, was taken over by private developers who began building there without permission. When the heavy rains began, previously buried human remains were exposed, creating both social and health concerns (“Encroachment on Govt. Lands” 2009). In response to these serious problems the Ghanaian government began a major policy initiative to overhaul the country’s land laws and administration. The first phase is the Land Administration Project, which is intended to create a fair system of land administra-

tion that promotes security (Hacibeyoglu 2008). The LAP is a response to public demand for protection of land contracts with the ultimate goal to promote economic growth. However, this reform is gradual, and the LAP is only the first phase of a project that is anticipated to take decades. Meanwhile, the problems of property rights in urban and peri-urban Accra are immediate. The government has been unable to enforce boundaries, and ownership and dispute resolution in state courts is extremely slow (Center for Democracy and Development 2000). Landowners concerned about encroachment and/or illegal sales of their property fill this vacuum of state protection through private means. Since at least the 1990s, the private protection of property in Accra has been contracted to people referred to by property owners as Land Guards. These are more than the typical house guards whom one sees all across the developing world. Land Guards are individuals or groups who are paid by private citizens or by chiefs and other customary authorities to protect land and sometimes houses from encroachment or occupation. Unlike the typical house guard, who is unarmed and is hired to make sure no one comes into

a home while the family is away, Land Guards use force or the threat of force to protect land and houses from squatters and trespassers. PRIVATE ENFORCEMENT OF PROPERTY RIGHTS

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A sanguine view of the Land Guards is that they are former security officials, formally trained, such as retired police or members of the armed forces, who contract out their services (Hughes 2003: 73). The implied restraint in this hopeful point of view is not evident in more common portrayals of Land Guards as gangs of heavily armed youth. Indeed, police have prosecuted Land Guards for extorting money from community residents in exchange for their services in “protecting” local property rights (Modern Ghana 1999). Popular opinion of the Land Guards is mixed. They are widely viewed to be necessary for want of a better alternative (Center for Democracy and Development 2000; Modern Ghana 1999), but at the same time they are also portrayed as a threat to local communities, a menace to society, and even “nation-wreckers” (Ghana Busi-

ness News 2009). The foremost problem associated with Land Guards is their use of violence. Whether acting as individuals or in groups, they are well armed in order to deter those who would trespass on land and to resolve disputes. The use of force or threat of coercion is critical to their ability to enforce property rights, but this has predictable

negative externalities because any use of force is illegal. Numerous cases have been reported in the Ghanaian media of Land Guards using violence against police, citizens, and each other in a kind of

gang warfare (Agboton-Johnson et al. 2004; Daily Guide 2007; Dougan 2004). They have also been known to destroy property, steal building supplies, and extort money from legitimate property

developers (GNA 2005). Land Guards have also tangled with the government as it has tried to take action against illegal settlements (Attenkah 2010). Land Guards are connected with the proliferation of illegal weapons in and around Accra. People who use force illegally need weapons to do so, and in Ghana these weapons are obtained through illegal and informal channels. Although some Land Guards rely on their physical presence and clubs or sticks to deter trespassers, a fair number of them are armed, contributing to the illegal market in [116]

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small arms in Ghana (Donker 2007; Agboton-Johnson et al. 2004; Aning 2005). In one incident from October 2009, the police arrested 14 Land Guards in a suburb of Accra who had beaten up four construction workers working on a piece of property that had been purchased from a chief. When their vehicles were searched, the police found “four pump action guns that were fully loaded with cartridges, seven machetes, 43 live cartridges, six used empty cartridges,

a jack-knife and land documents” (Ghana News Agency 2009). The proliferation of a trade in small arms within Ghana raises the possibility of increased violence in other sorts of illegal activities, such as home invasions, muggings, and petty theft. One final, critical problem stemming from the existence of Land Guards is that they do not always defend the property rights of the legal owner; they are not always on the side of the law. They may be a substitute for state enforcement mechanisms but, unlike the state,

Land Guards are not entangled by the necessity of accuracy. They are free to act on behalf of the people who pay them, even if these employers do not have legal property rights. When Land Guards initiate protection contracts themselves, as criminal gangs running extortion rackets or selling their collective services, they are even further removed from concerns of the legality of particular contracts, the actual owner of the property, and its specific boundaries. Ghanaians take on the expense of employing Land Guards instead of turning to the police for two reasons: distrust and inefficiency. In the past, the police were complicit in the land problems in Ghana. Kasanga and others infamously reported police and other

government officials taking gifts of land from customary leaders in

exchange for turning ablind eye to land sales (Kasanga et al. 1996). Recent reforms have made this type of overt cooptation of the police unlikely, and a campaign is underway to build people's trust in and respect for the police force. In 2006 billboards all over the capital city and large regional centers include statements above the adver-

tising such as “The police—a friend in need and indeed!,’ “You and the police can make a difference!” and “The police—we protect PRIVATE ENFORCEMENT

OF PROPERTY RIGHTS

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your civil rights.” Although there remain problems with the police force in Ghana, it is prompt in its response to court orders and efficient when acting on behalf of the court in and around the cities

(Aning 2006; Frimpong 2006). It will, however, take more time and positive experience to dispel public impressions that the police cannot be trusted. Yet, even if everyone in the country developed a faith that the police would carry out their duties within the bounds of the law, there would still be frustration regarding their enforcement of property rights. One Ghanaian commentator sums up the problem as follows: Ifa man’s title to his land is challenged and there are in place effective mechanisms for protecting the land or his title, he would not take the trouble to employ a “Land Guard,” with all the attendant consequences. The reality is

however that when he goes to the police for help, he is told that land matters are civil matters for the courts. Ifhe goes to the court, the case takes on the average about twelve years to be completed by which time the person com-

plaining would have lost all interest in the land or the purpose for which the land was acquired would have been defeated. To protect his interest, he employs “Land Guards,” because if he waits for a court decision, he will lose

everything. (Addy 2006)

Involving the police means involving inefficient legal mechanisms in order to achieve resolution to a problem. While 12 years in the courts may be an exaggeration, the courts are full of drawn-out land cases.'° Employing Land Guards is a way of avoiding long legal disputes over land that can impede its income-generating or residential purpose. Given the problems created by the Land Guards, particularly the overt criminal activity, it is not surprising that the Ghanaian government has taken action against them by both outlawing their employment and combating their more violent actions through law enforcement activities. Land Guards were banned in 2004 and again in 2007, though this has not eliminated their activities. They [118]

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are still active in Greater Accra, creating problems for police and citizens (Antonio 2009). Indeed, we should expect government efforts to eliminate the Land Guards to be futile as long as there is no alternative enforcement process in place to protect people’s land rights. Land Guards, like drug dealers, arise out of a demand for their services. If the Ghanaian government is going to eliminate the Land Guards, they have to eliminate the demand for their services. The Land Administration Project is the first necessary policy step for doing so. A clear framework for land administration will lead to clarity of registration and titling and presumably reduce property disputes. However, clarity of land ownership will need to extend to customary land as well as titled land if Land Guards are to be eliminated. Ghana's efforts to reform its land administration system may provide the framework for the eradication of Land Guards, but it must be complemented by an active enforcement mechanism. Legal change without active enforcement will not lead to the protection of property rights. Ghanaian citizens who would choose to obey the law and refrain from illegal activity must have a reliable mechanism for enforcing their property rights. As economic growth and urbanization continue in the Greater Accra area, this will be an increasingly pressing issue. If the government can establish an accessible legal alternative to the Land Guards, it will lay the foundations for further economic growth. If not, the Land Guards and the criminality that accompanies their activities will persist. ASSESSING

SOCIAL WELFARE

As in the other chapters, this section will assess the provision of social welfare by specialists in violence according to the rubric from chapter 1 which suggests that socially beneficial institutions are: predictable, accessible; equitable; effective; and restrained. I evaluate the impact that specialists in violence have on the society vis-avis the state.

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Predictability

Because private security providers work for pay, their actions are predictable: they will enforce the property rights of those who pay them to do so. They rank high on the assessment rubric. Even when their activities are illegal, they are predictable. However, when specialists in violence move from service provision to extortion, their actions become less predictable. There is a difference between a property owner initiating a contract with a Land Guard and that same property owner being forced to pay protection to a local gang in order to ensure the safety of their person and property. Although both are illegal activities in Ghana, one transaction is contractual

while the other predatory. A similar differentiation is noted by Venkatesh with regard to the roles that both street gangs and hustlers play in an urban Chicago neighborhood (2006). All of their activities are illegal, but some illegal activities are more tolerable for local communities than others. In the Ghanaian case, Land Guards

can be more predictable than the state since the state has not been able to establish clear property ownership. Moreover, since state processes are not always clear or adequately specified, the state would only qualify as a medium on the assessment rubric.

Accessibility

Finding a government court with trained judges resolving disputes based on law and precedent may be difficult in many rural areas, and the government ranks medium to low in terms of accessibility due to the costs and time involved. Even in Accra, use of the courts

necessitates the capacity to wait for their decision. Specialists in violence are accessible, and they gravitate toward the need for their services. For individuals, hiring someone to protect property is a local affair. Local knowledge and the web of relationships that characterizes communities, both urban and rural, make finding a [120]

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specialist in violence relatively easy in comparison to obtaining other means of property protection. Education or experience in

the world is not necessary to understand that to keep squatters off your property you need someone to stand guard. More formalized means of property protection, such as acquiring legal title that would then be enforced by the courts, require greater knowledge and sophistication. The engagement of Land Guards began because of the vacuum created by the slowness and complexity of legal enforcement processes. In spite of all of the negative press coverage of Land Guards, they are necessary. People in Accra who want to protect their property from squatters, encroachment, or illegal sale do not trust the existing mechanisms for the enforcement of civil law. They hire Land Guards as a private solution to the problem of insecure property rights.

Equity

Hiring a specialist in violence requires money. As long as a person has the resources to pay, Land Guards and other specialists in violence do not discriminate on the basis of ascribed characteristics. They are just as willing to defend the property of someone who holds land illegally as they are the one who holds land legally. Indeed, given that the former category might pay more, there would be a preference for protecting the property of those who have no recognized claim to it. The lack of equity in the services of specialists in violence is a socioeconomic, class-based form of discrimination. An

overall assessment of the merits of privatized security agents has to

take into consideration the lack of equity (and indeed availability) of their services for those who cannot afford to pay them. This inequity in security can play out in several ways. Either the wealthy get security and the poor do not, or the wealthy get the most sophisticated and reliable types of security (Securicor, KK Security, and PRIVATE ENFORCEMENT OF PROPERTY RIGHTS

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other professional, legal providers) while the poor rely on gangs and ad hoc security agents such as Land Guards to enforce their property rights. This exposes the poor to the negative externalities that accompany the activities of these groups. Ironically, the differential provision of security based on socioeconomic status impinges upon the security of the wealthy by making them attractive targets for the criminal activities of Land Guards.

Effectiveness

In the examples provided in this chapter, specialists in violence are more effective than the state in providing property protection. If they were not, there would be no market for their services. Only one of the groups described, security guards employed by companies to provide additional security, would be needed if the state provided adequate protection of property rights. Again we see that the specialists in violence rank high in terms of effectiveness, and the state is, at best, a medium because of the length of time it takes to

determine ownership and enforce decisions.

Restraint

Land Guards rely on the illegal use of force to provide security for property rights. They meet the criteria for the lowest score on the issue of restraint in the assessment rubric; “processes rely on violence or the threat of violence, intimidation or other harm.” Low

scores in this area indicate a range of community concerns regarding the activities of both gangs and Land Guards. While there are some activities undertaken by both groups that are fundamental to economic activity and growth, others such as theft, extortion,

and assault are harmful to the community. The activities of PSCs are less likely to have such obvious negative externalities because they are legal, sometimes regulated, and in the best of circumstances [122]

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characterized by professionalism.'* Because the negative externalities are being shouldered by the poorest and least influential people in the society, the movement by the government to “internalize” them by providing the public good of security that could be shared among all is less likely to occur. The state provision of services ranks high on the assessment rubric where it exists because of the state’s ability to use force and the threat of force legally.

THE POLITICAL GEOGRAPHY

OF POWER

IN AFRICA

Land Guards, gangs, and other specialists in violence fill a gap in

government enforcement of property rights. The examples considered in this and the following chapter are urban enforcement mechanisms that have developed in capital cities to compensate for the absence of state enforcement of property rights. They are not in the geographic hinterland far from the center of power. This point is worth emphasizing because it stands in contrast to the idea that state power radiates from the center of African states to the periphery, lessening as it extends outward (Boone 2003; Herbst 2000). In Accra there is no isolated geographic area in which property rights are unrecognized, but a generalized lack of enforcement mechanisms and effective dispute resolution, leading to a sense of insecurity in property owners. The competing legal sphere of customary law further confuses land ownership and transactions through the presence of plural legal systems. When privatized security is needed to protect property from encroachment in the capital cities of countries, we should rethink our understanding of the political geography of power and recognize state strength as dependent on not just location but also policy area and previous state decisions. In the Ghanaian case, at independence there was a decision to recognize the authority of customary leaders over land allocation. In Kenya, there have been a number of

decisions over time not to recognize informal settlements and to PRIVATE ENFORCEMENT

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use the allocation of land to buy political support. While these few cases are insufficient evidence to completely reject theory regarding the geography of power, they do suggest amendment. State strength is multidimensional. It is not simply a function of geography, but also of institutional makeup and history. While it would be hasty to completely reject the arguments regarding the political geography of state power, they need to be tempered with an understanding that there may be ungoverned areas within the center of state power, for example slum areas in which the government is unable to assert control. In addition, there are policy areas where previous political agreements, institutionalized pacts, or a lack of political will prevent the expression of state power. Ghana is a relatively strong African state, yet in the area of property rights there is an ungoverned policy area, rather than an ungoverned geographic area. The lack of governance regarding land rights is a result of compromises the Ghanaian state made with traditional authorities over time. By empowering the chiefs to control land allocation during the colonial era and consolidating this power through the regional and national Houses of Chiefs, the lines of state

authority have become confused. The Ghanaian state has created a constituency with a vested interest in preservation of the status

quo. The recognition of chiefs’ control over land, combined with the inefficiency of titling, has created an arena of uncertainty from which some traditional authorities have gained economically.'’ This decision has pitted the interests of customary leaders against the well-being of the general public.

CONCLUSIONS >

While privatized enforcement of property rights may be necessary, it creates social welfare externalities. When Land Guards assume policing functions for landowners in the Greater Accra area, plots of land are defended against encroachment, but violence and illegal [124]

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activity have proliferated. Land Guards’ use of force has moved beyond the enforcement of property rights into other illegal activities such as extortion, theft, and property damage. Privatized security services can foster the conditions necessary for economic growth by protecting the property rights of landowners. Yet, paradoxically, they may also threaten the human security of the communities in which they work. In multiple contexts across Africa, poorly paid private security agents collude with criminals against clients and others in their communities to gain from the lack of public security, not only through the continued demand for their services, but also through theft (Abrahamsen and Williams 2005;

Mkutu and Sabala 2007). While there is a public interest in property rights protection, there is also a general public interest in crime prevention and physical security. Activities of specialists in violence bring these two interests into tension. Land Guards mirror at a community level what we see in the worst cases of private security in the resource extraction industry, where there may be protection of the physical operations of extraction, but outside the perimeter of control there is a proliferation of arms and crime (Iannaccone 2007).

WHITHER

THE SOCIAL CONTRACT?

The Weberian definition of the state is based on the use of violence,

the state having a legal monopoly on the use of force. Property rights are only legally defined by the state, and the principal legitimate use of force by the state is their protection. The state, from Weber's perspective and in social contract theory more generally, protects property rights in the person (protection from physical harm) and their possessions. In both Ghana and Kenya the state has neglected the legal definition and enforcement of property rights. Citizens and companies within these states have turned to privatized, market-based solutions to their insecure property rights. Should we then think of privatized security as a problem or a solution? This is a question with an empirical and a PRIVATE ENFORCEMENT

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theoretical answer. Empirically, PSCs meet a need. This chapter has considered the role played byLand Guards, an illegal means ofmeeting the need for enforcement of property rights. In Ghana the demand for Land Guards has been so significant that multiple attempts to ban them have been ineffective and their services persist. However, there are legalized and regulated private security firms that operate effectively in different African contexts. South Africa has effectively regulated PSCs and individuals acting as guards by requiring them to register, as well as placing legal limitations on their activities. The South African government also provides a mechanism for complaints against individual security guards and security companies to be registered with the government (Minnaar 2007). An emphasis on neighborhood policing in

South Africa has also led to public/private partnerships in community policing efforts, with security companies operating with the police in responding to crime. The Democratic Republic of Congo (DRC) also has public/private partnerships in policing in Kinshasa and Lubumbashi. These partnerships are financed by the private security companies, who need to bring the police along because the police are legally allowed to carry arms and the PSCs are not (de Goede 2008). Combined policing efforts in the DRC have been less positive than those in other contexts. De Goede anecdotally reports the comments of a security manager of a large mining company regarding the public/private partnerships, “I can’t do without the armed police, but for every policeman, I have a private security guard to supervise him” (2008: 61). Yet, the experiences of mining companies, which in any country in the world would employ private security to supplement the local police force, are not the same as those of individual citizens living in residential communities. Looking to the empirical effects of private security forces ‘on neighborhoods in South Africa and Kenya, there is a disturbing picture of PSCs acting as a substitute for the state, rather than as a supplement. In South Africa, as the services of private security companies are employed, the police have virtually disappeared from the [126]

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streets of residential neighborhoods (Minnaar 2007). In Nairobi, Kenya, while there may be less of a causal relationship between the presence of private security services and the absence of the police, security companies’ mobile response units are visible throughout middle-class neighborhoods, while the police are not (Mkutu and Sabala 2007). In both cases, there is a visible presence of private security firms and absence of the police. This leads us to the theoretical problem of how we understand the state when it has abandoned its most basic raison d’etre—the provision of security. Service provision is not the same as supplying a public good that can be shared by all in society. In the best of circumstances, policing and property rights protection are public goods provided by the state to all levels of society. State unwillingness or inability to protect property rights creates a demand for non-state actors that can do so. Private security companies sell their services to the rich and middle class; gangs and Land Guards sell their services to the rich and the

poor alike. Protecting the property rights of citizens is critical to the social contract, in which citizens exchange their allegiance and money for security of their person and property. If the state does not provide this public good and citizens have to turn to the market and other specialists in violence, then the state has lost its monopoly on the use of force. Looking from the level of the state down to the level of the community, this makes some scholars uncomfortable. Absent

the provision of public goods, Clapham would argue that the state “degenerates into a mere conspiracy for oppression and extortion” (2002: 185). On the other hand, Susan Strange, who argued that the function of the state in the international system was overstated by political scientists, would not be so concerned. Looking at the role of the mafia in providing security, Strange argues: Like a state, too, a mafia is an economic parasite, in the sense that it raises

revenue from civil society by demanding payment for protection. Governments call this taxation to pay for public goods when they do it, extortion PRIVATE ENFORCEMENT OF PROPERTY RIGHTS

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when the mafia does it. The only big difference is that in many states, but not all, the rules on taxation are clearly laid down in advance and the

demands for payment are not, for the most part, arbitrary and ad hoc as are those of the mafia. (1996: 110-111)

These views examine the role of the state from a normative perspective and from the center or the national level, out to the periphery. One of the goals of this book is to take a different perspective and look at what is happening in communities. There we observe two distinct trends. First, when the state does not enforce property rights, specialists in violence are available to do so. Which type of specialist is hired dependends on socioeconomic status. Second, illegal specialists in violence lead to more negative externalities at the community level than legally recognized specialists in violence such as private security companies.

Although this study is focused on common law Africa, the presence of specialists in violence enforcing property rights illegally in multiple study sites leads us to the conjecture that they may be more widespread. Where the state does not enforce property rights, alternative enforcement mechanisms will appear, some of which have negative externalities for the communities in which they function. In the following chapter, another example of specialists in violence enforcing contracts in urban Kenya will be analyzed, along with competing state and nongovernmental institutions, all of which function as enforcement choices for tenancy contracts in a single community.

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CHAPTER 6 In Search of Order State Systems of Property Rights and Their Failings with Rachel Sweet Vanderpoel'

e would generally expect that legal property rights are more likely to be enforced in urban areas than rural areas, based on the idea that judicial and administrative capacities decline the farther an area is from the center of power in a country. Additionally, literature on the African state suggests a preference for the interests of urban populations over those of rural populations on the periphery of the state (Bates 2005). In this chapter we challenge this understanding of the periphery, observing that with increasing patterns of urbanization in Africa we see pockets of statelessness developing in capital cities; informal communities with high population densities that lack formal structures for conflict resolution,

police presence, and law enforcement. Our research in one of these communities, Kibera settlement in

urban Nairobi, Kenya, challenges a traditional understanding of the geography of state power and illuminates a complex web of contractual arrangements and enforcement mechanisms for property. This chapter sheds light on the efficacy of state policy with respect to property rights in urban areas and illustrates the variety of institutions,

bureaucratic entrepreneurs, NGOs, and specialists in violence, which substitute for the state in the enforcement of property rights. It proceeds in four parts. First, the argument regarding the political geography of state power is presented. This is followed by a history and description of the study site. The different mechanisms available to residents to enforce their rental contracts are then detailed. Finally, we apply the same assessment measures of social welfare that have been used in the preceding chapters.

THE GEOGRAPHY

OF STATE POWER

The effectiveness of government administrative structures in rural

areas far from the center of power has been questioned in the literature on the state and development (Boone 2003; Herbst 2000) and in work on public administration in Africa (Olowu and Wunsch 2004). The standard view, substantiated by empirical studies, is that the strength of the state is greater in the center of the country—the area nearest the capital city. Power, understood in this context as the reach and effectiveness of state institutions, decreases as one moves

away from the capital city, like ripples of water that lose their strength the farther they move from the source of disturbance. The implications of uneven state power include: the dominance of regional strongmen or warlords in regions outside the state’s control; poor health and education services; and accentuated poverty resulting from poor infrastructure and limited market access. While the most serious implications of this limited reach of the state for those on the periphery are limited access to basic services and personal security, we would also expect their legal property rights to be poorly enforced relative to those of the urban population. One can find many areas of rural Africa that “seem to lie entirely

beyond the shadow of the law” (Ellickson 1991: 283). Chapters 2, 3, and 4 all address the challenges of property rights enforcement in rural areas. In this chapter, like the previous one, we examine an [130]

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urban area and challenge the assumption that being in the geographic center of state power means access to state enforcement

mechanisms and “better” implementation of statute law. This chapter expands on the reasons for questioning that assumption.

KIBERA SETTLEMENT

Kibera is centrally located in Kenya's capital, Nairobi, and is the largest informal settlement in Sub-Saharan Africa.” The people who move into Kibera are typically migrants from rural areas looking for an inexpensive place to live and work. Residents first settled in Kibera in 1912. The permanent population, estimated at 700,000,

includes several adult generations born and raised in the settlement. Studying Kibera allows us to examine the property rights of urban people who are not wealthy or in any way privileged. Despite their proximity to the center of state power, residents have serious difficulties with the definition and enforcement of their property rights. Squatter settlements in Kenya began during British colonization as a result of colonial land policy. The Crown Lands Ordinances of

1902 and 1915 designated all “empty” land in Kenya as the property of the Crown. This policy also prevented Kenyans from owning property, compelling Kenyan employees of the British Government, provided with neither housing nor basic services, to become squatters on government land (Syagga 2002). Kibera began in 1912 as a temporary residence site for former Sudanese soldiers who had fought for the British in World War I. Their descendents, still called Nubians, continue to live within the

settlement. Nubians comprise approximately 1 percent of the population of Kibera. Their long tenure in the slum has given them a strong economic role and social structure (Bodewes 2008). “Kib-

era” is the Nubian word for forest. The colonial administration offered Nubians permits to construct temporary structures, but the land remained reserved for the government under the Crowns IN SEARCH OF ORDER

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Land Ordinance (Bodewes and Kwinga 2003: 222). This policy ensured that houses would remain low-quality, as permanent structures were prohibited. In 1928 residents of Kibera were required to prove their Nubian descent and were declared to be Tenants of the Crown, “meaning

the Commissioner of Lands could terminate their tenancy at any time ... [and] the government retained the right to demolish any structure” (Bodewes 2005: 34). The colonial government attempted

to remove Nubians from Kibera in 1932, asserting that they did not possess title deeds. Their efforts were unsuccessful and were not repeated as the Kenya Land Commission “expected that the Sudanese would eventually die out and no new settlers would follow

them to Kibera” (Bodewes 2005: 35). Instead, Kibera became an entry point for rural migrants and railway workers employed by the British. The British government turned a blind eye to settlement in Kibera, allowing residents there to circumvent the restrictive

housing policy. In 1950 the British government granted official permission to the Nubian community to remain in Kibera. Following Kenya's independence in 1963, waves of landless people migrated to urban areas in search of employment. The new Kenyan government retained the land policies of the colonial regime, and inhabitants of Kibera did not receive property rights to the land they occupied. The Crowns Land Ordinance was renamed the Government Lands Act and the president was given authority to allocate unalienated government land, including Kibera (Govern-

ment of Kenya 2005S: 8). In line with its policy of “slum-clearance,’ the Government of Kenya declared Kibera to be government land and officially terminated Nubian claims to the land in 1969. In the 1960s and 1970s, the state began to reclaim the land that had been allocated to the Nubians in order to construct middle-class housing estates. Though the Nubian Member of Parliament, Yanus Ali, pre-

sented a motion that passed unanimously, requesting that Nubians receive title deeds for the land they occupied, it was never implemented and the government continued to claim the land (Church [132]

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2002). In spite of the government control of the land, settlement continued. The 1960s and 1970s brought an influx of Luo tenants fleeing violence in rural areas following the assassination of a Luo cabinet minister and KANU Secretary General, Tom Mboya. As Luos settled in Kibera, the ethnic diversity ofthe settlement increased dramatically. A further influx of residents arrived in the 1980s, when the government cut social spending and assumed a more lax attitude toward settlements. Despite Kibera’s lack of official recognition in the eyes of either the British or Kenyan governments, local government officials with the title of “chief,” continue to grant permission for the construction of houses in return for payment, although this falls outside their legal authority.* Chiefs are members of the Provisional Administration and, as such, have the right to grant temporary occupation licenses on government land (Neuwirth 2006: 93). However, housing in Kibera is far from temporary and those receiving permission from the chiefs to build are acting as landlords. This practice, along with a lack of political will to enforce the formal rules and the absence of an official housing policy in Kenya, has allowed people to continue to construct dwellings without any clear lease or title to land.

HOUSING

AND TENANCY

CONTRACTS

IN KIBERA

Property rights in Kibera are based on informal tenancies. Landlords in Kibera are referred to as “structure owners” as they have no legal title to the land on which they construct and rent dwellings. Not surprisingly, structure owners are typically from a higher socioeconomic class than tenants. In a 2002 survey of 120 structure

owners, the majority (80-90 percent) were absentee landlords living in middle-class housing estates outside of Kibera who hired agents to collect rent on their behalf. Fifty-seven percent of the structure owners were public officials (Syagga 2002). This group of IN SEARCH OF ORDER

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officials clearly has a vested interest in maintaining the status quo,

but it is unclear whether or not they actually exert influence to block reforms. Further, the fact that the majority of structure owners are from the Kikuyu or Nubian communities, while tenants tend to be ethnically Luo, Luhya, and Kamba, results in an ethnic division of owners and tenants. Property disputes in Kibera revolve around the structure owner/ tenant relationship rather than the physical land of the settlement. The most common areas of dispute are rent payment and eviction. Rental disputes fall into two distinct categories: cases in which the structure owner increases rent, usually failing to provide due notice; and cases in which the tenants refuse to pay. Evictions may result from both forms of conflict or other factors, including a desire to house tenants who are willing to pay higher rent for the same structure.

Property disputes are highly emotional and can become violent as they overlap with ethnic identity, political patronage, and socioeconomic status. One Kikuyu resident structure owner reported that her tenants “disrespected” her by urinating into bags and throwing them at her door to assert that they would not be paying rent. Following the owner's request for payment of rent, the tenant, awoman, stabbed her in the head (JG 2007). The perception among tenants in Kibera that they are being exploited by members of different socioeconomic, tribal, and/or religious associations lends symbolic

meaning to property disputes, compounding the potential for these conflicts to become violent. Property disputes often serve as proxies for wider, national, political conflicts, exploding when political leaders see the opportunity for gain from civil unrest. In a 2001 incident, Raila Odinga, now Prime Minister, announced that tenants should reduce their monthly rent payments by SO percent due to inadequate housing conditions. Violence broke out between Luo tenants and Nubian structure owners in reaction to this statement, resulting

in at least 25 deaths (Bodewes 2005). This outbreak of violence was explicitly political as the president at that time, Daniel arap Moi, was [134]

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talking about recognizing the property rights of the Nubian community and there was fear that Kibera would “be carved up” (Bodewes 2008). Raila Odinga’s statement mobilized his Luo base of support and shifted political power in Kibera significantly.

METHODOLOGY

This chapter draws on interviews and focus group discussions to explore the types of resolution mechanisms available to residents of Kibera when they have tenancy disputes (see the Appendix for a complete list). Initial interviews were semi-structured and were

conducted with tenants in Kibera to determine the most common property conflicts. Contributions were sought from stakeholder groups within the settlement, representing differences in tribe, religion, property ownership status, and socioeconomic status. In total,

the study (see Table 6.1) draws on interview data from 76 tenants and 15 structure owners (both resident and absentee).

STRUCTURE

OWNERS

Property Cases Surveyed at Legal Aid Clinic, Kibera Tenants

11

Structure Owners, All

6

(Resident)

(S)

(Absentee)

(1)

Total Cases

17 Interviews and Focus Group Discussions

Tenants

65

Structure Owners (Resident)

9 74

Total Total number of contributions Tenants

76

Structure Owners

15

.

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Interview sites were selected in different villages within the settlement due to variations in the nature and frequency of property dis-

putes (see Figure 6.1 and Table 6.2). Further, because ethnic affiliation can influence the selection of a

property dispute resolution path, respondents from all major ethnic groups in Kibera (Luo, Kamba, Luhya, Kikuyu, and Nubian) were interviewed (see Table 6.3). Cases of 24 individuals personally involved with property disputes were also surveyed at a legal aid clinic within the settlement. Individual perceptions of the fairness and accessibility of the available resolution mechanisms were also assessed. . Interviews in Kibera revealed multiple paths for the resolution of property disputes that include formal government mechanisms, informal action by bureaucratic entrepreneurs, illegal ethnic gangs, and alternative dispute resolution. To assess formal mechanisms of dispute resolution, we conducted interviews with local government

officials, including three chiefs and assistant chiefs, a member of Nairobi City Council, and representatives of the two police forces with jurisdiction over Kibera.* Chiefs and assistant chiefs are the government representatives closest to the community. They have offices within Kibera, and often exhibit the entrepreneurial behavior discussed in chapter 3. We also sought the perspectives of officials at the provincial and national levels, including the Deputy

Table 6.2. AREA OF KIBERA HOME TO RESPONDENTS (FOR THOSE VOLUNTEERING THE INFORMATION) Gatwekera

18

Laini Saba

18

Makina

10

Mashimoni

8

Lindi

6

Soweto East

6

Kianda

4

Raila

3

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Commissioner of Lands, the Chief Registrar of Lands, the Deputy Permanent Secretary of Lands, the District Commissioner of Nairobi West, and the District Officer of Kibera.° We identified informal systems of governance in Kibera as well as

those formal systems discussed above. Informal governance existed lage elders were interviewed, in addition to nine members of the Kamkunji (also known as the Taliban), a Luo gang and the largest of its type in Kibera. Additionally, community-based organizations, Kenyan nongovernmental organizations (NGOs), and legal aid personnel provided guidance for the research. Both the village elders and the Kamkunji represent alternative sites of power within Kibera distinct from, and often in opposition to, formal legal authority. Both groups provide conflict resolution that may substitute for, or supplement the formal options. For example, village elders provide chiefs with information about incidents within the settlement in exchange for a portion of the payments extracted by the chief.

ENFORCEMENT

REGIMES >

There are four competing resolution processes for disputes between structure owners and tenants in Kibera. First, the Rent Tribunal is

the formal avenue of property dispute resolution offering a legal framework for housing conflicts arising in low-income areas. Second, [138]

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chiefs and assistant chiefs, appointed as public officials under the Provincial Administration, demand payment for enforcing property rights and thus constitute an informal avenue for addressing these disputes.’ Third, ethnic gangs throughout Kibera offer conflict resolution based on violence or coercion. Lastly, there are community based NGOs, which use alternative dispute resolution (ADR) for rental conflicts.

RENT TRIBUNALS

The Rent Tribunals were created by the Kenyan Rent Restriction Act of 1982 (Cap. 296, sec. 4) as a formal mechanism for arbitrating

rent disputes in low-income areas. The act stipulates that tenants paying less than 2,500 KSHs per month in rent represent “protected tenancies” (Kenya 1982: sec. 2[c]). Landlords must receive permission from the tribunal before evicting or increasing the rent of any tenant in this category. Additionally, both tenants and landlords may bring cases before the Rent Tribunal if the other party is not upholding their contract (e.g., refusing to pay rent, demanding increased rent, or threatening eviction). While Kibera is government land and the resulting property regime is not formally recognized, the Rent Tribunal nonetheless claims jurisdiction over the settlement to protect the terms of landlord-tenant agreements. The Tribunal sits in Nairobi’s business district, approximately a 7-kilometer walk from Kibera. Although the Rent Tribunal offers formal protection to tenants of Kibera and residents of Nairobi’s other informal settlements,

respondents indicated they would be unlikely to take a case there.* Indeed, very few tenants even know about the Rent Tribunal (GD 2007). Those who knew about the Tribunal provided five main reasons why it is avoided. First, it is too slow, taking anywhere from two to five years to resolve a case. During this time, a tenant already would have been forcibly evicted or would have hired gang IN SEARCH OF ORDER

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members to prevent the owner from collecting rent (DO 2007).

Second, filing a case is perceived to be prohibitively expensive, as the filing fee is 800 KSHs, over twice as much as the average tenant

pays per month in rent (which is about 300 KSHs). Third, the Tribunal is perceived to be biased: while landlords typify it as a “tenant’s court,’ tenants have a very different perspective and see the Tribunal as favoring landlords. Hilary Korir, the chairperson of the Rent Tribunal, admitted that “not a single landlord has been charged

with going against tenancy agreements in the last year” (Aron 2007). However, structure owners are also hesitant to bring a case before

the Tribunal, as they are afraid that their structure will be categorized by the Tribunal as “inadequate housing” with a maximum monthly rent of 100 KSHs, reducing earnings by approximately two-thirds. Fourth, the Tribunal has no enforcement mechanism.

The Tribunal cannot remove people from a property and it lacks the coercive power to compel rent payment within Kibera (SO 2007). The lack of an enforcement mechanism that operates within the slum reduces the authority of the Tribunal.

CHIEFS AND ASSISTANT CHIEFS

Chiefs in Kibera offer an informal system of dispute resolution. Chiefs are not leaders of ethnic groups, but government appointees with legally defined responsibilities and specific territorial jurisdictions. Four chiefs and eleven assistant chiefs administer Kibera. While formally employed by the Provincial Administration under the central government’s Office of the President, chiefs in Kibera

operate in areas outside their specified authority, require payment for service, and rely on violence to enforce decisions. These chiefs

are bureaucratic entrepreneurs, exhibiting rent-seeking behavior in exploiting their formal office to secure personal gain. In this manner, chiefs constitute informal actors as their practices exceed legal responsibilities. [140]

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Chiefs rotate locations within the city on an annual or biannual basis and cannot exercise jurisdiction in the area in which they live (Doka 2007). In Kibera this means that chiefs often lack an accurate understanding of the settlement, creating a demand for knowledge and advice from village elders from the community. These wazee wa

community itself.’ Elders generally collect bribes from tenants on behalf of the chiefs and take a share themselves.'° In Kibera, chiefs function as the first point of contact for speculative structure owners. As Kibera occupies government land that is outside the legal regime, purchasing property requires social networking with chiefs as the authority figures on the ground. Throughout the history of the settlement, chiefs have illegally allocated land to prospective structure owners in exchange for payment. Despite the consensus that “Kibera is now full,’ chiefs continue to allocate land. When a current structure owner wishes to sell his units, he and the new owner will meet together in the

chief's office and the chief will authorize the transaction and require both parties to sign a written agreement (Doka 2007). This behavior exceeds the formal, legal duties of the office of the chief and

gives some economic insight into why the informal settlements in Kenya continue to grow.

When Kibera residents experience a rent dispute or eviction threat, they may bring their case to the chief with jurisdiction over their village. However, the pre-existing relationship and pattern of payments established at the initial purchase of the structures tend to bias chiefs toward the owners. Indeed, tenants indicate that struc-

ture owners have usually already provided a payment to the chief before tenants arrive at the office to lodge their case. Regardless, tenants are also expected to pay the chief in order to secure an audience (HA 2007). Since structure owners have a higher socioeconomic status than tenants, they can pay more, giving chiefs an incentive to decide in favor of a structure owner (AB 2007, HA

2007, HB 2007, KV 2007). IN SEARCH OF ORDER

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An alternative outcome is possible if the chief and tenant are of the same ethnic group and the structure owners’ tribe is perceived as adversarial. For example, a Luo chief would generally side with a Luo tenant against a Kikuyu structure owner despite the smaller payment offered by the tenant (LV 2007). However, the overarching perception is that it is useless for a tenant to approach a chief. One tenant summarizes this position: “We have some corrupt chiefs. They definitely do not help the poor tenant. Tenants believe if they

go there, nothing will happen” (KV 2007). Moreover, chiefs depend on the Administration Police force or hired thugs to enforce their decisions, using violence rather than diplomacy to secure their authority (Mwatha 2007).'! In this regard they are again operating outside of their area of legal authority.

ETHNIC GANGS

Ethnic gangs within Kibera offer another means of conflict resolution. The Luo Kamkunji, who also refer to themselves as the “Taliban,” is

the largest and most powerful gang within the settlement. The gang is concentrated in Gatwekera Village and Sarangombe Ward, in the

western area of the settlement, though it has a wide membership base throughout. It convenes weekly meetings on Sundays at 10 a.m. at the Kamkunji grounds in Gatwekera, an open dirt field within Kibera commonly used for political purposes. Members gather to address the local and national concerns of Luo residents, who may attend the meetings and bring personal grievances for members to address. Such cases include eviction, rent increases, reports of theft, and employ-

ment issues (KG 2007). , The Kamkunji began as part of the Liberal Democratic Party’s youth wing, and first began to have influence in 1992 during Kenya’s first multi-party elections.'* Members held meetings without seeking necessary permission from the chief, though government approval was required to hold a meeting of over five people. Kamkunji members [142]

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describe the time before 1992 as “dark days” when the chief could exercise arbitrary authority over the settlement (KV 2007). Ignoring this regulation became the first instance of the Kamkunji’s pattern of challenging governmental authority. In 2001, the chiefs tried to exert authority in Kamkunji territory by deciding rent disputes, resulting in violent clashes and the consolidation of gang power. The gang has since prevented both structure owners and government agents, including chiefs and higher-ranking officials, from entering

Sarangombe Ward. Kamkunji members view the chiefs and Provincial Administration as “dictators” who have overstepped the “boundaries” of their authority within Kibera (AB 2007; KG 2007; KV 2007). On three separate occasions since 2001, efforts of chiefs to reassert control have resulted in the burning of their

offices (KV 2007). The Kamkunji provide “services” staunchly oppose the chiefs and describes its activities as “liberating sion” of the structure owners who

to Kibera’s Luo residents and structure owners. The gang the tenants” from the “opprestry to collect exorbitant rents (KG 2007). The Kamkunji have ensured that the area’s Luo tenants stay in Kibera without paying rent, or paying less than half of the amount agreed to by the structure owners. The gang is well organized in a rigid hierarchy that links them from local councillors up to current prime minister, Raila Odinga (Bodewes 2008). Though the Kamkunji claim to provide a public good within their area of Kibera, non-Luos generally fear the group and its violent tactics.

In opposing the chiefs in Kibera, the Kamkunji conceive of themselves as providing a key service to tenants. One Kamkunji member describes the gang as “a forum for civic education,’ informing residents that they need not pay rent and protecting them from arbitrary rent hikes (AB 2007). Another member recounts learning about the Rent Tribunal’s decision that houses in the settlement area should not rented for over KSH 100 per month. The Kamkunji announced this information at the weekly meeting and they continue to “educate” tenants about their “right” to fair rent levels. In addition, tenants IN SEARCH OF ORDER

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in Kibera may bring personal cases of property disputes to these meetings, at which the Kamkunji will interrogate the petitioner and seek out the structure owner for questioning. Members emphasized that this process required force and that they would not end the interrogation “until the truth had been revealed.” When the Kamkunji reach a decision, they enforce it through violence (KG 2007). For example, a group of members explained their intervention in the case of a single mother who had been widowed and was threatened with eviction for failure to pay rent. When the structure owner tried to evict her, the Kamkunji intervened, threatening the landlord and

ensuring that the tenant would be allowed to stay in her house. Since that time, the structure owner has not returned to collect rent (KG 2007). Though gang members portray their “service” as voluntary and free to community members, describing themselves as “more cosmopolitan” and less tribal than commonly perceived (KG 2007), some community members report paying for gang services.

Despite the fact that Kamkunji members depict themselves as providing a public good, the gang remains overtly ethnically focused and relies on violence to achieve its objectives. Their weekly meetings are “open to the public” (KG 2007), but are held in the Luo language, effectively excluding non-Luos from participating. The crowds of several hundred who attend meetings intimidate both chiefs and non-Luo residents. Additionally, members take pride in burning chief’s offices and having stoned the provincial commissioner, a high-ranking official under the Provincial Administration,

when he came to resolve rent disputes (SA 2007). The Kamkunji perceive violence as necessary to combat the chief’s Administration Police and the “goons” whom structure owners may hire to forcibly collect rent. This arrangement is similar to recorded patterns. of mafia violence in other parts of the world in which gangs step in where the state fails. As far as the overworld is concerned, the mafia banks on the inefficiency of the state in supplying efficient protection to legal transactions: the more

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confused the legal framework of a country, the more incompetent the police, the more inefficient the courts, the more the mafia will thrive. (Varese 2005: 5)

The corruption of the chiefs lends popular legitimacy to the Kamkunji’s use of force in providing an alternative form of governance within the settlement, but access to the gang is dependent on tribal affiliation, and enforcement is carried out through violence or threat

of injury. The Kamkunji is one of several gangs operating in Nairobi. Perhaps the most famous is the Mungiki, which controls the transportation networks in the city, is extremely violent, and has received a lot of press coverage for its role in the post-election violence in 2008.

While the government has on several occasions attempted to crack down on gang activities in the country, the gangs continue to flour-

ish (Baldauf 2008; Nzioka and Njagi 2009).

NONGOVERNMENTAL

ORGANIZATIONS

(NGOs)

Several community based and nongovernmental organizations in

and around Kibera provide alternative dispute resolution (ADR) to assist with rental disputes. Kituo Cha Sheria is a Kenyan legal aid organization that assists with ADR in rental disputes regarding urban land. Hakijamii, a Kenyan community-based organization, facilitates community participation in public policy for the urban poor and occasionally becomes involved in rental issues. However, the most significant provider of ADR in Kibera is the human rights office at Christ the King parish, a sizable Catholic church in the middle of Kibera. The parish human rights office is staffed by lawyers who regularly negotiate rental disputes through ADR. The parish has four outstations in addition to the main compound, and thus reaches a variety of constituencies within the slum. Every ethnic group is represented within Christ the King parish. The human rights office is not limited to rental disputes. It handles family issues IN SEARCH OF ORDER

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such as divorce and child support as well. Christ the King is based in Kibera and because of its proximity, the Human Rights Office is a readily accessible forum for ADR. Moreover, the human rights office will intervene in disputes brought to them where chiefs have taken bribes and will make the chiefs repay the money (Bodewes 2008). They turn to the district officer, the head of the Provincial Administration, when chiefs are found to be operating in an entrepreneurial fashion and taking payments. A survey of case files at the human rights office in November 2007 showed 24 cases of rental disputes over the past three years. Discussions with the staff indicate that there have been more rental disputes that were resolved but have no files. However, even if we assume double or triple the number of cases, it is clearly just a tiny percentage of all the rental disputes from a community of 700,000 people with the degree of informality we see in Kibera.

EVALUATING

ENFORCEMENT

REGIMES

From this discussion it is clear that people in Kibera have choices regarding their contractual enforcement mechanisms. We evaluate these choices according to the criteria set out in chapter 1: predictability, accessibility, equity, effectiveness, and restraint. It is important to note that in this context we are not evaluating the fairness or adequacy of existing property law, but only the enforcement of that law."* The government Rent Tribunal is predictable in its tendency to favor landlords. The Tribunal is somewhat accessible to people from Kibera in terms of proximity as it is only an hour’s walk from.the settlement, but would still require a full day commitment in order to arrive, file paperwork, and wait for a case to be called. A tenant employed as a kibarura, or casual laborer, in Nairobi’s industrial area,

would be taking a risk of being fired for taking a day off to file a case. Additionally, the Rent Tribunal is too expensive for most Kibera [146]

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residents and thus is financially inaccessible. The greatest barrier of all to accessibility is the general lack of awareness of the Tribunal. The strength of the Tribunal is that it represents the most ethnically impartial resolution process available to residents of Kibera. Nonetheless, it is slow, lacks an enforcement arm, and is too physically

distant from the settlement to project authority there. Finally, the Rent Tribunal uses restraint in its resolution of property disputes insofar as it rests on the authority of the state and only indirectly on violence to enforce its decisions. Using the rubric presented in the introduction, we assess the social welfare of the formal institu-

tion of the Rent Tribunal against the nongovernmental alternatives (see Table 6.4). It is not surprising that the government does not perform optimally. Government, as Fred McChesney has noted, may be the cheapest definer and enforcer of property rights, but it is not necessarily the best (2003). In this case, the government dispute resolution mechanism

is slow, inefficient, and relatively difficult for

people to access. When a tenant is threatened with immediate eviction, a rental dispute process that may take years is far too long to wait for assistance. When we assess the functioning of the chiefs, we find similarly ambivalent results. The chiefs are accessible to all as they are located within the slum, and predictable insofar as they will decide in favor

Table 6.4.

ASSESSMENT

Rent Tribunal

OF SOCIAL WELFARE Chiefs

Gangs

NGOs

Predictability

2

2

3

3

Accessibility

2

3

2

2

Equity

3

1

1

k)

Effectiveness

1

2

3

2

Restraint

3

2

1

3

11

10

10

13

Net Benefit

3 = high; 2 = moderate; 1 = low

Higher scores mean greater social welfare,

IN SEARCH OF ORDER

[147]

of the disputant who gives them the largest payment. Yet this violates the principle of equity, as chiefs are less likely to be concerned with the merits of a case or its adherence to the law. Disputants are more likely to take their problems to a chief who is of their ethnic group because of the perception that the chief will be more favorably disposed to settle in their favor. Chiefs also rely on violence to enforce their decisions, using hired thugs or sometimes members of

staff to threaten and coerce people to follow their decisions. Ethnic gangs in Kibera are extremely effective in enforcing their extralegal decisions. The Kamkunji constitute the most predictable avenue for resolving property disputes for Luos, as they habitually side with Luo tenants against Kikuyu structure owners or chiefs. They are accessible insofar as they are available to resolve the conflicts of people in their own ethnic group, but non-Luos are excluded from the Kamkunji’s help. It could be argued that for Luo tenants, the Kamkunji are the most equitable path of dispute resolution available for rental conflicts, though this equity fails outside the Luo tribe. Further, it is necessary to pay the Kamkunji when soliciting them to act on one’s behalf. Once paid, they effectively take care of the problem. However, they show no restraint in their use of force. The NGOs that are involved in resolving property disputes are staffed by qualified legal professionals and effectively resolve conflicts via ADR. Their involvement tends to preclude turning to other forms of conflict resolution as chiefs refuse to get involved in disputes that the Church is handling and the gangs did not have a positive relationship with the multi-ethnic parish (Bodewes 2008). Often people turn to the parish Human Rights Office for the settlement of disputes because it is the cheapest option of all. That said, our survey of cases at the office indicated only a limited number related to property disputes. This low number of cases, given our overall assessment of social welfare, leads us to assume that there is something preventing the use of NGOs in Kibera that we were not able to identify. Perhaps, the use of ADR takes more time than turning to a gang or a chief, or people are more interested in a conflict being resolved in their favor [148]

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than resolved according to the law. We have ranked NGOs as moderately accessible on our scale because they are handling very few rental disputes, when we know these disputes to be pervasive. We also perceive a potential problem in NGOs in that they can be transient and often do not have the resources to address effectively all of the conflicts that exist. They are the most welfare maximizing of all of the institutions that we have assessed, yet they lack capacity to be a true alternative to the state.

LESSONS

FROM

THE SLUMS

This research raises interesting questions about the nature of the contracts that exist in informal settlements and the problem of property rights recognition that occurs. Whose rights should be recognized if formal legalization of property rights were to be attempted: the landlords, the tenants, the original settlers on the land? De Soto

would argue for the formalization and, presumably, the defense of property rights that are already in existence. Ronald Coase posited that it does not matter to whom property rights are assigned as they will be bought and sold until an equilibrium is reached (1960). It is

unclear in the case of Kibera whether formalization would mean the allocation of title to the structure owners, many of whom are Kikuyu government officials who hold their properties informally, or to the tenants themselves who are Luo, Luhya, Kamba, Kikuyu,

and Nubian. The ethnic dimensions of this question have thus far prevented government action, and the post-election violence in 2008 and resulting political uncertainty have worsened the situa-

tion. Granting formal rights to either structure owners or tenants would result in widespread violence within Kibera and would not lead to an increase in economic opportunities (de Soto 2000) or an improvement in the living standards of those dwelling in informal settlements (Field 2005) without the addition of accessible and effective conflict resolution systems. IN SEARCH OF ORDER

[149]

In this chapter we have again demonstrated that in the absence of accessible state enforcement mechanisms for property rights, other mechanisms for enforcement arise. However, contrary to the existing literature, we argue that these institutions may not be welfare maximizing. We identify three mechanisms for conflict resolution that have developed outside of the state in a single context. The first is that of bureaucrats with positions in the Provincial Administration who operate outside their area of legal authority and resolve property disputes for profit. The second is ethnic gangs who use violence to threaten and intimidate or to protect those who purchase their services. The third are community-based organizations that provide ADR to Kibera residents. These mechanisms have developed alongside a formal government process of dispute resolution that is widely viewed as biased and ineffective, yet by our rough measure of social welfare only one of these mechanisms exceeds the government Rent Tribunal. So why do people choose to use these other methods? Clearly accessibility and effectiveness are critical reasons. Why go to the trouble of using the formal process if it is no more expensive and faster to use the ethnic gangs? In Kibera, the informality of tenancy contracts means that eviction can happen in a matter of days after being served notice. Processes of conflict resolution that move quickly are highly valued. Because the government processes of conflict resolution are not as efficient and because the government has not acted to eliminate extralegal methods of enforcement, they both persist and are in some cases preferred.'$ There are several serious and pertinent questions left unanswered here. We do not offer suggestions for improvement in law, although there are certainly changes that need to be made. Additionally, we know from comparative research in Ghana that the migration patterns that have led to more permanent settlement in Kibera are not similar to those in other informal settlements in which residence is viewed as temporary. We believe the issue of the pattern of migration to be extremely important in determining what sorts of institutions develop and their degree of welfare maximization. In-migration [150]

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can bring in new participants who do not have established relationships of trust with others and would take some time to develop those sorts of relationships (Ostrom 2000). Lack of trust increases the likelihood that people will turn to violence for enforcement of contracts. CONCLUSION

Kibera is decidedly unique. Few slums have the settlement pattern and overlapping informal property rights that are evident there. The development of three different property rights enforcement systems outside the state demonstrates a need for the enforcement of tenancy agreements. Acemoglu and Johnson argue that property rights are more important than contract enforcement (2005). While this research does not directly challenge their findings, it raises interesting questions as to how we might understand settings in which property rights exist only through informal contracts.

We agree with Bates (2005) that urban riots present a serious threat to governments. Post-election violence in Kibera in 2008 punctuated the threat of unrest that exists where citizens are poor, without clear property rights, and at risk of political manipulation. Kibera includes exactly the sort of urban dwellers we would expect to see the state try to appease in order to prevent them from rioting.

Yet there is no evident bias toward them in terms of definition of property rights and the enforcement of contracts. Indeed, the government has been content to allow undefined property rights to persist in Kibera for generations. Kibera is a pocket of statelessness located directly in the geographic center of power of the Kenyan state. The lack of definition and enforcement of property rights in Kibera is not a problem of state strength, but rather a lack of political will. Riots in Kibera in 2008 resulted when the electoral institutions, properly used, were then undermined by government officials. In response to this electoral malfeasance, violence broke out in Kibera and around the IN SEARCH OF ORDER,

[151]

country as people sought to have the “correct” results enforced through extralegal means—in this case mob violence. The similarity of response to the failure of enforcement of property law and the failure of the enforcement of electoral law is apparent. The situation in Kibera leads us to conclude that the appropriate enforcement of property rights in informal settlements has an effect not just on growth, poverty alleviation or quality of housing, but also on peace and personal security. What occurs in Kibera is a microcosm of the kinds of enforcement mechanisms we see developing in other areas of common law Africa where the state does not actively defend legal property rights. Three kinds of alternatives arise: bureaucratic entrepreneurs, similar to the chiefs in Kibera, who have no legal purview over property rights, but engage in dispute resolution and the allocation of property rights for payment; specialists in violence who will define and enforce property rights for payment; or nongovernmental organizations that step in and enforce rights where the state is absent. Whether these institutional alternatives maximize social welfare or not depends on the characteristics of each, whether they are predictable, accessible, effective, equitable and demonstrate restraint

in the use or threat of violence.

[152]

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CHAPTER

7

Drawing Conclusions

boaslearly defined and enforced property rights promote economic development and reduce violence. When it comes to the control of land, there is a rare consensus between law makers,

development specialists, and local citizens that clear property rights are desirable. Yet, there are serious challenges to achieving well-

defined and defended property rights. The presence of a state does not mean that it is the most efficient enforcer of property rights, nor does the presence of state institutions mean that non-state alternatives will disappear. The passage of new laws regarding property are, at best, a first step in the long process of land administration, adjudication of disputes, and the implementation of law in communities that are outside the reach of the state either geographically or politically. Law alone will not change the way in which property rights are enforced in communities. Indeed, without enforcement, property rights are only constructed mythologies. In this book I have tried to capture snapshots of what is happening in communities in parts of common law Africa where governments have recognized the need for clear property rights. The examples are limited and do not represent the totality of the complex property rights relationships on the African continent. What they do provide is an idea of the interplay between property and authority in local contexts. The cases addressed in this book

demonstrate the interests and engagement of the state with regard to property rights but also the roles played by traditional authority figures, bureaucrats and other non-state actors who fit no easily defined category.

THE CONTEXT

OF INSTITUTIONAL

INNOVATION

Africa is unique in terms of its difficulties with property rights, not because the continent is poor or less developed (though these things are true), but because of the legal pluralism that exists. Legal pluralism results from colonial practices that were designed to administer large areas of land with few administrative personnel. Colonial strategies of rule coupled with post-colonial political pacts and decisions regarding the role of traditional leaders failed to result in the exclusive sovereignty of the state. Instead, the early recognition of traditional leaders and customary law created legal pluralism and, in some cases, ceded control over the majority of land to non-state sources of authority. Customary law provides a source of authority that is separate from the state, that is at times viewed as more legitimate, and that is

used to administer the property rights of the majority of the continent. While it is occasionally formally integrated into the public sector adjudicatory mechanisms, customary law is always recognized in communities where it is embedded in the social structure. One of the intents of this book is to evaluate various enforcement mechanisms for property rights against a set of criteria in order to assess how well they provide social welfare. Customary mechanisms of dispute resolution, at their best, are accessible and effective in resolving

complaints, although they rely on social norms rather than statute law. Precisely because of this, they are weakest in areas of equity and predictability, relying on compromise and community well-being as opposed to consistent criteria. Indeed, an argument could be made, and has been made in another context, that customary leaders have [154]

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no incentive to be predictable because that might put constraints on their future decision making (Landes and Posner 1979: 238-240). Customary law is not going away, but how states relate to customary authority structures and respond to customary tenure is critical in defining and enforcing property rights in a way that both leads to economic development and prevents violence. Hernando de Soto’s (2000) injunction to “formalize the informal rights” to property that exist in the African context would mean a recognition of customary law. Given the equity issues resulting from customary law and customary dispute resolution, this step would be disastrous for women and migrants, who hold no autonomous right to property under customary law. Access to land is access to a livelihood for women and for their children. Formalizing informal rights is particularly problematic given the vital economic role of women in the rural and urban economies of Africa. Part of the conflict in the relationship between customary and statute law is the issue of identity. Will the potential to own property be allocated on the basis of citizenship in the country, membership in an ethnic group, or some compromise between the two? Parliaments and decision-making bodies in African countries have come to different conclusions on this issue (Boone 2007). We expect that governments will be engaged in defending property rights and enforcing contracts in land transfer and use; indeed,

this is a typical expectation, if not obligation, of the state. In the African context, we can also anticipate some involvement of customary

authorities in land issues. So, for example, the role that elders play in resolving disputes in rural Kenya is not unusual. What is exceptional and evident in these cases is the range of different types of actors and processes involved in the defense of property rights outside both the legal system and customary authority structures. As discussed in both chapters 2 and S, customary leaders can assert more authority in land allocation than they actually have, and land that is recognized as customary may have a variety of traditional authorities seeking to control its allocation or may be subject to state law.’ DRAWING

CONCLUSIONS

[155]

Where the state does not define and enforce property rights, organic institutional development occurs to meet local needs, but

this does not necessarily lead to optimal outcomes in terms of social welfare. Organic institutional development can lead to institutions that are uniquely suited to community needs or to institutions that are predatory, illegal, inequitable, and that bring with them

negative externalities. In addition to customary law, three different types of institutions for enforcing property rights in the absence of the state have been identified: bureaucratic entrepreneurs, nongovernmental organizations (NGOs), and specialists in violence. In all six study sites from this research project, alternatives to state enforcement mechanisms were evident. Each of these three institutional innovations were evident in at least two of the communities studied and in one site,

Kibera, Nairobi, all three enforcement mechanisms were observable

alongside state enforcement processes.” By applying the assessment rubric presented in chapter 1, we can make some generalizations about these institutional innovations and their impact on the communities in which they are employed. Two of the chapters in this book detail the role of government officials operating outside their area of responsibility to resolve property disputes or enforce contracts. While they can derive economic benefit from doing so and are clearly operating outside the law, they also meet a community need. Bureaucratic entrepreneurs can be venal and have a predatory relationship with citizens in their community. In other instances, community members view them as helpful. The ability of government officials to operate beyond their designated areas occurs when the appropriate state institutions are absent, inaccessible, or otherwise inadequate. Bureaucratic entre-

preneurs are less harmful to communities than gangs, but their effectiveness is contextual and they are often not concerned with enforcing law. There are additional concerns with regard to equity, as they have been reported to decide in favor of the person who pays them the most money or in favor of their friends. While [156]

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bureaucratic entrepreneurs meet a need and may maintain order, they can establish a type of personal rule within communities that does not come close to replicating the rule of law. NGOs, though they play an interesting role in enforcing property rights, are innocuous. They are an insufficient substitute for state enforcement, as they are rarely concerned with the enforcement of every citizen’s property rights (they tend to focus on underprivileged groups) and they lack the scope of activity to fill in for an absent state in every community. NGOs can be viewed as a corrective to state institutions rather than as a comprehensive substitute for the state. Communities that have legal NGOs focused on property rights benefit from their presence, as legal NGOs enforce statute law. Because of their concern for legality, the way in which NGOs function is harmless, threatening neither the state nor the community. At the other end of the spectrum are specialists in violence, gangs and armed guards, who protect property from encroachment and enforce informal contracts. Specialists in violence are accessible and effective in their enforcement of property rights and their resolution of contractual disputes. However, they are unencumbered by the need to adhere to law, and are inequitable insofar as they discriminate against those who cannot afford their services. Some of the most significant problems resulting from the use of violence specialists to enforce property rights are the negative externalities that accompany their presence. Crime unrelated to property disputes and an illegal market in small arms have been noted in areas where violence specialists are needed for property rights protection and for contract enforcement.

WHAT CONSTITUTES

THE STATE?

One of the conclusions of this research is that, in terms of both

actors and processes, there is often no clear division between state and non-state actors. Actors we would typically think of as being attached to the state, both civil servants and politicians, operate DRAWING CONCLUSIONS

[157]

outside their normal area of responsibility when it comes to property rights. When civil servants violate law through their involvement in the resolution of land disputes or local politicians facilitate unregulated land transfers, they are not acting on behalf of the state. At the same time, they are able to play a role in property transaction and adjudication because they are recognized representatives of the state. This is a grey area that challenges the fragile dichotomy of state/non-state actors. State actors are empowered by their acknowledged authority to operate in areas well beyond the limits of their responsibility. They substitute for the state because of local demand, personal gain, or both.’ There is confusion between state and non-state processes of property rights adjudication and enforcement in several of the communities we studied. Observations in chapter 4 regarding the role of NGOs in enforcing property rights demonstrated a far more symbiotic relationship between NGOs and the state than that which has been previously articulated. When NGOs train the magistrates and civil servants who will adjudicate property cases and when property disputes brought to the courts are sent out of the formal system and back to legal NGOs, there is no clear distinction between state and

non-state processes of adjudication. In the case of legal NGOs, the intertwining of state processes of dispute resolution with NGOs is not harmful, but challenges typical models of dispute resolution. State and non-state categories are better conceived, not as meta-

phorical buckets into which we can put both actors and processes, but as two parts of a Venn diagram, separate in places and yet intertwined (see Figure 7.1). With regard to property rights, one area of the Venn diagram would be civil servants and politicians, acting within their designated capacities, processing land transactions and adjudicating land disputes according to the law. In the other area are actors without any state authority, using processes that are not legalized. In between are ambiguous processes and actors who may have characteristics of the state or other forms of authority. Land transactions and dispute resolution occur in all three areas of the diagram. [158]

Where There Is No Government

Pe State

Figure 7.1. Relationship Between State and Non-State Actors and Processes.

We anticipate that as the state becomes more organizationally complex and localities receive greater state attention and personnel that these two spheres of interaction will move apart and the overlap between the two will be less pronounced. In less-developed states the overlapping area will be larger than in states where long periods of definition and enforcement of law have created more clearly articulated public and private spheres.

SUBOPTIMAL

INSTITUTIONAL

INNOVATION

Literature regarding the enforcement of law suggests that state enforcement is necessary when social norms are ineffective in constraining behavior. Absent third-party enforcement, people limit their economic interactions to family and community members who will adhere to social norms (Greif 2006; Landa 1994). Social norms can be sufficient for enforcing property rights in isolated communities

when demand

for land is minimal. However,

as

demand for land grows because of market development, population growth or competing, nontraditional uses such as resource extraction, social norms are unlikely to be sufficient for property rights definition and enforcement. People want their property rights defended and will seek the means to have them enforced. The examples presented in this book demonstrate that the demand for clear and enforceable property

rights is met in a variety of unexpected ways. Ronald Coase (1960) and Harold Demsetz (1967) both anticipated that any demand for DRAWING CONCLUSIONS

[159]

property rights would be met with a supply by the state. They were not concerned with the mechanisms via which the new institutions would be supplied—rather they just assumed that those mechanisms are present or would evolve in a straightforward mannex. North and Thomas (1973) and McChesney (2003) argue that once the state is in the game, it becomes the most efficient enforcer of

property rights and the supplier of choice. More recently, scholars engaged in empirical work have argued that Coase and Demsetz are wrong, that the state doesn't always supply necessary institutions (Varese 2005; Onoma 2009) , or that it is less likely to occur in situations, such as those examined here, where there is legal pluralism (Fitzpatrick 2006). In this book I diverge from both of these lines of argument and suggest that Coase and Demsetz are correct that institutions will be supplied, but the state may not be the supplier. Rather, organic institutions develop, but these may be suboptimal or even predatory. Institutional innovation occurs in localities, but in a form that goes unrecognized if one is looking at the level of the state rather than the community. Without a state supply of institutions for property rights enforcement, we should expect to see violence around issues of land.‘ Bates suggests that violence around land issues is the result of state failure, and the protection of land rights provides a justification for ethnic elites to create militias and carve out a political base (Bates 2008).

While this may be true, violence surrounding land conflicts is also more mundane, occurring in states that are relatively strong and in areas within countries where the presence of the state is most evident.

POLITICAL GEOGRAPHY

OF POWER

The current understanding of political geography in Africa, that power radiates outward from the center, with weakening impact the farther from the center a community is located, is challenged by this research. Ifthis paradigm were sufficient, then we would see the legal [160]

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property rights defined and enforced in capital cities. Yet, this is not the case in Accra or in Nairobi. These capital cities have pockets of statelessness—areas within them where property rights are illdefined and state enforcement mechanisms lack the power to resolve disputes and enforce contracts. It may be true that some states are simply not strong enough to exert power even in their capital cities. However, as Ghana and Kenya are hardly failed states, the answer lies elsewhere. In both cases there have been specific decisions made by the governments that have influenced the status quo. In Ghana, the

formal recognition of the power of traditional authorities to allocate land has created confusion in the definition of property rights in the capital city. While customary land in Ghana can be sold, there are conflicting claims between customary leaders as to who has the right to do the selling. Legal conflicts that result from the poor definition of property rights are very costly to resolve, creating a situation in which private means to prevent and resolve conflict are worthy of investment. Kenya has an obvious problem in policing the capital city, and we can expect the lack of state concern for the provision of personal and property security in the capital city to be replicated in communities farther away from the geographic center of power in Nairobi. The Kenyan government has an unusual array of property issues to consider in the informal settlement of Kibera, considered in

chapter 6. Property rights there could be recognized, but the consequences of doing so without an extremely effective compensation program would likely be violent. The problem is not that these states are so weak that they cannot control their capital cities; it is that the definition and enforcement of property rights is a particularly intractable political issue, with clear winners and losers who exert their influence in whatever manner they are able to do so. If we want to know whether a community is likely to have defined and enforced property rights, we have to look not just at the geographic proximity of the community to the center of power, but also to the previous decisions of the state regarding both property and

authority, the political commitment of the state to property rights DRAWING CONCLUSIONS

[161]

enforcement, and the socioeconomic status of the actors. Mbembe

has argued that the African state has no natural core, it is fragmented in “an increasingly polymorphic economic geography in which territoriality is differentiated and parcelized among multiple institutional and regulatory forms that are not clustered around a single predominant center of gravity” (2001: 5). State strength is multidimensional; it is inconsistent across both geography and policy arenas.

REVISITING

MOTIVATING

QUESTIONS

In the introductory chapter, I posed a set of questions regarding property rights and their enforcement. Why have countries been slow to define and enforce property rights? Whose property rights are being enforced? How is enforcement occurring? While the answer to the first question has been less obvious than the answers to those that follow, the context in which the definition and enforce-

ment of property rights occurs has been detailed, and numerous difficulties have come to the fore. In all three countries, Ghana, Kenya,

and Uganda, governments have been willing to devote lawmaking effort and scarce resources to the clear definition and adjudication of land rights. However, making institutions function on limited budgets and in all areas of the country is challenging. It requires political will that extends beyond lawmaking and into areas of both enforcement and public awareness. Whose property rights are being enforced? How they are enforced? The answers to these questions are intertwined. Where the absence of the state is most conspicuous, property rights are enforced by an array of actors. When specialists in violence are involved, people who get their property rights defended are those who can afford to pay private actors. In this situation, might makes “rights,” as those having their property “rights” defended may not be legally entitled to their land or house. Bureaucratic entrepreneurs play a more ambiguous role, They can adjudicate disputes in favor of those who pay them [162]

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the most money and/or resolve property cases in favor of their friends. At times they also facilitate market transactions in a benign way. NGOs working on property rights issues tend to focus on the rights of women, thereby giving them a preferential access to legal advice and services where the NGOs are located. In communities where these NGOs are at work, the legal rights of women, children,

migrants, and other socially less prestigious groups are likely to be defended.

MOVING

FORWARD

Law matters and states should devote serious attention and resources to the enforcement of their property laws. Other, less expensive solutions for resolving communal problems may exist from organically developed institutions that maximize social welfare to alternative dispute resolution processes (McAuslan 2004; Ellickson 1991). Yet, law is necessary to rectify historic injustices, prevent violence, pro-

tect contracts, and provide a social environment conducive to economic growth. North and Thomas have argued that state provision of property rights is a pivotal moment in economic growth because people no longer have to look to others for protection. When the state efficiently protects property rights, it allows people to turn their attention to economic entrepreneurship (North and Thomas 1970). A large gap exists between the making of property law and the efficient enforcement of property law by the state. The fallacy of legalism occurs when we think that just because a state has made a law, that law is enforced. In the strongest states, the enforcement of law follows the making of law with great predictability. In those communities examined here, both capital cities and rural areas, there was

considerable difference between extant law and what was happening regarding the definition and enforcement of property rights. What is particularly notable is that the three countries in which these case studies occurred have all recognized the importance of property DRAWING CONCLUSIONS

[163]

rights and are making efforts via law to improve the property rights of their populations. Understanding what is happening at the level of the state does not tell us what is happening in local communities, even those within the capital city. Although we know quite a bit regarding issues of property rights in rural areas of Africa, research on urban communities in develop-

ing countries and patterns of law enforcement and state power within them is both scarce and necessary. Not all urban settlements are the same; the land seizures that created informal settlements in

Latin America are different from the mechanisms behind the location and growth of slums in urban Africa and India. Moreover, infor-

mal settlements where people have lived for generations differ from those in which residence is new or short-term. Trust that develops from repeated interactions with the same set of individuals has the potential to develop welfare-maximizing social institutions to substitute for the state (Ostrom 2000). Transient or newly settled urban communities are unlikely to develop the same set of institutions as those that are older or planned through land invasions. In very large slum communities, it is possible that some areas may have more permanent populations and other areas of the same slum, more transient populations. Also, as noted in chapter 1, this research focused on common law African countries because of a desire to compare

similar institutional contexts. It would be fascinating to replicate the study in a civil law context in Africa, either French or Portuguese, to see if a similar set of actors and processes emerge from the analysis. I leave that particular task to others. Well-defined property rights are extremely important for both economic growth and peaceful societies; on this there is consensus from the streets and farms in Africa to the hallways of the World Bank in Washington. However, moving from the definition of property rights in law to their enforcement on the ground is no easy step. It is a complex process which, if abandoned by the state, will result in the formation of non-state processes and institutions that may not promote social welfare. [164]

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APPENDIX Surveys and Interviews

2005

Patrick McAuslan, personal communication, London, UK, July 2005 Sarah Chemonges Taboswa, Mukono, Uganda, September 9, 2005

Stephen Noll, Mukono, Uganda, September 9, 2005 Carol Bunga Idembe, Kampala, Uganda, September 12, 2005 Oscar Okech, Kampala, Uganda, September 12, 2005

Benjamin Phillips, Kampala Uganda, September 12, 2005 Peter Nyombi, Kampala, Uganda, September 12, 2005 Glyn Turner, Tororo Uganda, September 13, 2005 Victoria Bwenene, Tororo, Uganda, September 13, 2005

B. Tororo, Uganda, September 14, 2005 Women’s Guild of Tororo, Focus Group, Tororo, Uganda,

September 14, 2005 Joshua Mbiye, Tororo, Uganda, September 14, 2005 Harriet Among, Tororo, Uganda, September 14, 2005 Fuorr Euphrasius, Tororo, Uganda, September 14, 2005 Women’s Guild of Tororo, Focus Group Interview, Tororo, Uganda,

September 14, 2005 Atuki Turner, Kampala, Uganda, September 16, 2005 Richard Robert Haavisto, Kampala, Uganda, September 16, 2005

David Zac Niringiye, Kampala, Uganda, September 16, 2005S Eunice Abogunrin, Wheaton, IL, U.S., November 22, 2005S Kerubo Okioga, Wheaton, IL, U.S., December 30, 2005

2006

Dr. Christine Dranzoa, Kampala, January 28, 2006 Dr. Joseph Bahati, Kampala, January 31, 2006 WidowJ,Mbarara, February 1, 2006 B2, Mbarara, February 2, 2006

John Karuhanga, Mbarara, February 2, 2006

Inspector Nydanabangi, Mbarara, February 3, 2006 Atuki Turner, Kampala, February 7, 2006

Peter Giampoli, Kampala, February 7, 2006 Annonciata Kampire, Kampala, February 8, 2006 Esther Obaikol, Kampala, May 11, 2006

Naomi Kabanda, Ministry of Water, Lands, and Environment,

Kampala, May 15, 2006 Sarah Kulata Basanswa, Ministry of Water, Lands, and Environment,

Kampala, May 15, 2006 Hilda Akabwai, Kampala, May 16, 2006 Didas Muhumuza, Kampala, May 16, 2006

Raphael Bokumah, Accra, July 12, 2006 Emmanuel Kwaa, Executive Director, Habitat for Humanity, Accra,

July 12, 2006 Solomon Safu, Regional Officer Habitat for Humanity, Kumasi, July 13, 2006 Ahmed Kojo, FIDA, Kumasi, July 13, 2006

Eric Tudzi, Department of Land Economy, Kwame Nkrumah University of Science and Technology (KNUST), Kumasi, July 14, 2006 Victoria Bwenene, Tororo, July 15, 2006

Prof. S. O. Asiama, College of Architecture and Planning, KNUST, Steering Committee Land Administration Project, Kumasi, July 17, 2006 J Prof. D. N. A.Hammond, Department of Land Economy, KNUST, Kumasi, July 17, 2006 Prof. K. Mohammed, Department of Land Economy, KNUST, Kumasi, July 17, 2006 [166]

Appendix

Mr. Kwaku Frimpong, Ashanti Regional Director of Legal Aid, Kumasi, July 17, 2006 Asare Bediako, Development Control Officer, Physical Development and Land Use, Kumasi, July 18, 2006 Edna Leslie Kuma, Executive Director, African Women Lawyers Association, Accra, July 20, 2006

Chanuka HIV Post-Test Group, Kisii Central, 2006 (Henrysson) Catholic Church Women’s Group, Kegati, Kisii Central, August 6,

2006 (Henrysson) John Okitwi, Tororo, August 9, 2006 Thomas Misianikima, Nyamemiso, August 9, 2006

Gideon Oyugi, Nyamemiso, August 9, 2006 (Henrysson) Post-HIV-Test Chanuka Self-Help Group (only women members), Kisii, August 9, 2006 (Henrysson) F, Personal Dispute, Ikoba, August 11, 2006 (Henrysson) Township Women’s Group, Ikoba, August 11, 2006 (Henrysson)

Agnes Obarie, Peace and Justice Commission, Kisii August 15, 2006 (Henrysson)

Itogio Women’s Group, Kisii August 15, 2006 (Henrysson) MHY, Kisii District Hospital VCT Center, Kisii Central, August 16,

2006 (Henrysson) M, Kisii, August 16, 2006 (Henrysson) Ouma Otieno, Advocate, Kisii, August 21, 2006 (Henrysson) Enyoni Women’s

Group,

Enyoni,

Nyamira,

August

22, 2006

(Henrysson) Scholastica J Kosgei, Suneka Division District Officer, Suneka,

August 25, 2006 (Henrysson) Tombe Elders, SDA Church, Tombe, Nyamira, August 27, 2006

(Henrysson) Tombe

SDA Widow’s

Group, SDA

Church, Tombe, Nyamira,

August 27, 2006 (Henrysson) MB, Personal Dispute, Tombe, Nyamira, August 27, 2006 (Henrysson)

TK, Tombe, Nyamira, August 27, 2006 (Henrysson) EK, Tombe, Nyamira, August 27, 2006a (Henrysson) Appendix

[167]

JK, Tombe, Nyamira, August 27, 2006b (Henrysson) PM, Tombe, Nyamira, August 27, 2006 (Henrysson) E, Tombe, Nyamira, August 27, 2006 (Henrysson) BN, Tombe, Nyamira, August 27, 2006 (Henrysson)

Nyamira Widows (Henrysson)

Group, Tombe, Nyamira, August 27, 2006

Elders, Tombe, Nyamira, August 28, 2006 (Henrysson)

Manhiya, Palace Lands Secretariat Assistant, Asantehene’s Secretariat, Kumasi, September 2006 (Amoakohene) Tabaka Single Mothers Group, Tabaka, Gucha, September 19, 2006

(Henrysson) SS, Chief, South Mogerambo Church, Gucha, September 19, 2006

(Henrysson) Mawera Monganya, District Officer, Kisii, September 19, 2006 (Henrysson) Trinity Self-Help Group, Tabaka, Gucha, September 20, 2006

(Henrysson) Miriri Widows

Group, Miriri, Nyamira,

September 20, 2006

(Henrysson) JM, Elders, Nyabigege, Nyamira, September 20, 2006 (Henrysson) TN, Assistant Chief, Enyoni, Nyamira, September 20, 2006 (Henrysson) Geonseri Widow’s Group, Geonseri, September 28, 2006 (Henrysson) SO, Elder, Geonseri, Gucha, September 28, 2006 (Henrysson)

Obotaka Self-Help, Bonyagatanyi, September 29, 2006 (Henrysson) MO, Elder, Bogyekomo, October 1, 2006 (Henrysson) EN, Elder. Bomorenda, October 1, 2006 (Henrysson) SM, Personal Dispute, Kisii, October 3, 2006 (Henrysson)

MO, Personal Dispute, Kisii, October 3, 2006 (Henrysson) Joseph Gisangau, Kisii District Headquarters, District Officer, Kisii, October 12, 2006 (Henrysson) Nyosia Single Mother’s Group, Nyosia, October 19,2006 (Henrysson) Patricia Nyaundi, FIDA Advocate. Kisumu, October 23, 2006

(Henrysson) [168]

Appendix

KN, Personal Dispute, Keumbu, October 24, 2006 (Henrysson) Keumbu HIV Post-Test Group, Keumbu, October 24, 2006 (Henrysson) Women's Group, Seventh Day Adventist, Riama Oncha, October

28, 2006 (Henrysson) Lutheran Women, Suneka, October 29, 2006 (Henrysson) N, Bomorenda, November 2, 2006 (Henrysson)

Elders group, Nyanchwa, November 3, 2006 (Henrysson) Miriri Women, Nyamira, November 3, 2006 (Henrysson) Women, Tombe, Nyamira, November 3, 2006 (Henrysson)

PO, Elder, Nyamira, November 5, 2006 (Henrysson) Nyango Oadi, Tororo, November 6, 2006

Jane Mora Botara, Chief, Nyamira, November 6, 2006 (Henrysson) Felix Bosire Onyego, Assistant Chief, Nyabuko, Nyamira, November 6, 2006 (Henrysson) Elders, Boronyi, November 9, 2006 (Henrysson) AO, Elder, Bosinange, Gucha, November 15, 2006 (Henrysson)

Attanas Ombongi Nyawanga, Assistant Chief, Bosinange, Gucha,

November 22, 2006 (Henrysson) ZN, Elder, Bonyanchaire, November 23, 2006 (Henrysson) Margret Kajuju, Nyamira Land Registrars, Nyamira, November 25,

2006 (Henrysson) Masege Women, Gucha, December 7, 2006 (Henrysson)

2007

Winston Masulu, Kampala, August 2007

Dr. Christine Duwuona-Hammond, Department of Law University of Ghana, Legon, July 5, 2007 Jenny Orgle, Civil Society Facilitator for Land Administration Project, Accra, July 6, 2007

Dr. Dzodzi Tsikata, ISSR, Legon, Accra, July 6, 2007 Kwame Gyan, Legal Advisor, Land Administration Project, Legon,

July 6, 2007 Appendix

[169]

Dominic M. Aynie, Director, CEPIL, Accra, July 10, 2007 Sheila Minkah-Primo, Advocate, Accra, July 11, 2007

Sylvia Noagbesenu, Center on Housing Rights and Evictions, Accra,

July 11, 2007 Raymond Atgouba, Advocate, Accra, July 13, 2007 Georgette Francois, Advocate, Accra, July 2007

CS, Interview, Nairobi, 2007 (Vanderpoel)

DO, Interview, Kibera, Nairobi, July 24, 2007 (Vanderpoel) SA, Interivew, Kibera, Nairobi, 2007 (Vanderpoel) GC, Interview, Gatwekera Village, Kibera, Nairobi, 2007 (Vanderpoel) HA, Focus Group Discussion, Laini Saba Village, Kibera, Nairobi,

2007 (Vanderpoel) KG, Focus Group Discussion, Kamkunji Grounds, Gatwekera

Village, Kibera, Nairobi, (Vanderpoel) SO, Focus Group Discussion, Samuel Mwaniki. Soweto East Village,

Kibera, Nairobi, 2007 (Vanderpoel) HIV positive female tenants focus group discussion, Kibera, Nairobi, 2007 (Vanderpoel) CJ, Interview A, Nairobi, August 17, 2007 (Vanderpoel) CJ, Interview B, Nairobi, October 31, 2007 HIV positive female tenants, Focus Group, Kibera, Nairobi, Octo-

ber 31, 2007 (Vanderpoel) HA, Focus Group, Kibera, Nairobi, October 31, 2007 (Vanderpoel)

Kibera Women’s Handicraft Group, Focus Group, Kibera, Nairobi,

November 6, 2007 (Vanderpoel) HIV positive female tenants, Focus Group, Kibera, Nairobi, Novem-

ber 7, 2007 (Vanderpoel) Village Elders, Landlords, Soweto East residents, Focus Group,

Kibera, Nairobi, November 14, 2007 (Vanderpoel) SO, Focus Group, Soweto East Village, Kibera, Nairobi, November

14, 2007 (Vanderpoel) JG, Interview, Kibera, Nairobi, November 20, 2007 (Vanderpoel) AB, Focus Group, Makina Village, Kibera, Nairobi, November 22,

2007 (Vanderpoel) [170]

Appendix

Makina Village landlords, Youth Kamkunji, Focus Group, Nubian, Kibera, Nairobi, November 22, 2007 (Vanderpoel) GD, Interview, Gatwekera Village, Kibera, Nairobi, November 23,

2007 (Vanderpoel) Focus Group, Gatwekera Village, Kibera, Nairobi, November 23,

2007 (Vanderpoel) KG, Focus Group, Kamkunji Grounds, Gatwekera Village, Kibera,

Nairobi, November 25, 2007 (Vanderpoel) KV, Focus Group, Kianda Village, Kibera, Nairobi, November 25,

2007 (Vanderpoel) LV, Focus Group, Lindi Village, Kibera, Nairobi, November 27,

2007 (Vanderpoel)

2008

Christine Bodewes, Maryland, March 28, 2008

Simon Ndira, Tororo, August 18, 2008

2009

Steven Burgess, Personal Communication, New York, 2009

Appendix

[171]

NOTES

CHAPTER 1

1. From the earliest days of their development, there have been fundamental differences between the English common law system and the continental European systems of justice. The continental systems of law evolved out of the codes of the Roman Empire and developed into a system of statutes that we now know ofas civil law. Civil law is articulated in terms of the rights and duties of the citizen (David and Brierley 1978). Civil systems, such as that of the French, emphasize the role of the individual within the state and apply the rights and duties of the citizen to a particular case. Alternatively, common law systems have developed with the idea of the protection of individual rights from the state as a primary goal. This goal is achieved through a particular process of investigation and decision making. In common law systems, the process, rather than the application of a code, leads to justice. Perhaps due to the emphasis on process, the English legal system gives us the idea of legal precedent and the reliance on the body of cases decided in the past to guide the present decision of a judge. This allows for the development and flexibility of a legal system over time.

2. This type of thinking about power and land in agricultural communities reflects the questions asked by Victor Magagna in Communities of Grain

(1991) and the ideas regarding local level rule making and resolution that pervade the work of Elinor Ostrom (2000, 2009). 3. See for example the work of La Porta et al. (2004, 1998, 1997) and in

contrast my own comparison of Kenyan and Indian legal development (Joireman 2006) for a description of the tremendous differences we see in common law legal institutions. 4. Well-defined property rights and titled property do not necessarily mean individualized, private property. Groups can have titled property and

common property regimes exist all over the world in legally protected

forms (Ostrom 2000), S. This same idea is echoed in Demsetz (2002). Although Grief (2006) gives evidence of privately ordered institutions, guilds, which arose during the medieval period to expand potential networks of exchange. 6. North, Wallis, and Weingast also note that some institutions can have a

negative effect on well-being (North et al. 2009). 7. One should not assume that soliciting the input of traditional or customary authorities in resolving disputes is without monetary costs (Henrysson and

Joireman 2009).

CHAPTER

2

1. An earlier version of this chapter was published as “Entrapment or Freedom: Enforcing Customary Property Rights Regimes in Common Law Africa,” in Jeanmarie Fenrich, Paolo Galizzi and Tracy Higgins, eds., The Future of

African Customary Law (New York: Cambridge University Press, 2011). 2. The British were by no means the only colonizers in Africa. At various times Spain, Germany, Italy, Portugal, and France also had colonies. The French and the British had the largest colonial possessions in terms of area and population. Yet they followed very different strategies of administration, as the French chose to rule directly through colonial officials. 3. In India customary law was applied to personal matters, and property rights were subject to British common law and protected even for Indians, though with less vigor and consistency. 4. Evidence of the rapid evolution of land markets is documented in Ghana (Hill 1963) and Zimbabwe (Cheater 1990). In Ethiopia, in traditional tenure systems, there was evidence of land sales in communal tenure areas

with the monetization of the economy (Joireman 1996). 5. Cited in Bates (1984), p. 31. 6. In the case of the African colonies, this was sometimes British case law

as further developed in India during the Indian colonial period. One could argue whether or not this body of law is correctly called British or Indian. 7. Administration of Justice Proclamation 1/1 1942. Found in The Consolidated Laws ofEthiopia, Vol. 1, Addis Ababa: Artistic Printers, 1972. 8. Rene David, “Expose des motifs et commentaire des documents Code Civil 59 et Code Civil 51 relatifs au domaine public, a l'expropriation et a ’exploitation collective des biens.” Document Code Civil 63 (1957

Notes to Pages 10-39

[173]

unpublished) in Bililign Mandefro, “Agricultural Communities and the Civil Code: A Commentary,” Bachelor of Law thesis, 1965. 9. When the revolution occurred in 1974, the multiple land tenure systems that existed in Ethiopia were abolished and replaced with a single tenure system, based on the diessa tenure system of northern Ethiopia and Eritrea (Joireman 2000: 83). Under this tenure system, land was allocated based on residency in a community and redistributed every five to seven years. 10. Gauri has noted three characteristics of customary law in the Indonesian context that are helpful in conceptualizing customary law in Africa as well. He notes that customary law is: (1) fluid and varied, (2) embedded in cosmic and social significations, and (3) less autonomous from other forms of social power than state institutions (Gauri 2009).

11. See also Gauri (2009) for a similar problem in Indonesia. 12. In Ghana the courts have taken a hard line in interpreting the constitutional demand for “equal access to property jointly acquired during marriage.” Courts have required women to prove that they have contributed substantially to a business or to the purchase of a property in order to receive any compensation or maintenance in the case of divorce,

or to retain the property after the death of their spouse. Abebresaeh v. Kaah (1976, 2 Ghana Law Record 46) illustrates the court’s approach.

In this case, the parties were married under customary law and both contributed to the purchase of the matrimonial home, the wife through proceeds from her trading business and the husband through his job as a bookkeeper. When the husband died, the woman went to court to es-

tablish her right to the property. The court determined that she was joint owner of the property by virtue of her contribution to its purchase, but this did not give her the right to the whole property. Neither customary nor statutory law in Ghana recognizes joint ownership of spouses or the right of survivorship. In this particular case, the woman was able to claim the property in spite of this by providing evidence that her deceased husband wanted to give his portion to her as a gift (Dowuona-Hammond 2003: 146).

13. In Uganda, while women are responsible for growing food crops, many ethnic groups view it as the job of their husband to sell the agricultural produce at the market. Following custom, the women lose control over the fruits of their labor. 14. Progress has been made in Rwanda; in March of 2000 the National Assembly adopted the Matrimonial Regimes, Liberties, and Succession Law, which allowed women to inherit land.

[174]

Notes to Pages 39-45

1S: Yngstrom argues that in Tanzania this was not always the case, that women used to be able to claim land from their families, but secondary

rights became standard practice by the late 1950s when men began to “assert greater control over land, by limiting land transfers made by line-

age members to female family members” (Yngstrom 2002: 30). 16. This is true even in matrilineal societies, where descent is traced

through the female line. In matrilineal systems, children inherit, not from their father, but from their maternal uncles. In the case of divorce

in patrilineal systems, the children go with the father; in matrilineal systems, the children remain with the mother. In terms of property rights, there is not much difference between the customary patterns of landholding and property rights. Women have only access to land, rather than control over land, under both systems. In the matrilineal systems, although descent is traced through the maternal line, the maternal uncles are the ones who make decisions for the lineage. Decisions concerning the lineage group are usually made at lineage meetings attended only by men. In neither the matrilineal nor the patrilineal system do wives have property rights to customary land or daughters rights of inheritance from the lineage. That said, in some parts of West Africa, women

will have some residual claim to land in their natal kinship group or through wider social ties. However, this is more the exception than the rule. Hakaanson gives an anthropological framework for understanding the differences in lineage attachment for women in Africa. There is a bifurcation between lineage systems in which women maintain an identity in their natal lineage after marriage and those lineage systems in which

they do not (Hakansson 1994), If awoman maintains a social identity formed by her natal lineage after marriage, then she is likely to have property rights associated with that lineage. However, if she is “detachable” and is identified with her husband’s clan or lineage after marriage, then she is likely to have few, if any, socially recognized property claims in her natal lineage. Lie This is a sentiment that was repeated, albeit less vividly, in other interviews and contexts. See Human Rights Watch (2003). 18. For examples see Onoma (2010). 1g, In South Africa women are guaranteed equal rights under the law by

a constitution that also recognizes the rights of traditional leaders to allocate land. Given that in customary tenure systems women do not have access to land in their own right, it was inevitable that a case would

be brought on behalf of awoman denied access to land. In South Africa the decision of the constitutional court in the Bhe case (Bhe v. The

Magistrate, Khayelitsha 2004 (2) SA $44 [C]) famously argued that Notes to Pages 4S-S2

[175]

a woman must be allocated land by a traditional leader. However, the reason given in the ruling was not that she had equal standing as a citizen of South Africa and a member of that kin group, but rather that she had children who were members of that kin group and their rights could not be denied. What was important in the Bhe case was that the children were girls. A decision that these girls deserve access to land because they are members of the kin group was an affirmation of their membership in the lineage—a membership that was not previously explicit in the case of girls or women, CHAPTER

3

1. Chiefs and elders in Kenya are government officials, not customary leaders. They are members of the Kenyan Provincial Administration. ; 2. Bureaucratic entrepreneurs should not be confused with political entrepreneurs, a term used for people seeking to achieve greater political

power. 3. Trust built among communities from repeated interactions with one another over years is one of the characteristics that Elinor Ostrom has noted as assisting communities in overcoming a tragedy of the commons in the

use of resources (2000). 4. Hart argues that a legal system combines norms of conduct with rules of change and adjudication. The two are complementary, rather than exclusive. In making this point, Hart is keen to undermine the idea that all law is based on the coercive power of the state. Ellickson (1991) follows Weber, not Hart, in making a sharp distinction between social norms, which he

refers to as second party enforcement, and the role of the state as third party enforcement. S. As noted in the previous chapter, the tension between social norms as evidenced in customary law and statute law is particularly serious and requires state intervention in two areas: land transactions and women’s property rights. Land sales necessitate third party enforcement because customary law dictates both whether customary land can be sold and who has the right to sell it. Ubink notes that in Ghana, while it is accepted that chiefs have the right to sell land, what is unclear is which chief may do so. The lack of clarity has been the source of many legal disputes (2008). In, these cases, third party enforcement is necessary to both verify “ownership” and adjudicate contracts. Additionally, women’s property rights under customary law are weak. Women wishing to acquire autonomous rights to land or defend those that they have established require third party enforcement. However, the need for third party enforcement does not necessarily mean that it is provided. Fitzpatrick notes the lack of [176]

Notes to Pages $2-59

third party enforcement as a problem for areas with legal pluralism, and critiques both Demsetz (1967) and Coase (1960) for naiveté in assuming that the demand for institutional change automatically leads to its supply (Fitzpatrick 2006). 6. Suboptimality as used here is a theoretical construct because the state institutions are not present or not accessible.

7. Again, I thank the students who worked with me in the field, living in these

areas for extended periods of time, conducting interviews both with me and on their own, and providing valuable insights. Abbi Martin, Dustin Choate,

and Rachael Burke worked with me in Uganda and Elin Henrysson in Kisii, Kenya.

8. There were other organized kingdoms in what is now Uganda, but the Baganda was the strongest. 9. After independence, the issue of the status of tenants on mailo land was raised again. There was an additional conflict over 9,000 square miles of land that had been appropriated by the colonial government as Crown Land with the intent of providing some land that could be allocated as freehold to settlers. This land was controlled by the colonial government on behalf of its occupants. 10. See (Joireman 2007) for a detailed discussion of the content and implementation of the Ugandan Land Act. 11. I was told that they are able to get around this by appointing their relatives to the Land Committees (Karuhanga 2006). 12. The Magistrate’s courts are now the courts of first instance. When the Land Tribunals were functioning, they were the courts of first instance for land disputes, but since they were suspended in 2007 asa result of a conflict between the Ministry of Lands and the Ministry ofJustice, the Magistrate's courts have had to take the land cases. 13. Per capita income was calculated based on information from three relevant districts (Kisii Central, Gucha, and Nyamira) published in the Kenya

National Human Development Report (NHDR). Annual per capita income is KSHs 22,740 for Kisii Central; KSHs 16,831 for Gucha; and

KSHs 14,293 for Nyamira. GDP per capita (US$ PPP) is $663, $490, and

$416, respectively (p. 71). In order to arrive at an estimated monthly per capita income for the region, we average the annual per capita income of the three districts and divide by twelve [(22,740 + 16,831 + 14,293)/3] / (12 months) = 1,496. The exchange rate used was 1 US$ to 70 Kenyan shillings, which leads to a per capita monthly income of $21. 14. We used interviews and focus groups to explore property disputes and perceptions of formal and customary systems of dispute resolution. Care was taken to conduct interviews in each of the three districts that comprise Kisii Notes to Pages S9-69

[177]

so as to make them as comprehensive and descriptive of the area as possible. Initial interviews were structured and conducted with various groups and individuals. We interviewed 16 women’s groups, ranging in size from 15 to 20 people. The purpose of these interviews was to determine the kinds of land disputes pursued by women in the Kisii area, the variables that make them vulnerable to disputes, and the path that they would generally follow in seeking resolution. Nine interviews were conducted with chiefs and 10 with elders, to determine their perceived role in handling land disputes. In addition, we interviewed 30 women who had personally sought resolution to a land dispute in order to understand how the general trends discussed in the women’s groups played out in concrete examples. Lastly, we interviewed three district officers, two lawyers, and several NGO employees in order to gain an understanding of both the formal and customary structures that exist for resolving land disputes. 15. Steve Burgess related to mea story from his own field research of an agricultural extension agent resolving a property dispute for a woman in Zimbabwe (2009). 16. Elliot Green argues that decentralization is no longer working as well as first hoped (2008). 17. Judges in Kenya have been resistant to attempts to document their decisions, leading to a situation in which there was no court reporting on civil matters for the years between 1981 and 2002. No judge who is open to bribes will support court reporting, because it will only draw attention to inconsistency in decisions.

18. Chapter 6 discusses evidence of chiefs in Nairobi employing others to threaten physical violence when they feel they need to do so. CHAPTER

4

1. My thanks go to Yvonne Geck for her good example in many ways, and to Sarah Baggé and Anna Westlund for research assistance on this chapter. Iam grateful to Frank Gunter for his comments on an earlier draft of this chapter. 2. The private schools that have started are not all designed to cater to the wealthy. I observed one private school in Ghana that was run from the inside ofa railway container in a slum community in Accra. : 3. One might alternatively argue that it is a rival good. However, since not all property rights actually have to be enforced for people to believe that they will be, I believe enforcement is better conceived as a public good. My point here is to look at what occurs when the enforcement of property rights is insufficiently provided by the state to the extent that no one actually

believes the state has the intent to enforce them. [178]

Notes to Pages 69-85

4. Both FIDA and Mifumi were active in Eastern Uganda where I and my students conducted fieldwork intermittently between 2004-2007. S. Interestingly, in some countries, such as Ghana, FIDA will also provide legal

aid to men who come to them in need of assistance. 6. Some observers of ADR in Africa have noted that when women use ADR,

they are at a disadvantage because they are socially on an unequal playing field (Nader and Grande 2002). Others are slightly more optimistic, while noting the potential for inequalities in the social arena to be replicated

through ADR (Bernard 2007). I would argue that the fact that ADR is happening through legal NGOs focused on protecting women makes it more sensitive to women’s legal rights than ADR in other contexts and certainly more equalizing than customary law. 7. The percentage of respondents who sold land and did not obtain spousal consent was 26 percent in the North, 14 percent in the East, 8 percent in the Central area, and 10 percent in the West. 8. Clearly here we are not referring to large international NGOs, which may very well have budgets that surpass the law enforcement budgets of developing countries.

9. The Local Government Act of 1997 established Local Councils (LCs) within each district. LC responsibilities are divided in a hierarchy from LCI, which has the least authority and responsibility for villages or small areas, to LCV, the district level of representation. 10. De Sousa Santos notes the cross-fertilization of law in Mozambique (de Sousa Santos 2006). I find that the term applies well to the integration of a variety of legal processes as well. CHAPTER

5

1. There are myriad exceptions to this rule that are widely publicized precisely because they are outside of normal expectations, usually because the law is perceived as antiquated or because the lack of enforcement is thought to

be a problem. For example, a lack of enforcement of immigration and drug laws in the United States invokes outrage in some quarters due to expectations that laws will be enforced. 2. These are general overviews; many specialized studies of particular countries and businesses exist, and some of these are noted in the references.

3, The former executive of Sandline International formed another company, Aegis Defense Services, which was awarded a major contract to protect USS. diplomats in Iraq, Similarly, Executive Outcomes closed its doors, and many of its employees continued the same work in the same areas for the

company Lifeguard (Singer 2004: $35).

Notes to Pages 86-106

[179]

4, Ina 2007 lawsuit against Blackwater, the company was alleged, among other things, to be in violation of the Anti-Pinkerton Act (Scahill 2007: 39).

5. The Pinkerton Agency continued until 2003, when it was bought out by Securitas AB. Securitas retained the name as a subsidiary company, Pinkerton Consulting & Investigations Inc. (Securitas 2009). 6. O’Brien notes the same phenomenon in an earlier period in Angola (2000). NI. Perhaps with the exception of South Africa, which has developed a strict code regulating the activities of private military and security companies in an effort to curb mercenary activity. 8. Survey evidence indicate that Kenyans don't trust the police, so to be fair it is unclear whether a police presence would be viewed as desirable (Abrahamsen and Williams 2005; Mkutu and Sabala 2007). 9. Evidence of this is presented in chapter 6 of this book. See also Varese

(2005) on property rights protection in Russia. For a different opinion, see Robert H. Bates (2008), who argues that “When private individuals

provide their own protection, one way they can achieve security is by being poor: They can “deter” attacks by having few possessions worth stealing”

(2008: 138). 10. Land is held customarily by individuals, families, stools or skins (chiefs),

and tendamba (priests). Customary land is called stool land in the south and skin land in the north. However, in some of the large urban areas, such

as Accra and Tema, chiefs do not have the same rights to grant land that they do in the central (Ashanti) regions or in the North. In the Accra and

Tema areas, chiefs may have some leadership responsibilities, but the land is ultimately under the control of the fetish priests. When the chiefs grant land to someone to build on, they may not have the right to do so according to customary law. This is the type of conflict that may end up in court. In the Ashanti region, the king, called Otumfuo or the Asantehene, has called upon the Ashanti to stop taking their land cases to the courts, but to bring them to the chiefs to solve. The Asantehene’s Land Secretariat then works to intervene and solve the dispute. This has not, however, reduced the number of cases heard in the courts in the Central region. There are several reasons that this might be the case. First, it could be that those going to the Asantehene’s Land Secretariat are chiefs and others who might have sought traditional methods of dispute resolution in the first place, and second, because the Asantehene will be more interested in community cooperatién than the national courts, compromise will more likely be sought than a firm decision in favor of one party. 11, Crook also found that, in spite of the delays in the progress of court cases, the majority of people were pleased with their experiences in court.

[180]

Notes to Pages 107-114

12. The LAP is a program designed to improve opportunities for economic

growth by creating an efficient land administration system in order to augment security of tenure. The project has a very thorough website with information about its activities. It can be found at http://www.ghanalap. gov.gh/. eS One particularly infamous land case, Tsitso v. Peki, started in 1957 and has aspects that are still unresolved (Dowuona-Hammond 2003: 79), 14. This is a description of PSCs at their best, and there is ample literature to suggest that this is an optimistic assessment (Abrahamsen and Williams 2005; de Goede 2008; Gumedze 2007; Mkutu and Sabala 2007; Small

2006).

LS. Christian Lund notes that this privileging of the chiefs is increasingly

contested in the northern part of Ghana, where earth priests are claiming to be the authentic, customary authorities in control of the land (2006,

2008). To the extent that the earth priests can win this contestation over the traditional, they may be able to usurp the power of the chiefs by removing its source in the north—control over land. CHAPTER 6

L. Rachel Sweet Vanderpoel is a graduate student at Northwestern University

who conducted fieldwork for this chapter when she was an undergraduate at Wheaton College. . We choose to use the term “informal settlement” rather than “slum” or

“people's settlement,’ both of which are used by some of the residents, because we feel it is a more accurate descriptor of the place with regard to property rights. . “Chief” is a government position, not a traditional title. Chiefs in Kenya are part of the provincial administration and have specific responsibilities

delineated in the Chiefs Act. . Interviews were conducted in eight of the twelve villages of Kibera, including Soweto East, Laini Saba, Mashimoni, Lindi, Makina, Gatwekera,

Kianda, and Raila. Kibera is so large and so diverse that these villages are like distinct cities within the settlement.

. There are two police forces with jurisdiction over Kibera: the Kilimani Police, a division of the Kenya police force, and the Administration Police, which directly enforces chiefs’ orders. . Despite Kibera being Government Land under the central government, the Nairobi City Council remains an important actor within the settlement. The City Council was heavily involved in the 1971 Nyayo High Rise upgrading initiative, an effort to construct high-rise apartments for residents of Kibera in Soweto East Village. The City Council is under the Local Administration; Notes to Pages

115-138

[181]

two councillors function within Kibera, adding another layer of political authority within the settlement.

7. The chiefs do not have responsibility for resolving property or rental disputes; this is legally the responsibility of the courts and the Rent Tribunals. In fact, as noted in chapter 3, chiefs in Kenya are legally prohibited from adjudicating land disputes. 8. Currently the Rent Restriction Act is being reformed to increase the ceiling of its jurisdiction from 2,500 KSHs to 20,000 KSHs. This is likely to further exclude residents of Kibera, as middle-class tenants are more able to pay the court filing fee in addition to potential bribes to Tribunal members. With an increased caseload, the Tribunal is likely to choose to hear these cases over those brought by tenants of informal settlements. The tribunal is already backlogged and prohibitively expensive for residents of Kibera, and thus this reform measure will effectively exclude low-income tenants from any protection under the Rent Restriction Act. A Luhya male tenant voiced his concern regarding this process: “Now they have turned so people from posh areas are heard and the Tribunal will not take cases from a poor person”

(AB 2007). 9, This is another example of the use of traditional titles for official positions within the Provincial Administration. 10, This practice is so common that we report its occurrence not just as the result of information collected in interviews but also from direct observation. 11, The Administration Police are appointed as the enforcement arm of the chief’s office. Offices of the Administration Police are located in the same compounds as chief's offices within the slum. A sergeant in the Administration Police explained that he fills in for the chief when the chief is out of the office and takes over the duties of arbitration and dispute resolution (CS 2007). 12, The Liberal Democratic Party was a splinter of the Kenyan African

National Union (KANU) that joined with the National Alliance Party of Kenya in 2002 to form the NARC coalition, which under Mwai Kibaki won the election and deposed Daniel arap Moi. However, the LDP left NARC in 2005, following the failed constitutional referendum, and

established the Orange Democratic Movement with Raila Odinga at its helm. Raila Odinga, the current prime minister, is the common thread

through all of these name changes, Kibera is in his constituency, and he ” wields a tremendous amount of power there, both politically and through the Kamkuniji. 13. “Civic education” is a popular metaphor for informal education. 14. This is particularly important to note in the Kenyan context, as several attempts have been made recently to change property law in a new [182]

Notes to Pages 138-146

constitution and also in a new national land policy. See Joireman (2006) for a discussion of Kenyan property law. iS. Some citizens will choose not to use gangs or bribe officials even if these are more efficient because of the negative externalities these processes create in the community in terms of overall security and governance. CHAPTER 7 I This is particularly evident in the Ghanaian case, as articulated here and

elsewhere. See Firmin-Sellers (1996); Lund (2006b, 2008); Ubink (2008). 2. There was additional evidence of customary enforcement mechanisms functioning in Kumasi, Ghana, and Kisii, Kenya. These cases were alluded

to in the text, but as the presence of customary enforcement processes has been addressed extensively elsewhere, it was not a point of focus in this book.

. Lund, following a similar methodology of examining the exercise of authority within communities, suggests the term “twilight institutions” for those entities that operate between the public and private spheres. They are not the state but do exercise public authority (2006a). . Which is not to say that all violence over land is a result of a lack of enforcement mechanisms.

Notes to Pages 146-160

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[200]

References

INDEX

Abebresaeh v. Kaah, 174n12 Abrahamsen, Rita, 111

accessibility, 147t

British

Africans’ landholding compared to, 32 case law for, 31, 173n6

of chiefs, 71

chiefs for, 35-36

in Kenya, 76-77

Ghana land appropriation by, 35 India’s enclosure movement by, 28-29

in NGO property rights enforcement, 96 of social institutions, 16, 17, 19t

of specialists in violence, 120-21 of traditional institutions, 50

indirect rule of, 28-36, 173n2 traditional leaders under, 28 British West Africa, 29

in Uganda, 76-77

bureaucratic entrepreneurs, 21, 71-73, 162-63

accountability

for developed country laws, 4-5 FIDA for, 88 Accra, Ghana Land Guards in, 22, 115-25 LAP and, 114-15, 181n12

property rights enforcement lack in, 13, 114-15 Acemoglu, Daron, 151

ADR. See Alternative Dispute Resolution

Africa, 57. See also specific countries agriculture, workforce in, 59, 60t

alternative dispute resolution (ADR), 87-88, 145-46, 151-52, 179n6. See also bureau-

chiefs as, 140

description of, 56 effectiveness of, 78 equity of, 77, 156-57 motivation of, 56, 80 political context and, 74-75

political entrepreneurs compared to, 56,

57, 176n2 predictability of, 76 restraint and, 78 role of, 5S—5S7, 60 state related to, 56-57 in Tororo, Uganda, 64 violence and, 78

cratic entrepreneurs; nongovernmental organizations; specialists in violence Amin, Idi, 61 Anderson, Terry, 9

Burgess, Steve, 178n15

Angola, 105-6, 180n6 Ashanti, 27, 34, 180n10

capital cities, 12, 23, 93, 105. See also specific capital cities

authority. See also traditional leaders customary law for, 41-42

power and, 5, 13, 57, 123, 129, 160-61 capital formation, 9-10, 47-48, 79 Chanock, Martin, 31 chiefs, 21. See also elders and chiefs

Baganda, 61, 177n8 Bates, Robert, 13, 151, 180n9

Berman, Sheri, 85

Bhe case (South Africa), 52, 175n19 Boone, Catherine, 13, 155 Bratton, Michael, 84

Burke, Rachael, 177n7 Burkina Faso, 11, 79

accessibility of, 71 assistant chiefs and, 133, 136, 140-43, 147t, 181n3, 182nn9-10

for British, 35-36 as bureaucratic entrepreneurs, 140

chiefs (continued)

migrants and, 43-44

ethnicities of, 142

in pre-colonial era, 27

in Ghana, 34, 113-14, 124, 176nS,

sharia law compared to, 27, 46 in South Africa, 40-41 statute law compared to, 20-21, 25, 40-47,

180n10, 183n1

for identity, 42 power of, 30, 35-37, 41-42, 113-14, 124, 140-43, 155, 176nS, 180n10, 183n1

59, 154-55, 176nS women and, 21, 44-47

in South Africa, 50 violence and, 42, 142, 178n18, 182n11 children, 46, 52, 175n16, 175n19 Choate, Dustin, 177n7

women’s property rights and, 176nS customary rights, property rights compared to, 29-30

city-states, 26-27

Democratic Republic of Congo, 108, 126 Demsetz, Harold, 159-60, 176nS de Soto, Hernando, 10, 47-48, 149, 155 de Sousa Santos, Boaventura, 179n10

civil law, 103-4, 172n1. See also statute law

Clapham, Christopher, 127 Coase, Ronald, 149, 159-60, 176nS colonization, 20, 27-33. See also British; Ghana

customary land tenure and, 26 Kibera settlement and, 131-32

common law, 172n1 costs, 10-11, 16, 173n7

of case filing, 139-40 of elders and chiefs, 69-72, 70t, 79, 141 of Land Tribunals, 70t of Rent Tribunal, 72-73 taxation related to, 74 criminal law enforcement, civil law

enforcement compared to, 103-4 cross-fertilization, of law, 97, 179n10 Crowde, M., 36 customary courts, 32

national courts compared to, 17 customary land tenure, 49 colonization and, 26 in Ghana, 112-15, 119 traditional leaders and, 25-26 customary law, 3-4, 13, 14, 183n2

developed countries’ laws alternatives and, 105-6 expectations about, 4-S, 103-4, 179n1 diamonds, PSCs and, 109

dispute resolution, 75. See also alternative dispute resolution; women’s property rights gender and, 92-93, 92t domestic violence, 89-90

The Dual Mandate (Lugard), 31 economics, 112. See also costs; income

customary law compared to, 48, 163

GDP per capita, 177n13 property rights and, SS

women’s property rights and, 46-47 education, 4, 81-82, 84-85, 87-90 effectiveness, 147t

of bureaucratic entrepreneurs, 78 in Kenya, 78

for authority, 41-42

in NGO property rights enforcement, 97 of property rights formalization and

for British indirect-rule, 31-33 in contemporary era, 40-41

of social institutions, 16, 18, 19t

description of, 25-26

of specialists in violence, 122

disadvantages of, 43-47

of traditional institutions, 50

advantages of, 41-42, 48-49

economics compared to, 48, 163

in Ethiopia, 38-39 ethnicities and, 41-44 extent of, 40 independence and, 31-34, 37-39, 61, 123, 132-33, 177n9

India’s property rights compared to, 30, 173n3 in Indonesia, 174n10 for leaders, 31 males and, 42

[202]

Index

women, 48

in Uganda, 77-78 elders and chiefs. See also Provincial Administration for colonialism, 33 cost of, 69-72, 70t, 79, 141 in Kenya, $6, 66-73, 70t, 176n1

in Kisii, Kenya, 69-73, 70t Land Tribunals related to, 67, 69 as mediators, 67 as state, 73 Ellickson, Robert, 82

enforcement, 103-4. See also effectiveness;

property rights enforcement regimes, 138-39 regimes evaluation, 146-49, 147t, 182n14

of statute law, 74 “suboptimal,” 60, 177n6

entrepreneurial bureaucrats. See bureaucratic entrepreneurs equity, 147¢ of bureaucratic entrepreneurs, 77, 156-57 in NGO property rights enforcement, 96-97 of social institutions, 17-18, 19t

British land appropriation in, 35 chiefs’ power in, 34, 113-14, 124, 176nS, 180n10, 183n1

colonial, land in, 34-37 customary land tenure in, 112-15, 119

economic growth of, 112 equity in, 121-22

Ethiopia compared to, 34-39 family-clan disputes in, 114 family disputes in, 113-14 independence of, 37 Land Registry Ordinance of 1895 in, 35 land titling and registration in, 113-14,

of specialists in violence, 121-22

Ethiopia, 33, 173n4

180n11

Civil Code of 1960 in, 38-39

Native Administration Ordinance of 1927 in, 36

code compared to customary law in, 39

Native Jurisdiction Ordinance of 1878 in,

court system in, 38 customary law in, 38-39

Public Lands Ordinance of 1876 in, 35

Ghana compared to, 34-39

independence in, 37-39 regions within, 37-38 tenure systems in, 174n9

ethnic gangs, 147t, 182n13, 183n15 Luo Kamkunji, 142-45, 182n12

ethnicities Ashanti, 27, 34, 180n10

35-36

social welfare in, 119-23 time in, 118, 150, 181n13

women’s property rights in, 174n12 girls, inheritance for, 46, $2, 175n16, 175n19 Goede, Meike de, 127 Green, Elliot, 178n16

guilds, 173nS

of chiefs, 142

customary law and, 41-44

Hagberg, Sten, 79

Kikuyu, 29, 134, 136, 138¢, 142, 148-49

Hailey, Lord, 29

Lozi (Barotse), 27

Hakaason, N. Thomas, 175n16

Luo, 133-36, 138, 138t

Hart, H. L. A., 58-59, 176n4

migrants within, 43-44 Nubians, 131-32, 134-35, 138t

Henrysson, Elin, 69, 177n7 Herbst, Jeffrey, 13 human rights office, 145-46 Human Rights Watch, 40

Executive Outcomes, 105-6, 108, 179n3 Ferguson, James, 85

FIDA. See International Federation of Women

identity, 155

Firmin-Sellers, Kathryn, 36

chiefs for, 42 in matrilineal systems, 175n16

Fitzpatrick, Daniel, 176nS

property related to, 8, 43

Lawyers

for women, 45, 175nn15-16

gangs

income

ethnic, 142-45, 147, 182nn12-13, 183n15

PSCs compared to, 111-12, 180n9 Gauri, Varun, 174n10

GDP per capita, 177n13 geography NGOs and, 93 of state power, 123-24, 130-31, 151, 160-62 Ghana, 29, 33, 161. See also Accra, Ghana

per capita, 69, 177n13

PSCs and, 111, 180n9

specialists in violence compared to, 111-12, 121-22, 128

independence customary law and, 31-34, 37-39, 61, 123, 132-33, 177n9

in Ethiopia, 37-39 of Ghana, 37 for Uganda, 61, 177n9

Index

[203]

information systems, 4-5, 87-88

lessons from, 149-51, 183n15 migration and, 132-33, 1S0-S1 NGOs in, 145-46, 147t police for, 136, 181nS

inheritance

Rent Restriction Act of 1982 and, 139, 182n8

India, 28-29 customary law compared to property rights in, 30, 173n3

for girls, 46, 52, 175n16, 17Sn19 in Kisii, Kenya, 69

in matrilineal systems, 175n16

women’ property rights and, 46, 174n12, 175n16

International Federation of Women Lawyers (FIDA), 86-89, 90-94, 92t, 179nn4-S, 179n7

Islam. See sharia law Isumonah, V. Adefemi, 43

Rent Tribunals in, 139-40, 147t, 182n8 respondents’ areas in, 136t, 137 social welfare assessment on, 147t study methodology on, 135-36, 135t-136t, 137f, 138, 138t, 181n4 violence and, 134-35, 145, 149, 151-52 Kikuyu, 29, 134, 136, 138¢, 142, 148-49 Kisii, Kenya, 50

chiefs and elders in, 69-73, 70t inheritance in, 69 interviews in, 69, 177n7, 177n14

Johnson, Simon, 151

PA for, 69-73, 70t

judges, 178n17. See also chiefs; elders and chiefs

per capita income in, 69, 177n13

population of, 68 Kambewa, Daimon, 79

Kisii Central, 177n13

Kano, 26-27 Kasanga, Kasim, 117

Land Administration Project (LAP), 114-15,

Kenya, 8, 161. See also Kibera settlement; Kisii, Kenya; Nairobi, Kenya

Land Committees, 63-64, 177n11

accessibility in, 76-77 chiefs and elders in, $6, 66-73, 70t, 176n1 effectiveness in, 78

181n12

Land Guards, 104-5 in Accra, Ghana, 22, 115-25

judges and court reporting in, 178n17

crime from, 116-17, 124-25 elimination of, 118-19

Land Tribunals in, 67-68

police compared to, 117-19

PA in, 66-68

restraint of, 116, 122-23

predictability in, 76 public opinion of bureaucrats in, 74-75 Uganda compared to, 74-75 women’s property rights and property

violence by, 116-17

rights formalization in, 47-48 Khadiagala, Lynn, 65 Kibera settlement, 23, 161, 181n1

ADR for, 145-46 chiefs and assistant chiefs in, 133, 136,

140-43, 147£, 181n3, 182nn9-10 City Council for, 181n6 class and, 133-34 colonization and, 131-32 conclusion on, 151-52 enforcement regimes evaluation in,

146-49, 147, 182n14 enforcement regimes in, 138-39

land markets, 28, 30, 173n4, 176nS

Land Registry Ordinance of 1895, 35 Land Tribunals, 63, 177n12 elders and chiefs related to, 67, 69

PA compared to, 67-69 women's cost estimates for, 70t

LAP. See Land Administration Project laws. See also specific laws British case law, 31, 173n6 cross-fertilization of, 97, 179n10 nonenforcement of, 74, 104 social change from, 5 LCs. See Local Councils Legal Aid Project, 92-93, 92t

legal property rights, customary law compared to, 3-4, 13, 14

ethnic gangs in, 142-45, 147¢, 182nn12-

Liberia, 11

13, 183n15 ethnicity and, 136, 138t, 149

Local Councils (LCs), 62, 66, 79, 179n9

housing and tenancy contracts in, 133-35 informal governance in, 138-39, 182n7

as informal settlement, 131, 181n2

[204]

Index

Land Committees compared to, 63-64, 177n11

Magistrate's Courts compared to, 65 in Tororo, 64, 94

a

Locke, John, 6, 7

Lozi (Barotse), 27 Lugard, Frederick, 29-31 Lund, Christian, 74, 183n3 Luo, 133-36, 138, 138t

Luo Kamkunji, 142-45, 182n12

description of, 83-84 geography and, 93 in Kibera settlement, 145-46, 147 motivations of, 90-91 social norms and, 100

Madagascar, 78-79

states compared to, 22, 83-86, 93-95, 98-100, 98f-99F North, Douglass, 5, 9, $9, 160, 163, 173n6

Magistrate's courts, 65, 177n12

NRM. See National Resistance Movement

mailo (peasant farmers’ land rental system),

Nubians, 131-32, 134-35, 138t

61, 177n9

Nyamira, GDP per capita in, 177n13

Malawi, 79

Mamdani, Mahmood, 30

Odinga, Raila, 134-35, 182n12

Martin, Abbi, 90, 177n7

oil companies

matrilineal systems, 175n16

PMCs for, 108-9

Mbembe, Achille, 108, 162 McChesney, Fred, 9, 160 media, 4

Oomen, Barbara, 51 Ostrom, Elinor, 17, 176n3

PSCs and, 108-9

Meek, C. K., 29-30 Mifumi Project, 45, 89-92, 179n4 migrants, within ethnicities, 43-44 mining, PMCs for, 108 Moi, Daniel arap, 134-35, 182n12 Mozambique, 44, 179n10 Museveni, Yoweri, 61-62

PA. See Provincial Administration per capita income, 69, 177n13 Peters, Pauline E., 79

Pinkerton Agency, Pinkerton Detective Agency, 106-7, 180nn4—5 PMCs. See private military companies

political entrepreneurs, bureaucratic Nairobi, Kenya. See also Kibera settlement

property rights enforcement lack in, 13

entrepreneurs compared to, 56, 57, 176n2

PSCs in, 110-12

political geography. See geography

Rent Tribunal in, 16

power, 12 capital cities and, 5, 13, 57, 123, 129, 160-61 ofchiefs, 30, 35-37, 41-42, 113-14, 124, 140-43, 155, 176nS, 180n10, 183n1 geography of state, 123-24, 130-31, 151, 160-62 land and, 6, 35-37, 172n2

National Resistance Movement (NRM), 62 Native Administration Ordinance of 1927, 36

Native Jurisdiction Ordinance of 1878, 35-36 NGO property rights enforcement, 14, 22 accessibility in, 96 conclusions about, 99-101 effectiveness in, 97

equity in, 96-97 FIDA as, 86-89, 90-94, 92t, 179nn4-S, 179n7 without force, 91 limitations of, 91-95, 92t, 100 Mifumi as, 45, 89-92, 179n4 missions and, 91-92

predictability in, 95-96 restraint in, 97

NGOs. See nongovernmental organizations nongovernmental organizations (NGOs), 157, 163. See also NGO property rights

of LCs compared to Land Committees, 63 in matrilineal systems, 175n16 of traditional leaders, 28, 32, 34, 37, 50-52, 154, 175n19 urbanization and, 13, 129, 130-31, 151,

160-62 pre-colonial era, 26-27 predictability, 147t of bureaucratic entrepreneurs, 76 in Kenya, 76

in NGO property rights enforcement, 95-96

enforcement budgets of, 93, 179n8

of social institutions, 16-17, 19 of specialists in violence, 120 of traditional institutions, $0-S1

conceptualizing legal processes in, 98-99,

traditional leaders’ unpredictability, 50-S1

98f-99Ff

in Uganda, 75-76

Index

[205]

See also nongovernmental

property systems, SO Proudhon, Pierre-Joseph, 7

organizations

Provincial Administration (PA)

privately ordered institutions, 20.

private schools as, 81-82, 178n2 state compared to, 14, 100, 126-28

private military companies (PMCs), 104

duties of, 66 Land Tribunals compared to, 67-69

public opinion of, 74-75

Executive Outcomes as, 105-6, 108, 179n3

PSCs. See private security companies

for mining, 108

Public Lands Ordinance of 1876, 35 public law, social norms related to, $8-S9

PSCs compared to, 106, 107

private security companies (PSCs), 104—S. See also Land Guards conflicts of interest for, 109-10

RCs. See Resistance Councils

rental property disputes, 71-73

crime from, 116-17, 124-25

mailo and, 61, 177n9

diamonds and, 109 enclave communities from, 108-9

study on, 134-36, 135St, 137f, 138-40,

gangs compared to, 111-12, 180n9

138t, 146-49, 147t, 182nn7-8 Rent Restriction Act of 1982, 139, 182n8

history of, 106-8, 180nn4—S

Rent Tribunals, 72-73, 139-40, 146-47

income and, 111, 180n9

Resistance Councils (RCs), 62

law enforcement personnel compared to,

restraint, 147t. See also violence bureaucratic entrepreneurs and, 78 of Land Guards, 116, 122-23

110-11, 125-27, 180nn7-8

for movement of people, 109

oil companies and, 108-9

in NGO property rights enforcement, 97

PMCs compared to, 106, 107t

of social institutions, 18, 19t

political geography, power and, 123-24

of specialists in violence, 122-23,

in Nairobi, Kenya, 110-12

for resource extraction, 108-9, 126 in South Africa, 126 property, 8

property formation, 7 property rights, 14. See also women's property rights capital formation from, 9-10, 47-48, 79

customary rights compared to, 29-30 definitions of, 6, 9, 12

early political theorists on, 6-7 economics and, $5

181nl14

of state, 78 of traditional institutions, $1 Ribot, Jesse C., 41 Rousseau, Jean-Jacques, 6-7 rural communities relationships within, $8, 176n3 state compared to, 57-58 Rwanda, 12

women's property rights in, 44-45, 174n14

for groups, 172n4

India’s customary law compared to, 30, 173n3 Locke on, 6, 7

modern understanding of, 7-8

poverty and, 180n9 power and, 12-13 Proudhon on, 7

Sandline International, 105-6, 179n3

secondary rights property rights compared to, 9 in women’s property rights, 45, 175n15 Sedogo, Laurent, 11 sharia law, 27

women’s property rights under, 46

Rousseau on, 6-7

Sierra Leone, 105-6, 179n3

secondary rights compared to, 9

Small, Michelle, 106, 107t social institutions accessibility of, 16, 17, 19t assessment of, 15-18, 19t, 20 effectiveness of, 16, 18, 19t equity of, 17-18, 19t

of widows, 174n12

property rights enforcement, 13, 153, 162-63, 178n3. See also Accra, Ghana; NGO

property rights enforcement legal pluralism and, 154-55 police for, 103-4, 117-19, 126 as public good, 85-86, 178n3

[206]

Index

locality of, 16 negative effects of, 173n6

predictability of, 16-17, 19t restraint of, 18, 19¢ social norms, 82

suboptimal innovations and, 159-60 traditional leaders compared to, 124

contracts and, 58, 176n4

in Venn diagram, 158-59, 159f

NGOs and, 100

violence and, 125

predictability and, 16

public law related to, S8-S9 in rural areas, 58

state compared to, 59 state related to, 13, 58-59, 159

statute law compared to, 154 social welfare, 156 evaluation of, 48-51

in Ghana, 119-23 in Kibera settlement, 147t Somalia, 106

South Africa, 180n7 Bhe case in, $2, 175n19 chiefs in, 50 customary law in, 40-41

PSCs in, 126

state institutions

“suboptimal” enforcement and, 60, 177n6

traditional leaders compared to, $2-53 state representatives. See also bureaucratic entrepreneurs

in Africa, 57 law violations by, 63-64, 67, 71, 75, 78, 157-58 statute law, 6 customary law compared to, 20-21, 25,

40-47, 59, 154-55, 176nS enforcement of, 74

social norms compared to, 154 statelessness and, 22-23

for women's property rights, 44 Strange, Susan, 127-28

traditional leaders in, 40-41

Supreme Court, U.S., 4-5

women’s property rights and property

Swaziland, 45 Szymanski, Ann-Marie, 107

rights formalization in, 48 specialists in violence, 22, 104, 157, 162.

See also Land Guards; private security companies

accessibility of, 120-21

Tanzania, 175n15$ taxation, 74

effectiveness of, 122

Thomas, Robert Paul, 5, 59, 160, 163 Tororo, Uganda, 64, 90, 94

equity of, 121-22

traditional authority. See traditional leaders

income compared to, 111-12, 121-22,

traditional institutions

128

accessibility of, 50

legality and, 117, 128

effectiveness of, 50

predictability in, 120

in pre-colonial era, 27 predictability of, 50-51

restraint of, 122-23, 181n14

state(s), 5, 80, 183n3 bureaucratic entrepreneurs related to,

56-57 city-states, 26-27

restraint of, $1 violence from, 51 traditional leaders. See also chiefs; elders and chiefs

civil society compared to, 83

apartheid and, 40-41

contracts and, 59 elders and chiefs as, 73

under British, 28 costs of, 173n7

mafia compared to, 127-28

customary land tenure and, 25-26 inequity of, 50-S1

NGOs compared to, 22, 83-86, 93-95,

98-100, 98f-99f power and political geography for, 123-24, 130-31, 151, 160-62

privately order institutions compared to, 14, 100, 126-28

power of, 28, 32, 34, 37, S0-S2, 154, 175n19

role restructure for, 51—S2 in South Africa, 40-41

state compared to, 124

restraint of, 78

state institutions compared to, 52-53

rural communities compared to, 57-58

unpredictability of, 50-51

social contract of, 125-28 social norms related to, 13, 58-59, 159

women and, 52 Tsikata, Dzodzi, 33

Index

[207]

Ubink, Janine M., 176nS

Uganda accessibility in, 76-77 Baganda in, 61, 177n8 changing land dispute resolution in, 7S effectiveness in, 77-78

FIDA in, 88-89, 90-94, 92t, 179nn4—S, 179n7

independence for, 61, 177n9 Kenya compared to, 74-75 Land Act for, 63, 88, 90

von Benda-Beckmann, Franz, 95 von Benda-Beckmann, Keebet, 95

Wallis, John Joseph, 9, 173n6 Weber, Max, 58-59, 125

Weingast, Barry, 9, 173n6 West Africa, women’s property rights in, 44, 175n16

Whitehead, Ann, 33 Williams, Michael, 111 women, 174n12

Land Committees for, 63-64, 177n11

ADR and, 179n6

Land Reform Decree in, 61 Land Tribunals in, 63, 177n12

on cost of elders and chiefs, 70-72, 70t

LCs in, 62-66, 79, 94, 177n11, 179n9

girls, 46, $2, 175n16, 17Sn19 identity for, 45, 17Snn1$-16 interviews with, 177n14 Land Tribunals cost estimates from, 70t traditional leaders and, 52

Legal Aid Project for, 92-93, 92t

Magistrate's Courts for, 65 mailo in, 61, 177n9 Museveni for, 61-62 NRM in, 62

predictability in, 75-76 public opinion of bureaucrats in, 74-75

customary law and, 21, 44-47

women’s property rights, 176nS

RCs in, 62

children and, 46 economics and, 46-47 examples of, 71-73, 94-95

Tororo in, 64, 90, 94

FIDA for, 86-89, 90-94, 92t, 179n4,

women's property rights in, 174n13 United States, 4-5, 105 Pinkerton Detective Agency in, 106-7, 180nn4-5

urbanization, 164 capital cities and, 5, 12-13, 23, S57, 93, 105, 123, 129, 160-61

power centers and, 13, 129, 130-31, 151, 160-62

179n7

in Ghana, 174n12 inheritance in, 46, 174n12, 175n16 joint ownership in, 44, 174n12 land values related to, 47

marital stability and, 45, 175n17

in matrilineal systems, 175n16 men’s property rights compared to, 44-45 Mifumi Project for, 45, 89-92, 179n4

Vanderpoel, Rachel, 23, 129

Venn diagram, state in, 158-59, 159f violence, 11-12, 18, 19#, 55, 183n4. See also

specialists in violence

property rights formalization and, 47-48, 155 in Rwanda, 44-45, 174n14 secondary rights in, 45, 17Sn15

bureaucratic entrepreneurs and, 78

sexual relationships and, 71

chiefs and, 42, 142, 178n18, 182n11 domestic, 89-90

under sharia law, 46 statute law for, 44

by ethnic gangs, 143-45

Kenyan election 2007 and, 8 Kibera settlement and, 134-35, 145, 149, 1$1-52

in Uganda, 174n13 in West Africa, 44, 175n16 Woodman, Gordon, 40, 50 workforce, in agriculture, 59, 60t

by Land Guards, 116-17 migrants and, 43 states and, 125 from traditional institutions, $1

[208]

Index

Yngstrom, Ingrid, 175n15 Zimbabwe, 178n15

|vie

‘i

SANDRA F. JOIREMAN is Professor of Political Science and International

Relations at Wheaton College, and

Editor of Church, State, and Citizen (Oxford University Press 2009).

“While central to the continent's future, land rights in Africa are difficult to study. Sandra Joireman provides a framework within which she successfully applies it t0 a Series Of important

cases. The result is a book that is thoughtful, penetrating, and informative.” —Robert Bates, Harvard University

“Sandra Joireman’s book exposes the fallacy of legalism in settings where central States are

unwilling or unable to enforce the property rights that exist in public or statute law. This book will be welcomed eagerly by both scholars and practitioners. Joireman’s clear logic and exposition opens the door to a topic—property rights and local-level governance—that has often been

regarded as bewilderingly complex.” —Catherine Boone, University of Texas at Austin

“An important study in understanding property rights institutions in contemporary Africa from a bottom-up perspective. Based on extensive field work, Joireman carefully analyzes how property rights are allocated, enforced and adjudicated outside the legal framework of the state.” —Elliott Green, London School of Economics