Academic discourse has mostly converged at a notion that institutions and bureaucracies in Africa are weak. This attribute of weakness is reflected in and is usually reinforced by issues such as elite capture, corruption [38
], inadequate infrastructure [40
], and the legacies of illegitimate colonial institutions [42
]. We consider institutions as rules that govern individuals’ lives and different organizational components of a state―political, economic, and social interactions―and comprise both formal rules (constitutions, laws, property rights), and informal constraints (sanctions, taboos, customs, traditions, and codes of conduct) [44
] (p.97) [45
], with the primary purpose of creating order and reducing uncertainty in society. While the histories, sources, categories, and functions of both formal and informal institutions in Africa are significantly captured in the literature [16
], the characteristics of these institutions, and how they shape the economic transactions, remain contentious.
One of the most influential and thought-provoking works on the logic of African institutions comes from Patrick Chabal and Jean-Pascal Daloz in their essay, Africa Works
. Chabal and Daloz [38
] contend that African institutions can best be understood as spaces of “institutionalized disorder,” where perverse corruption is both a major cause of and a product of ineffective institutions. They define institutional effectiveness in terms of the “Weberian ideal-type” bureaucracies, where institutional effectiveness is obtained by organizing their structure, purposes, and resources to provide rule-based governance which is fair, rational, and predictable. Arguing further, they show that African institutions are captured by clientelistic and patron networks, where rules of the game succumb to actor-networks that further perpetuate dysfunctionality. Thus, bureaucracies in Africa run counter to “Weberian” prescriptions. Bierschenk [46
] and Acemoglu and Robinson [43
] argue that the prevalence of ineffective institutions in Africa is a manifestation of colonial legacy. To Bierschenk, colonial development regimes left incomplete and contradictory reforms that make bureaucracies highly disintegrated―resembling never-finishing “building sites.” He further suggests that colonization created “formal” institutions that were superimposed on existing pre-colonial African institutions, and this affects modern state infrastructure [46
]. Such conditions weaken the modern institutions and provide undue agency to private and state agents, who perpetrate opaque business transactions.
Lund argues that by this nature, African institutions cannot stamp their authority, which is in line with the views of Luiz and Stewart [47
] that Africa is a zone of institutional voids. This perspective is, however, contrary to the views of Weintraub [48
] and Bayart [49
], who posit that the distinction between public–private or formal–informal is a Western thought, which does not have analytical purchase in the African contexts that have had a history of amalgamated European–African authority. Suggestively, the locus of institutional power is negotiated, unstable, and fluid, partly in line with Foucault’s view of power as “omnipresent,” revolving around actors and never controlled or being possessed [50
]. In view of these, Alexander [52
] argues against transplanting Weberian institutional norms to Africa and the Global South. Thus, viewing institutions in Africa via Western canons alone obscures a great deal of understanding of how the systems function on the continent [16
A relatively recent but growing body of literature suggests that African political systems and institutions could best be described as “hybrid,” a form of governance which embraces both formal and informal rules, to address debates on the formal–informal duality [53
]. Boege [18
] believes that hybrid approaches create avenues for modern practices to embrace customary norms, thereby respecting and utilizing traditional African systems in modern governance. Thus, the application of formal rules should resonate with the baggage of informal norms and cultures that govern the daily lives of the people, and scholars should explore this aspect of the debate [44
]. Yet, others believe that hybridity is not a useful concept, and hybrid operations may not serve as a panacea to institutional challenges in Africa, partly because the so-called local and Western norms are not always distinct, and thus should not be viewed as “others,” with incompatible philosophies [54
]. Moreover, hybrid systems may produce negative outcomes, because the discourse and practice of hybridity usually fail to disaggregate local contexts, and thus do not address historical and existing inequalities and power imbalances (e.g., of gender and class) that characterize the administrative systems in the Global South [17
Although the foregoing debates provide an extensive background to institutions in Africa, the approach taken in this article does not depend solely on any of these stances. We do not focus on the supposed weakness of formal or informal institutions (as separate entities) or grapple with their distinct functions. Our approach somewhat resonates with hybridity (by linking formal and informal arenas). Nonetheless, we do not pursue hybridity as a central focus, because the existing articulations of the concept remain unclear, and also imply insignificant formal–informal integration [17
], while a substantial debate about hybrid governance is beyond the remit of this article. It will be seen, however, that aspects of each of these views have implications on our discussion on small-scale mining in Ghana. We now turn attention to how the “disjointed” relation between state bodies and customary institutions functions against constitutional provisions on land and natural resource governance.
The Constitution, Chieftaincy, and Land Deals in Ghana: Association or Dissociation?
Chieftaincy is an African indigenous system of governance with executive, judicial, and legislative arms and powers. In Ghana, as in other parts of Africa, chieftaincy institutions are governed by “chiefs” whose symbol of authority is the stool/skin, depending on customary and cultural practices [55
]. According to Article 277 of the 1992 Constitution of the Republic of Ghana, a “chief” refers to a person, who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected, and enstooled, enskinned, or installed as a chief or queen mother in accordance with the relevant customary law and usage [56
]. The chieftaincy institution has endured from pre-colonial to post-independence periods in Ghana. Article 270 (2b) of the 1992 Constitution reiterates state support for the chieftaincy institution [57
]. For instance, Article 270 (3a) indicates that the laws of Ghana shall be consistent with the customary provisions laid down by the Regional and National House of Chiefs, while Articles 271–276 instruct that the House of Chiefs on the one hand, and the heads of Ghana’s Judiciary (i.e., the Appeals and Supreme Courts) on the other hand, should strike a balance between customary laws and liberal state laws―thus suggesting an intended integration of the two traditions.
Chiefs remain key actors in Ghana’s development. At least 80 per cent of the country’s land is held by the various traditional authorities as stool/skin lands per customary law, while the central government owns only 10 per cent for public development [55
]. The chieftaincy institution performs two main functions: statutory (settlement of disputes and the codification of customary laws) and non-statutory (socio-economic development).
Chiefs provided political leadership in pre-colonial Ghana in the past when the British introduced Indirect Rule, a system of government through the chiefs whose legitimacy and power enabled the British to easily extract the needed natural resources, labor force, and taxes for the colonial enterprise [58
]. Before this epoch, chiefs in southern Ghana exercised control over lands under their jurisdictions see [57
]). In northern Ghana, however, chiefs only had political authority, while lands were administered by the Tindana—
the earth priest [59
]. When colonial rule was instituted, chiefs lost their autonomy and were subjugated by the colonial government. Chiefs in the south continued to control lands but, this time, as prescribed by the colonial rulers. In the north, the Tindana
lost their control over lands to chiefs, who also conducted colonial business over their subjects [60
After independence, subsequent governments have also sought to limit the autonomy of chiefs through drastic laws, such as baring chiefs from active politics [57
]. For example, Kwame Nkrumah’s Convention People’s Party government set up new urban and local councils to take over from chiefs the levying of local rates on economic resources and sites. Nkrumah established the Local Government Ordinance, and elected local councils to replace native authority, put in place by the colonial administration. Following this was the enactment of the Stool Lands Control Act, 1960 (Act 79); the Administration of Lands Act, 1962 (Act 123); and the Concessions Act, 1962 (Act 124), among others. These legal instruments appropriated land rights to the state and further weakened the economic muscle of chiefs, as they could no more extract royalties [60
]. However, such measures were reversed, to some extent, by subsequent governments.
The 1992 Constitution reversed the trend, entrusting stool and skin lands and property to their respective jurisdictions. However, it seems the “liberating” nature of the 1992 Constitution has not resolved the discord between and challenges with formal and informal structures. In northern Ghana, for instance, the Tindana
have always wanted to reclaim their lost natural right as custodians of lands, which they lost since colonialism; the chiefs have also attempted to retain remnants of the powers vested in them by the colonial system of Indirect Rule; and non-chiefly families, clans, and ethnic groups who were forcefully (re)grouped under dominant chiefdoms, have demanded their lands and self-determinations back from “illegitimate chiefs” [61
]. The case of southern Ghana (e.g., among the Asante), however, differs, as chiefs have always been custodians of natural resources and wielders of political power before state interference [57
Articles 267–269 of the 1992 Constitution specifically unravel the contentions between customary and state institutions in natural resource management. Article 267(1) states that all stool lands shall be vested in the appropriate stool or skin on behalf of, and in trust for, their respective subjects in accordance with customary law and usage, and such lands shall be managed by the Office of the Administrator of Stool Lands (Article 267.2), to which all rents, dues, royalties, and revenues accruing from these resources must be paid (Article 267.2a). Any sale of land and property shall be examined and certified by the respective Regional Lands Commission (Article 267.3). According to Article 267.6, 10 per cent of the revenue accruing from stool lands shall be paid to the office of the Administrator of Stool Lands to cover the administrative expenses and the remaining revenue shall be disbursed in the following proportions: (a) 25 per cent to the stool through the traditional authority for the maintenance of the stool in keeping with its status; (b) 20 per cent to the traditional authority; and (c) 55 per cent to the District Assembly, within the area of authority in which the stool lands are situated.
To ensure effective coordination, the Administrator of Stool Lands and the Regional Lands Commission are tasked to consult with the stools and other traditional authorities and make available all data on land transactions (Article 267.7), while informing all state agencies (Article 267.8). In addition, parliament must determine the functions and limits of regional Lands Commissions and administrators of Stool lands (Article 267.9). To further enforce these regulations, Article 268.1 postulates that any transaction, contract, or concession by individuals, groups, or the government of Ghana, for the exploitation of any mineral, water, or other natural resources, must be subject to ratification by the parliament. This exercise of the mandate by parliament must be conducted through key bodies such as the Minerals Commission, Forestry Commission, Fisheries Commission or any other relevant entity, depending on the natural resources to be exploited (Article 269.1–2) [56
Enhancing the 1992 Constitution further, other supplementary regulations, such as the Minerals and Mining Act 703 (2006) [63
], Minerals and Mining (General) Regulations (L.I. 2173) of 2012 [64
], and the Minerals and Mining Policy of Ghana [6
], all place the control of mineral and natural resource transactions under the state while traditional rulers become the owners of these same lands; thus, ownership does not amount to the right to use. This appears to have created an institutional dissociation, which gives agency to actors from both formal and informal institutions to navigate the system for private and group benefits at the blind side of the state. To illustrate this, we turn to the next section, which discusses the Chinese involvement in illicit small-scale mining in Ghana, and demonstrates the unintegrated nature of formal and informal institutions, which breeds such activities.