1. Introduction and Approach
Land registration is underpinned by some fundamental assumptions, which are implicit, but tend to drive implementation practices and approaches. How these underlying assumptions manifest in practice changes across time as approaches and rationales to land registration evolve. Since the early 1980s, efforts for land registration have witnessed an increase across the globe. The World Bank and other development agencies as well as local governments have made interventions on legal and administrative reforms that seek to improve land rights recording [1
]. This has been encouraged, on the one hand, by positive outcomes of land registration observed in the global north, and on the other hand, by economic theory that highlights a causal relationship between land registration and asset capitalization. The economic theory suggests that similar outcomes of registration as observed in the global north could be achieved in the global south [2
]. Although not without critique, De Soto’s argument renewed the push for the formalization of land rights in many countries at the beginning of the 21st century. In response to these calls, many countries with emerging land registers have increased the tempo of land rights recording since the early 2000s [3
In spite of the manifest desire and attempts to document land rights, coverage of and access to formal systems of registration have remained very low. It is argued that the majority of land holders still do not have access to land registration systems, mostly in the global south [4
]. Explanations relate to how the earlier attempts of land registration in the global south were conceived and implemented. These so-called conventional systems [5
] were merely a transplant of the western systems of land registration [8
] underpinned by technological solutionism and mostly implemented in a top-down fashion. The focus on land tenure reform through technocratic and legal solutions, rather than finding ways to represent tenure in its socio-cultural complexity, for example, has been one of the landmark commitments of the World Bank and other international donor agencies as part of the contemporary neoliberal development agenda in Africa [9
]. However, given the limited impact of this approach in terms of cost, flexibility, and speed, the agenda on land registration for the developing world, including Africa, has shifted considerably in favour of approaches that are more flexible, representative, and context-driven. The new approaches come under the banners of pro-poor land recordation since 2007 and fit-for-purpose land administration (FFP-LA) since 2014 [4
]. The term “pro-poor land recordation” refers to initiatives of land rights recording that seek to address the needs of the poor, because it has been recognized that poor and marginalized groups have been neglected or negatively impacted by land rights documentation efforts in the past [11
]. Tendencies of further marginalization are even higher in contexts with low literacy rates [14
]. FFP-LA refers to land rights recording approaches that are flexible and focused on serving the purpose of a land administration system rather than focusing on the deployment of top-end technical standards [4
]. FFP-LA also advocates the recording of diverse land rights, including those held by the poor and marginalized such as secondary rights [10
]. Thus, the scope of FFP-LA implicitly reflects the essence of pro-poor land recordation as it seeks to address, among other things, the needs of the poor and marginalized.
In terms of implementation, both conventional and FFP-LA approaches of land registration are interlaced and play in different and common ways towards the delivery of land registration services. Both approaches are often combined as most of the existing cadasters are built on conventional approaches [10
]. Therefore, the operationalization of FFP-LA approaches takes two forms. On the one hand, they serve as substantive approaches in contexts where fresh land registers are compiled like in the case of the Rwandan land register [10
]. On the other hand, they serve as complementary approaches when they are integrated into existing conventional approaches to enhance coverage and to catalyze the rate of recording.
Although FFP-LA explicitly seeks to remedy the problems and sometimes negative effects of earlier conventional systems of recordation, these newer approaches seem to run into a set of problems and challenges [13
] that are not unlike those of conventional systems. Uptake and scaling remain difficult, documentation processes become biased through stakeholder politics and lack of interest on the part of land holders, and financing and data protection pose further challenges.
These observations led us to wonder if the reasons for the difficulties to register land lie, at least partially, outside of the realm of differences in technology or procedures and even outside of the debate regarding top-down state-driven versus bottom-up citizen-led approaches. Instead, our study aims to explore whether there are assumptions at work at a more fundamental level that cut across and hence mess with approaches regardless of technological and institutional details and differences. Drawing on existing literature on land registration in conjunction with empirical research on land transfers and registration in Ghana over the past four years, we identify and discuss three such generic assumptions underlying conventional land registration systems. They also have implications for newer fit-for-purpose (FFP) approaches, albeit in a different form. Although the assumptions are simple enough, we argue that a renewed reflection and a critical re-engagement with them increase the chances for success in land rights registration across a variety of approaches from conventional to FFP [16
To identify the assumptions, we first posed three cardinal questions on land registration that we find overarching and topical in the literature: (a) why land registration, for whose interest, and when is it suitable? [2
]; (b) to what extent can land rights be represented in the land register? [21
]; and (c) how is access to a land registration system gained or denied? [23
]. From these questions, we extract the themes, “desirability”, “registrability”, and “accessibility” of land registration, respectively. We then put each theme into a simple expression that reflects conventional land registration thought as shown in the literature. Moreover, through our previous studies in Ghana over the past four years [26
], we used interviews to gather information on existing land rights, landholdings, transfers, and practices of registration from landholders, traditional authorities, and actors within the hybrid administrative scene (both customary and statutory). Ghana’s land registration started in the colonial era and evolved as a deed registration system until 1986 when the Land Title Registration Law (PNDCL 152) was passed and piloted for a limited part of Ghana alongside the existing deed registration system [29
]. Land governance structures in Ghana are patterned into centralized (where land control rests with chiefs) and decentralized (where land control rests with earth priests and family heads) [30
]. Both the state and traditional authorities own and control land, although that of the latter is dominant [29
The paper is structured as follows. In Section 2
, we describe the three assumptions in land registration and how they manifest in conventional land registration approaches, in how far there are reasons to doubt the general applicability of the assumptions and what they imply for newer FFP approaches. In a second step, in Section 3
, we play the assumptions against the empirical details based on a four-year research in Ghana’s land registration context. This allows us to fine-tune the assumptions based on empirical realities; and to make this explicit, we add small, simple qualifications to each assumption that may serve as sort of “prompts” to make the implementation team and promoters aware of and explore possible context-specific deviations from oft-held assumptions. In a final step, in Section 4
, we highlight the main implications of our study for FFP-LA. To explicate the implications more clearly, we provide a number of questions that may allow other researchers and stakeholders in registration projects to re-engage with some of the fundamental assumptions in land rights registration in a constructive manner.
4. Implications and Key Questions for the Implementation of FFP-LA
In this section, we draw insights from Section 2
and Section 3
to discuss the main variables that can inform a reflection and debate of the outlined general assumptions as FFP-LA together with conventional approaches moving forward. While the highlighted assumptions in land registration continue to serve as positive push factors and justifications to enhance proactive thinking and action, they have the tendency to alleviate the need to zoom into empirical realities, and this can make them problematic to the success of implementing land rights registration practices and technologies. When an assumption is discussed in light of the given empirical situation, it can be modified or finetuned to closely reflect reality [59
]. Applying this argument to the context of land registration, we discuss some general assumptions in light of specific contexts for intersubjective acceptability. Scrutinizing each assumption against the realities of a given empirical situation or implementation scenario in the field can not only be a tool to avoid problems in the long-run owing to (partially) faulty assumptions, but can help finetune the process of implementing conventional as well as FFP approaches or a combination thereof.
To engage in the scrutiny, we provide here a number of questions that may allow researchers and stakeholders in land registration projects to re-engage with some of the fundamental assumptions in land rights registration in a constructive manner. The three sets of questions discussed below are meant to serve as entry points into the empirical scene from the point of view of each of the three assumptions that we have discussed in this paper.
First, for desirability, we suggest asking the questions, what are the socio-political reasons to register/not register for different groups, and how do they change through time?
Often, the desirability of land registration is discussed in more generic ways, unshaped by different perspectives and interests. It is especially important to consider variations in desirability especially in contexts where the state does not have absolute control over land and where registration is voluntarily sporadic. There is a further paradox in these situations, where some agencies of the state may envisage the need to have land registered, but at the same time, leave the initiative to the landholder, who by his/her circumstance does not see the need to register [38
]. At the micro level of individual landholders, the need for land registration might be occasioned following the occurrence of certain events such as intra-family contestations. However, if such needs do not arise, little/no effort is made to undertake registration. This shows that land registration might not be seen as inherently desirable by land holders, especially in rural contexts. It is thus important to identify the reasons why different groups of landholders might be interested in registration or not, and the factors that drive change in such decisions. This helps in finding out the appropriate time and manner to intervene with land registration. Sewornu [60
] argues that, without understanding the underlying reasons why landholders choose to use land registration systems or off-register strategies to secure their land, it is difficult to target aspects of the land registration system for improvement. At the macro level of the state, it is understandable that governments are sometimes torn between their local realities and the requirements of donor agencies, which add a second layer of political twist beyond the state’s own political agenda to promote registration [46
]. This political twist has been at play in many land registration interventions in developing countries as they are mostly funded by donor agencies [46
]. For FFP-LA, there is the need to keep a balance between the state’s desire to undertake land registration and the reality of landholdings and local economy within a community. If the local economic circumstances are ripe, it might be sufficient to entice people to undertake registration after an initial register is compiled [40
]. Figuring out the right time to deploy land registration can go a long way to promote sustainable land registers. However, it is important to mention that, where local conditions do not appear to be ripe for mainstream land registration interventions, local systems of recording can be relied upon for upscaling later on, using flexible standards and gateways [61
]. For Ghana in particular, the Customary Land Secretariats (CLSs) can be instrumental in recording land rights at the local level for mainstreaming at a later time.
Second, for registrability, we suggest asking the questions, how do rights change through codification? What are the pros and cons, for whom? What rights cannot or should not be codified and hence need to be protected (if they need to be protected) by other means than registration?
Registrability of land rights has been topical in both conventional and FFP approaches and has dominated discourses on land rights recording for decades, especially for customary land rights [2
]. While mapping land itself might be straightforward, mapping land relations can be complex and difficult to fit into predesigned administrative schemas. The difficulty lies in keeping a balance between recording and transformation, which is characteristic of land registration endeavors. It is vital to recognize that registration not only “maps what is there”, but changes or catalyzes changes in the social relations (family, clan, and tribe) by changing people’s and group’s relations to space [48
], especially where both private and communal rights of landholders overlap. As noted by Scott [45
], the cadastral map does not merely describe a system of land tenure, it creates such a system through its ability to give its categories the force of law. Thus, for FFP-LA, it is important not to obstruct relevant locally constructed land relations, but to record them as is, so as to alleviate the transformative effect of land registration. For example, in the Upper East region of Ghana, we find highly dynamic rights for female heirs and Earth priests, which by their nature are difficult to record, and if at all any such efforts are made, they more or less result in transformation rather than representation of the existing rights, which might create the very problem that registration in itself sought to solve: insecurity of tenure. Therefore, land law, which is often used to redefine land rights in most land registration campaigns, can be used to make express definitions of de facto land rights where possible, while allowing alternative means of protection for highly dynamic land relations that bear local relevance even if no recording is done.
Third, for accessibility, we suggest asking the questions, what are the current practices and underlying norms that provide access? What are the variations in such practices across a territory in question (e.g., a nation state) and different forms of access and involved actors?
Access to land registration is embedded in socio-cultural practices of land allocation, practices of landholding, as well as practices of land registration, unlike some Western contexts where access to land registration is contingent on the nature of interactions that ensue between state and citizen during registration [37
]. To conceive access purely as a state-citizen encounter appears narrow, and this needs to be broadened especially for contexts where there are multiple layers of actors in the registration process owing to the nature of land tenure. Where traditional authorities (non-state) play a substantial role in land control and registration, access to registration then becomes an encounter of differential powers embedded in socio-cultural structures of land governance and social stratification [27
]. For example, intra-family arrangements such as the definitions of who qualifies as a permanent or temporary lineal member by far determine how secondary and ownership rights to property are allocated [26
]. By limiting certain groups of people to secondary rights, their ability to benefit from land in certain ways, including registration, is hindered [24
]. Socio-cultural strategies like the allocation of secondary rights to female heirs in the Upper East region result in non-registration as male members (holders of ownership rights) do not allow them to register such rights for fear of transforming them into exclusive individual rights. Even during the processes of registration, we see the effect of power differentials in the Ashanti region, where chiefs foment land control by barring the allocation and registration of potentially perpetual rights like the usufructuary rights. Thus, the socio-political or cultural forces that produce land rights differentiation between chiefs and subjects, and male and females, for example, can be deemed in themselves as determinants of accessibility aside administrative bottlenecks. Therefore, for FFP-LA, it is important to focus on the influence of power differentials in the process of surveying and registration, for example, by ensuring that different types of actors are included in both the design and implementation stages.
In sum, for land registration to really meet the objectives of being FFP, we need to look critically into contextual realities and evaluate the specific needs or constraints thereof within communities. Why registration is needed, as well as when and from whose perspective, needs to be understood hand in hand with the underlying social structures through which land rights are accessed or denied. A clear understanding of these variables is useful in setting the foundation for recording practices that closely reflect the empirical context. A reconsideration of some of the major assumptions running across various registration approaches can be part of a constructive way forward in the manner in which land registration programs are designed and carried out.