Land Governance in the Context of Legal Pluralism: Cases of Ghana and Kenya

The purpose of this chapter is three-fold. First, African indigenous modes of land governance are considered in selected pre-colonial polities across eastern, western and southern regions. Opposing scholarly arguments are examined in terms of ontological and epistemological standpoints that turn on distinct historicized worldviews toward land governance and ownership. Second, in light of the above, comparative contemporary land governance in environments of post-colonial legal pluralism are explored in Kenya, Ghana and South Africa. In these democratized nation-states, not unlike others on the continent, architecture of traditional leadership and indigenous law were retained along with informal dispute resolution mechanisms. The chapter highlights how such legal pluralism relates to power and social relations pertinent to land access. Third, in both African indigenous knowledge systems (AIKS) and present day epistemological approaches to land governance, implications for gender are highlighted. Gender in AIKS is distinguished from gender in the westernized rule of law orthodoxy that governs land reform and restitution with an aim toward drawing lessons from AIKS for incorporation in contemporary land governance. Evidence from which arguments arise and conclusions made in this chapter is induced from previous case studies and archival records. Seemingly irreconcilable differences that appear to impede land governance given concurrent legal systems are identified and explained. The chapter concludes with recommendations as to how such legal tensions influencing land governance could be approached to benefit all, irrespective of gender, in the subject nation-states and others similarly situated.