Policy makers in developing countries face difficult choices when it comes to designing court institutions for settling land disputes. On the one hand, the state court systems are often overburdened with cases. They are often also too expensive to access for most citizens, in particular for women. In other words, to increase the number of courts and reducing the fees may not be a real option in cash-strapped countries with poor populations. Different approaches are required. However, the alternatives may be easier to access, but they often have other unintended consequences.
I was reminded about the dilemma when I read the article Government must consult rural women on the Traditional Court Bill, which criticises the South African government’s decision to vest responsibility over land disputes in customary authorities. A similar critique is raised in the book Land, Power and Custom: Controversies Generated by South Africa's Communal Land Rights Act by Aninka Claassens and Ben Cousins. It describes the customary authorities as being patriarchal and criticizes them for drawing on a repertoire of practices that discriminate against women. Another scholar, Richard Crook, based on his research in Ghana, also warns us against the romanticisation of traditional or customary institutions in his conference paper The state and local justice in Ghana: hybridity, legitimacy and popular values.
In Tanzania, the government in the 1999 Village Land Act and the 2002 Courts (Land Disputes Settlements) Act chose a middle way, prescribing the establishment of village land councils made up, not of professionals, but of appointed laymen and women. The acts also recognized the role of traditional authorities in settling land disputes, but prohibited all gender-discriminatory practices. In theory, these laws and regulations are sound and pragmatic. What the authorities do in practice, however, may be a different matter.