By Camille Steens
Much of the literature on justice in post-colonial societies assumes that the majority of the population of these societies prefers traditional ‘informal’ customary justice institutions. The case study of Ghana however shows a different tendency. In Ghana, land disputes can be adjudicated through different institutions: informal or family tribunals, chiefs’ courts, quasi-legal state agencies and the formal state courts. Surprisingly perhaps, the state courts are overworked by the popular demand for them, while there is popular resistance to consider out-of-court dispute settlement. State court judges are respected and the kind of justice provided by these institutions is seen as appropriate and fair.
This is interesting to consider within the framework of thinking about ideas in institutional change, for before the British rule the traditional informal family courts were the only form of dispute settlement. The arrival of the British brought the system of state courts and emphasized the value of formal state courts versus informal dispute settlement. In order words, the British colonialists in Ghana created a “convention”: a shared idea that coordinates agents’ expectations, as defined by Mark Blythe (2002). Such a convention, Blythe argues, is a function of the ideas that have been used to “dismantle and replace the previous institutional order.” The British colonialists changed the formal institution available for dispute settlement because they had the idea that such a formal system with state courts was the best way to create an authoritative and enforceable judicial system. Blythe argues that once new institutions are constructed out of new ideas, these ideas “underpin” conventions and “make institutional stability possible.”
When the British left Ghana the institutional order that they implemented remained the preferred route for dispute settlement among the Ghanaian population. This shows that the new institutions constructed through an ideal of a formalized judicial system by the British structured Ghanaians’ expectations about the future by creating the convention of preferred authoritative and enforceable settlements by the state.