- Where There Is No Government: enforcing property rights in common law Africa
‘People want their property rights defended and they will seek the means to have them enforced.’ The quote captures the essence of Sandra Joireman’s ambition as she investigates how property rights are defined and defended in contexts where [End Page 666] government is failing to do it, or not doing it adequately. She raises the fundamental question of whose property claims are being defended as rights and by whom. Based on field research in Kenya, Uganda and Ghana, Joireman identifies three groups of non-governmental actors who are active in the business of defining and protecting land rights. First, she describes entrepreneurial bureaucrats – including chiefs – who operate outside of their designated responsibilities. These individuals use their official titles to settle disputes that people cannot otherwise have addressed; they thereby fill a local need unmet by government institutions. Another group of actors who engage in the exercise of public authority, despite being non-government by definition, are the NGOs. Finally, Joireman investigates vigilantes or ‘specialists in violence’. These actors are essentially thugs for hire, who will protect the claim of anyone who pays well.
While these groups share the characteristic of not being within the category of government, they are also quite different. This becomes clear when Joireman investigates their performance according to five criteria: predictability, accessibility, equity, effectiveness and restraint. While gangs may be very ‘effective’ they show little ‘restraint’, and while chiefs may be ‘accessible’ they score low on ‘equity’. Thus, the nature of the social welfare provided by these non-government institutions varies widely. A chapter is devoted to an analysis of each of these institutions, but it is especially in Chapter Six – the case of an informal urban settlement in Kenya – that the complexity is truly brought to bear. Here, several non-state institutions compete over turf, and the choice of the population is highly contingent on history, policy and opportunity. Indeed, it is not that a national government is non-existent, but that its erratic presence leaves great scope for other operators as well.
Joireman engages several larger debates. First, she takes on de Soto’s argument that formalization of existing ownership as property is the self-evident way to progress. The author points out that, given the equity issues resulting from customary law and customary dispute resolution, simple formalization of existing rights would be disastrous for women and migrants, and inequalities would thereby be structurally consolidated. If property rights are enforced by the most powerful, ‘might’ will simply become ‘right’. Considering the vital role of women in agriculture, this would potentially have very detrimental effects on the economy as a whole.
Second, Joireman engages with institutional historians like North and Thomas. They have suggested that once a state emerges it becomes the cheapest and most effective enforcer of property rights. This view resonates with the so-called property rights school argument that protection of private property is the very purpose of public authority. While Joireman shares their sensitivity for the political nature of property rights, she points to ubiquitous evidence from Africa that this classical claim does not ring true. The state may indeed not always be the most efficient and effective enforcer of property rights. Her evidence furthermore demonstrates that this is not a question of simple physical distance from a capital. There are large zones in African societies, even in cities like Nairobi and Accra, where governments do not govern, yet where different forms of property do exist, are defended, and are challenged. In clear prose, the author exposes the fallacy of legalism – the belief that law making through statute, legislation or precedent will be sufficient to bring about social change. In a certain way, this echoes the discovery of the early colonial anthropologists: ‘Native societies are governed even without government as we know it.’
This leads to a third issue that Joireman takes on only implicitly. While she questions the ‘fallacy of legalism’, her material also...