Legal pluralism in practice : critical reflections on the formalisation of artisanal and small-scale mining (ASM) and customary land tenure in Ghana

Mensah, Linda (2021) Legal pluralism in practice : critical reflections on the formalisation of artisanal and small-scale mining (ASM) and customary land tenure in Ghana. Extractive Industries and Society, 8 (4). 100973. ISSN 2214-790X (https://doi.org/10.1016/j.exis.2021.100973)

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Abstract

Since formalisation was officially introduced into the Ghanaian artisanal and small-scale mining landscape in the early 1980s, its law and policy framework has largely been driven by a state-run, institutionalised hegemony. This is against the background that ASM in Ghana, like many other countries of the Global South, operates on the peripheries of state law and from local communities where non-state, informal and customary laws are the main determinants of land rights and mineral resource governance. This paper draws on legal pluralism to highlight the reality and implications of these multi-level legal systems on ASM formalisation in Ghana. It presents a theoretical and conceptual overview of how formalisation's state-centric mining titling systems intersect with customary land tenure arrangements in the local mining communities. In so doing, this paper challenges two prevailing propositions under the current Ghanaian ASM formalisation regime: first, the universalisation of state-exclusivism in mineral and land rights allocation, and the rigid conflation of informal, non-state ASM operations with illegality. It argues that a decolonising socio-legal lens is best suited for transforming perceptions about concepts of ASM legality, legitimacy and access to property rights in legally plural contexts like Ghana. It concludes with a call for rethinking the methodological enquiries used in researching customary law in indigenous, formerly colonised contexts and suggests the use of more Afro-orientated methodologies for researching land and mining rights in Africa.

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