1 Introduction

Litigation of the century-old Nkonya-Alavanyo conflict has not yielded the resolution dividend, despite five court judgments on the matter. While the literature references litigation between the parties and its lack of effectiveness in resolving the conflict, there is a paucity of detail about this litigation. This paper fills that gap in the literature to contribute to a more holistic comprehension of the discourses structuring attempts at resolving this conflict. Drawing on archival data (primarily judicial proceedings), media reports, previous research, and field interviews, we examine the trajectory of the Nkonya-Alavanyo conflict in the Ghanaian judicial system as an example of an intractable communal conflict that has defied judicial resolution. After presenting the research question and methodology, we proceed with a brief background to the conflict. This is followed by a comprehensive review of the trajectory of the conflict through the judicial system. Finally, we provide a detailed analysis and discussion, concluding with noteworthy recommendations for governments and civil society organisations.

2 Research Question and Methodology

Despite five decisive court judgments, why does the Nkonya-Alavanyo conflict persist? Retracing how taken-for-granted social knowledge is produced helps understand its raison d’être as well as its location within a hegemonic order of discourses.¹ We argue that the judicial treatment of the Nkonya-Alavanyo conflict has given rise to its own discourses of knowledge, undergirded by the power of judicial authority. This, however, is just one possible set of discourses competing with other discourses.

Therefore, we accessed court records regarding litigation between the two communities, mediation committee reports, archival news reports as well as published and unpublished research related to the conflict. This article also draws on fieldwork interviews generated over a period 2014–2020 from both Nkonya and Alavanyo that engaged the lived experience of the people involved in the study² and allowed us to avoid the methodological trap that Millar³ warns about in terms of a failure to account for community experiences.

3 The Nkonya-Alavanyo Conflict: from the Known to the Unknown

Communal conflicts are ‘violent conflicts between non-state groups that are organised along a shared communal identity.’⁴ According to Coleman,⁵ intractable communal conflicts are insoluble conflicts that defy all attempts at resolution. To Vallacher et al., ‘beyond destabilizing the families, communities, or international regions in which they occur, intractable communal conflicts tend to perpetuate the very conditions of misery and hate that contributed to them in the first place.’⁶ In the African context, land contestation is often at the heart of communal conflicts.⁷ Such characterisations capture the Nkonya-Alavanyo conflict in Ghana, which revolves around land to the extent that land has existential, non-negotiable value as ‘not only an economic resource but also the basis of spirituality, identity, history, rootedness, and belonging.’⁸

The Nkonya are believed to have settled in the conflict area around the C16th, with the Alavanyo arriving two centuries later.⁹ Ethnically, the Alavanyo are Ewe while the Nkonya are Guan.¹⁰ Today, Nkonya and Alavanyo belong to the Bia District in the Oti Region and Hohoe Municipality in the Volta Region respectively. They share a common boundary, part of which has become a source of acrimony. The conflict between the two groups dates to the early part of the 20th century when disputes arose around farmlands. Nkonya lies north of Alavanyo, and the disputed land is approximately 6,460 acres.¹¹ Until 2019 when Nkonya became part of the newly formed Oti Region, both communities were part of the Volta Region, which lies east of the national capital, Accra. In that previous regional construct, the Nkonya were a minority ethnic group. Both communities are predominantly agrarian and while that has a bearing on the stakes involved in the conflict, the disputed land has timber resources and is also believed to be mineral-rich.¹²

Coleman writes that some conflicts have been intractable for centuries.¹³ We place the Nkonya-Alavanyo conflict within this category. As noted by Yakohene, ‘the maturation of the Alavanyo-Nkonya conflict and its ramifications for peace and stability in Ghana has been an issue of grave concern for various political administrations over the years and concerned Ghanaians in general.’¹⁴ This is consistent with the literature on intractable communal conflicts as the communities appear to be caught in a vicious cycle of retaliatory attacks, some of which have resulted in fatalities and the halting of socio-economic activities. Yakohene further argues that the various resolution efforts have, however, been unsuccessful.¹⁵ Accordingly, the conflict has animated Ghanaian research¹⁶ and publications.¹⁷

The literature nuances understanding of the conflict, tracing its origins, causes and effects (including hardship and threats to both local and national peace and security), and resistance to resolution attempts. It also shows an increasing State militarisation of the conflict. Within a militarist construct, ‘military power and force are used to resolve political and social problems.’¹⁸ Most of the authors of the literature are scholars or civil society activists who embedded themselves in the conflict communities through field research, with the aim not only to mobilise grassroots knowledge of the lived realities of the people, but also to promote peace. This factor informs civil society discourses that contribute to the conflict resolution narrative. The literature identifies as a sticking point a series of court decisions that have favoured the Nkonya in their litigation with the Alavanyo over the disputed land.

These works avoid being judgmental and nuance the fundamental question of why decisions made by courts of competent jurisdiction have not been enforced, although Ghana is a nation governed by the rule of law. As noted by Yakohene ‘the lack of enforcement of the rulings and the inability or failure of the agencies responsible for the enforcement created a derisory image of the judicial system.’¹⁹ There is an implication that the judicial system is to blame for the failure of litigation to resolve the conflict. This paper provides more detail about the court cases so that the evolution of the juridical discourse associated with this conflict, as well as any contributions of the judicial system to the intractability of the conflict, can be appreciated. Again, Gariba argues that ‘in many cases it has been demonstrated that court verdicts are not final, but are contingent on discourses of negotiation, contestation and the attempt to draw on the past and drag it into the present to make one’s case.’²⁰ In this paper, we are interested in the discursive currents that compete with or complement the legal discourse.

Another significant lesson from the literature is that State and civil society attempts at mediation in the dispute shift the balance from the rights-based focus privileged by the legal system to a needs/power-based focus. In the latter configuration, the parties are treated as stakeholders and their potential abilities to impact the political calculus determines State policy. Mutual satisfaction becomes a factor. For instance, when the government proposed at a stakeholder forum in 2015 to appropriate the disputed land, the National Democratic Congress (NDC) [one of the two dominant political parties, which, at the time, formed the government in power] was the only identifiable group with reservations, possibly due to potential electoral consequences in 2016.²¹ As suggested by stakeholder theory, legitimacy of interest is not the only criteria, as relative power and urgency become additional variables.²² Thus, while the legal system has been held out as the proverbial strawman, we see the potential for the argument that it is rather the political State which has failed the Nkonya-Alavanyo conflict.

The futility of western conflict resolution mechanisms such as courts and commissions of inquiry in Sub-Saharan Africa has been noted. For example, Onwuzuruigbo’s²³ work on the utility of traditional forms of conflict resolution in the face of otherwise intractable communal conflicts in neighbouring Nigeria is instructive. However, as Onwuzuruigbo concedes, traditional or civil society-based conflict management efforts are not necessarily guaranteed success, as indeed, the Nkonya-Alavanyo case shows. Furthermore, the research suggests courts in Sub-Saharan Africa have the capacity to resolve communal conflicts, but there are caveats. There is a correlation between public trust of the State establishment as a whole and the efficacy of courts in resolving communal conflicts.²⁴ Furthermore, ‘inequitable governance of shared resources and ambiguous court decisions can contribute to anger and frustration among the disputants. Such perceptions of injustice and collective identities often overlap and facilitate mobilization for collective action.’²⁵ Similarly, Crock et al²⁶ demonstrate in their studies in Ghana and Côte d’Ivoire that while the courts are critical in the resolution of communal conflicts, they require improvements and support. In other words, there are structural and systemic factors that motivate the efficacy or otherwise of the judicial system in communal conflict resolution. Thus, as a result of State institutional weaknesses, the International Crisis Group reports of a situation in Mali similar to the Nkonya-Alavanyo conflict as follows:

In the north of Koro cercle, the Dogon of Gondogourou and the Fulani of Mbana have faced off for decades. Here, tensions between the two communities stem from the Dogon farmers’ use of the Tolodié grazing reserve, which the Fulani control. These tensions escalated in 2002, prompting the Dogon to attack the Fulani village of Mbana, where they killed at least five people including the village chief. Despite several court rulings, the conflict was never resolved.²⁷

Furthermore, where other legal institutions such as customary courts compete with the judiciary for authority, the latter have been found to be less effective in resolving communal land conflicts.²⁸ As Eck notes, within that context, ‘the uncertainty engendered by such a system also restricts the ability of security forces to enforce decisions, compounding the incentives for groups to settle disputes extrajudicially through violent vigilante measures.’²⁹ Arguably, the competition presented by the customary courts in Eck’s analysis could be replaced by competition from other sources of power within society. Thus, the argument that ‘when individuals can adjudicate in several fora, the authority of any given forum is undermined by the existence of the others’³⁰ could be applicable irrespective of the kind of fora engaged.

4 A Tale of Two Maps: the Anatomy of Nkonya-Alavanyo Disputes in the Courts

The Nkonya-Alavanyo conflict dates back to colonial West Africa in 1904,³¹ but the litigation begins with a tale of two maps: the 1905 Karte von Togo and 1913 Karte des Sechsherrenstokes purportedly made by Hans Grüner (sometimes spelt ‘Grunner’). Grüner served as an administrator in Misahöhe, the trans-Volta district of German colonial Togoland, which now covers part of the Republic of Togo as well as bordering areas in the Volta and Oti Regions of Ghana. As part of his duties, he settled boundary disputes between communities based on oral history and mapped out boundaries for administrative purposes.³²

The litigation started with the case of P Kodjo v Prikutse and Others³³ in the Akpini Native Court B of Kpandu in February 1953. The plaintiff sought a declaration of title to and recovery of possession of the land in dispute. In addition to seeking injunctive relief against the defendants, the plaintiff also sought damages from each defendant for ‘trespass wilfully committed on the said land, to wit, by clearing and making cocoa farms thereon without the knowledge and consent of the plaintiff.’³⁴

On 31 March 1953, the case was transferred to the Land Division of the Supreme Court (High Court) of the Gold Coast (colonial Ghana). The list of parties had expanded and the suit was now titled Paul Kojo Anane (Regent of Nkonya Tayi) v Kwasi Asigbetse, Kosihu, Eugen Prikutse, Joseph Foli, Kokor Sampede, and Aaron Tsiame Kuma.³⁵ With a view to preparing a composite plan to facilitate the adjudication process, the court ordered the parties to file ‘the list of natural features, boundary marks, villages and farms which each party wishes the surveyor to demarcate on the plan.’³⁶ When Kwamena Bentsi-Enchill, plaintiffs’ counsel, filed their list on 8 July 1953, he hinged their strategy on a map drawn by Grüner in 1913, Karte des Sechsherrenstokes, purported to demarcate boundary lines between the Nkonya and their Alavanyo neighbours. For the plaintiffs, the discursive nodal point was the Grüner Map and its corresponding concrete pillars erected to mark its boundaries. In his Statement of Claim, the first plaintiff identified himself as ‘trustee and Caretaker of all Nkonya Stool Lands’³⁷ and claimed the land in dispute as ‘the property of the Nkonya Tayi Stool.’³⁸ The first plaintiff identified the defendants as ‘subjects of the Alavanyo Stool’ who had persistently committed trespass on the said land ‘despite repeated warnings.’³⁹ He claimed that many attempts at traditional arbitration had come to naught.

When on 30 September 1953 the defendants complied with the order to provide particulars of their boundaries, describing themselves as ‘subjects of Alavanyo’,⁴⁰ the defendants located the property as falling within the boundaries of Alavanyo Stool lands. In their Statement of Defence, they took issue with the boundaries set forth in the Karte des Sechsherrenstokes. They claimed that for between ‘50 to 72 years’⁴¹ they had been in undisturbed occupation of the land belonging to the Alavanyo Stool and thus disputed that their occupation constituted trespassing. The defendants engaged in a series of Anya or Ntombe trees, some of which were supposedly planted to demarcate boundaries drawn by Grüner. The plaintiffs subsequently joined more parties to the suit, including Nana Atakora IV of Alavanyo Kpeme on the grounds that since the defendants claimed to draw their title from the Alavanyo Stool, ‘the occupant of the Alavanyo Stool must be joined [as a defendant] as being the party actually asserting an adverse title and certainly his interest will be affected by the result of this action.’⁴² As well, Nana Akotor Kwasi, paramount chief of Nkonya joined as a co-plaintiff. The rationale for joinder was that ‘the Plaintiff sues as the Regent of Nkonya Tayi, a Division of the Nkonya State, but the boundary claimed by him is also a boundary of the Nkonya State and the Alavanyo State.’⁴³ The Akpafus and Santrokofis, neighbouring communities, were also joined to the suit as co-defendants and co-plaintiffs respectively. This was now effectively not just a case between individuals but between communities.

In his pleadings Atakora IV asserted that there had been a 1905 Grüner demarcation. The Nkonya, he alleged, ‘prevailed upon Dr Grüner to try and vary that boundary but the co-defendant refused to have the 1905 boundary varied.’⁴⁴ Indeed, Atakora IV continued, the 1905 demarcation had been used by ‘Captain Lilly, District Commissioner, in 1923’⁴⁵ when another demarcation took place. Atakora IV claimed that the boundaries set out in the Lilly assessment were subsequently used by the British colonial government in 1929 when part of the land was appropriated for the Togo Plateau Forest Reserve. He claimed that he himself, together with the first plaintiff and chiefs of adjoining communities were present when this demarcation took place, with none of the parties opposing the said demarcation. To that extent, he argued, plaintiffs were precluded from claiming adverse title. In turn, the plaintiffs pleaded that it was the defendants who were precluded because ‘the Head Chief of Alavanyo had accepted and acquiesced in the boundary demarcated by Dr Grüner, and that in the enquiry set up to establish communal boundaries within the Togo Plateau Forest Reserve all the parties acceded to the finality of the [1913] map of Dr Grüner showing their respective boundaries.’⁴⁶

At trial, Godfried Kwamie testified for the plaintiffs that he was an interpreter for Grüner, who, in 1912, together with representatives of Nkonya and Alavanyo, had ‘cut a boundary between Nkonya and Alavanyo’⁴⁷ following a boundary dispute between the two communities. Subsequently, in 1913, Grüner had produced copies of a map of the boundary, and a copy was given to the chiefs of each of the parties. He was not challenged on this on cross examination, with the legal implication that this narrative was admitted as fact.⁴⁸

Another witness for the plaintiffs was Edward Norton-Jones, a former District Commissioner, who, as Forest Reserve Settlement Commissioner in 1931, had managed the inquiry into the Togo Plateau Forest Reserve, to decide the interests of the parties in the reserve. He denied the defendants’ claim that Lilly had made a demarcation in 1923. He testified that all of the six states in the area including Nkonya and Alavanyo ‘agreed with the boundaries as determined between themselves by Dr Grunner.’⁴⁹ He tendered a certified copy of the ‘evidence and judgment of the Togo Plateau Enquiry’⁵⁰ as well as the map that was accepted into evidence during the investigation. This was the Karte des Sechsherrenstokes. He submitted a copy of the Forest Reserve map, which had been informed by and referenced the Karte des Sechsherrenstokes.

The Norton-Jones’ testimony was important for several reasons. One was that it showed that the Karte des Sechsherrenstokes was not in the exclusive possession of the Nkonya: colonial government officials had access to copies of the map. Second, it established the accuracy of the map vis-à-vis physical spatial elements. The principal witness for the defendants, Winifried Dornya, the ‘Alavanyo Stool Father and Caretaker of Alavanyo Stool Lands,’⁵¹ insisted that the only Grüner map recognised by the Alavanyo was drawn in 1905, and that there had been no subsequent demarcation in 1913. He tendered a copy of the Karte von Togo that the Alavanyo argued had been prepared by Grüner in 1905. Counsel for the plaintiffs attacked the date of the Grüner survey and while Dornya conceded that all the parties to the Forest Reserve Settlement had agreed on boundaries, he argued that no map had been used in that instance and his side had confused all references to a map with the Karte von Togo. He testified that he was nine years old in 1905 when Grüner demarcated boundaries for the map that he had tendered in court and was present when Grüner handed this to the chief of Alavanyo. Though he also tendered a copy of the 1913 map, he argued that the Alavanyo had only acquired it from the open market just four years prior. He however contradicted testimony in his evidence in chief by conceding on cross examination that a survey had taken place in 1913 but he insisted that the Alavanyo side had not participated in this survey.

When counsel for the parties addressed the court after closing their respective cases, Charles Hayfron-Benjamin, as counsel for the defendants, raised a few points. One was that ‘even if the boundary was judicially decided, what is the equitable ground to prevent the defendants from entering upon the land in respect of which they had never been prevented from farming thereon?’⁵² In response, counsel for the plaintiffs declared that ‘the plaintiffs will not press for the reliefs of damages for trespass, nor for injunction, nor for recovery of possession if the court were to find in their favour their boundary as claimed.’⁵³ In effect, counsel for the defendants had urged, and his opponent had conceded, a certain degree of fluidity, whereby the plaintiffs would not physically assert ownership even if victorious. In other words, they would not seek to remove the defendants or preclude their access to the land as the defendants had established farms on the disputed land. Neither would the plaintiffs seek pecuniary damages.

In the early days of Ghanaian postcolonial statehood, Justice William van Lare delivered judgment on 24 May 1957, and found in favour of the plaintiffs. The deciding factor was the nexus created by Norton-Jones’ testimony between the Karte des Sechsherrenstokes and the approbation of boundaries on this map by the parties when they appeared before the Togo Plateau Forest Reserve Settlement Enquiry in 1931. Van Lare J (as he then was) dismissed claims that all references to a Grüner Map were to the Karte von Togo. He rejected Dornya’s evidence in favour of Norton Jones’, describing the former as giving evidence ‘from slippery memory of events of his personal knowledge when he was a child of 9 years.’⁵⁴ Overall, this trial was unremarkable. All the parties had opportunities to prosecute their cases and to obtain witnesses and evidence. All the parties had the benefit of experienced counsel. The resulting judgment was clearly laid out with reasons.

Less than a week later, the Alavanyo appealed to the Court of Appeal. Their third ground of appeal was that ‘… the alleged Gruner boundary of 1913 being hypothetical and unsurveyed, the learned judge was wrong in accepting it as a correct and accurate boundary between the parties.’⁵⁵ The sixth ground of appeal was that ‘because the Grüner boundary of 1905 represents the correct boundary between the parties, the learned trial judge should have accepted the same as valid.’⁵⁶ The Alavanyo retained Edward Akufo-Addo, a senior member of the bar, as appellate counsel. This appeal was dismissed by a three-member panel of the Court of Appeal presided by Granville-Sharp JA on 8 June 1959. Dismissing the Karte von Togo as a Grüner map defining respective communal boundaries, the court affirmed the trial judgment and noted as follows:

Having found as a fact and as we have pointed out there is ample evidence to support the finding that it was the 1913 plan that the Defendants agreed in the 1931 Enquiry as forming the boundaries in question, we agree with the learned trial judge that the Defendants are estopped per rem judicatam by the judgment in that Enquiry from raising again the question of their boundaries.⁵⁷

The Nkonya victories did not translate into a change in the status quo because the farmers who drew the title from Alavanyo refused to recognise the title of their Nkonya landlords. In November 1961, the Nkonya issued writs against the Alavanyo and their tenants at the High Court.⁵⁸ Once again, the Alavanyo strategy was to undermine the Karte des Sechsherrenstokes. This was unsuccessful and as Justice George McVane Francois stated on 11 December 1970 when he delivered judgment, ‘the impression one is left with is a strenuous bid by the defendants the Alavanyos to discredit once more the Grüner plan of 1913. I regret this third throw of the dice cannot yield the desired bonanza.’⁵⁹ Francois J (as he then was) had the benefit of an important piece of evidence. At the early stages of the trial, an order had been made for a physical mapping of the Grüner 1913 plan onto the land and this had been done by a licenced surveyor to facilitate the re-erection of pillars to confirm the accuracy of the Grüner boundary demarcations. The surveyor had concluded that the natural features on the Karte des Sechsherrenstokes accorded with the reality on the ground. The judge said ‘a cursory inspection of the surveyor’s plan would show that the defendants’ suggestions could hardly be tenable.’⁶⁰ The surveyor’s plan and his testimony, which had been incorporated into the record by consent of the parties, put the issue of the boundary lines ‘beyond the periphery of dispute.’⁶¹ The judge had harsh words for the Alavanyo side:

The Plaintiffs secured title in the High Court judgment of van Lare J. The resistance of the Defendants thereafter was a defiance of the Plaintiffs and a challenge to their title. The Defendants’ refusal to attorn tenancy and their several acts of brigandism resulting in the death of one farmer of the Plaintiffs’ clan is a matter for serious consideration.⁶²

The judge, however, noted that,

other matters have an equal claim to consideration. Not the least is that of ensuring amity between contiguous neighbours…. When the cleavage as in this case takes a tribal hue, it is the duty of the court to minimise as far as is legally possible any trial effects and procure the much-desired homogeneity that the country cries for.⁶³

The Alavanyo appealed against Francois’ judgment. They argued that the plaintiffs, having abandoned their reliefs for perpetual injunction and recovery of possession in the trial before van Lare J in the 1950’s, Francois should not have entertained a suit in which they sought to engage these reliefs as this would offend against the res judicata principle (a legal principle established to prevent a multiplicity of suits and prevent a party from being unduly vexed). The Alavanyo also disputed the accuracy of the land survey. This appeal was determined on 4 December 1975 by a three-member panel, Amissah JA presiding. The court in Foli and Others v Agya-Atta and Others⁶⁴ sided with the Nkonya, saying that although they abandoned those reliefs in the first trial, it could not be said that their right to pursue said reliefs was extinguished. Furthermore, once some of the Alavanyo tenants refused to recognise the title of their Nkonya landlords, a fresh cause of action accrued. What Amissah said to sign off on his judgment was, however, instructive:

The dispute between the parties has been prolonged and marked by violent incidents. Francois J was generous enough to allow the Defendants time within which to come to terms with the Plaintiff. I will endorse this approach. I would however like to add that the intransigence of the Defendants could be partly due to what on the record seem to be somewhat harsh terms demanded by the Plaintiffs of others as a condition for agreeing to their continuation on the land. The plaintiffs will be well-advised to consider whether these terms are justified or fair in the present day and age.⁶⁵

The final court decision relating to the conflict was The Republic v Stool Lands Boundaries Settlement Commission: Ex Parte Agya-Atta. This suit was initiated in the High Court by the Nkonya following a decision made by the Stool Lands Boundaries Settlement Commission in 1980 requiring a demarcation of the land in dispute. The Alavanyo had petitioned the commission, an administrative tribunal, to determine some of the boundaries between the Alavanyo and Nkonya Stools. The Alavanyo had expended their judicial appellate options when the Court of Appeal (the highest court of the land at the time) decided Foli v Agya-Atta. Taking the Stool Lands Boundaries Settlement Commission route was, therefore, a means to re-litigate the matter and the Nkonya pressed this fact. Although the commission found in favour of the argument made by the Nkonya, it nonetheless ordered a physical demarcation of the boundaries. The Nkonya, therefore, went to the High Court to quash the order, realising the tactical advantage that it gave the Alavanyo, who, in essence, would have succeeded in re-litigating the matter by other means despite being bound by previous court decisions. Justice Cecelia Koranteng-Addow found in favour of the Nkonya, noting:

The Court of Appeal is a superior court and its judgments in these cases have not been discharged, therefore they are of full force and validity. A court of inferior jurisdiction cannot pronounce against its validity … The learned Commissioner after he ruled that the matter was res judicata, proceeded and ordered physical demarcation of the boundaries on the grounds that he found variation in the plan made by the surveyor whose demarcation the High Court had accepted and which the Court of Appeal had affirmed. I think that after the learned Commissioner had ruled that the matter was res judicata, he became functus officio and could not make any order which obviously contradicts the judgments of the Superior Court … It was made in excess of jurisdiction and certiorari will lie to quash it.⁶⁶

Therefore, as the Nkonya have argued, ‘the decision of the Court of Appeal has not been disturbed by any other courts.’⁶⁷ This legal finality notwithstanding, the conflict continues, often spilling out of the disputed farmlands and forests into townships, sometimes far from the disputed area, contrived as rationalisation for unrelated parochial objectives by spoilers⁶⁸ or conflict opportunists.⁶⁹ It has survived sixteen postcolonial political administrations, nine of them following Ex Parte Agya-Atta. Despite the divergent positions the parties hold, they agree that the conflict has resulted in small arms proliferation, loss of lives, and disruption of economic development.⁷⁰

5 Analysis and Discussion

The copious references to court proceedings in the preceding section illustrate that the grievances between the Nkonya and Alavanyo have been comprehensively aired within the Ghanaian judicial system. The courts have been decisive on the matter. A widely quoted letter that Togbega Tsedze Atakora VII, paramount chief of Alavanyo, published in the Ghanaian Times in 1997⁷¹ did not imply that his side had won three court victories against the Nkonya (as interpreted by some of the literature) but rather that Grüner maps had been recognised as possessing frailties in three decisions.⁷² For clarity, we reproduce below the dictum of Justice Francois (who had decided Foli in favour of the Nkonya based on the Grüner Karte des Sechsherrenstokes in 1970 and was now a Justice of the Supreme Court) when he wrote the unanimous Court of Appeal decision in Akoto II v Kavege regarding a Grüner map on 25 April, 1985:

The courts of this country have not given the Grunner plan unreserved approval. As the learned judge rightly stated, Kponuglo v Kodadja (1933) 2 WACA 24 held that the Gruner map ‘only enjoys a presumption of correctness which may be rebutted by other evidence.’ That Privy Council judgment also held that ‘it would not be safe to draw an inference from it regarding the tribal boundaries now in dispute.’ This condemnation stemmed from the map’s inaccuracies. The map was rejected as unreliable also in Akpandja v Egblomesse (1939) 5 WACA 10.⁷³

Grüner himself testified in respect of his maps that ‘corrections have to be made from time to time.’⁷⁴ However, what Francois JSC stated was not a total disqualification of all Grüner maps but rather, a qualification of the weight to be placed on them. He meant that a map, without more, was insufficient to tip the balance of proof. However, van Lare J (as he then was), in Anane, relied on the Grüner map as well as other corroborating evidence. In Agya-Atta, Francois J (as he then was) did the same. The dictum in Akoto II is reflective of the conduct of all the Nkonya-Alavanyo cases. If the two cases referenced in Akoto II were of relevance to the Alavanyo side, it is unusual that they did not attempt to leverage them in their cases against the Nkonya. In that vein, it appears that a letter written in August 1996 by Atakora VII to the Mireku Committee (set up by the government to mediate between the parties in 1995) protesting its interpretation of the relevant case law conflated different Grüner maps.⁷⁵ As well, the chief interprets a comment purportedly made by the committee in an interim report in 1995 about its inability to overturn judicial decisions as acknowledgement of ‘the inaccuracies in the 1913 Grüner Map.’⁷⁶ This conflicts with the committee’s recommendation in its final report that ‘the 1913 Grunner Map be translated on the ground’ to indicate ‘without an iota of doubt the traditional boundaries accepted by the courts.’⁷⁷ In any event, what the literature, popular and academic, fails to account for is that following its interim report, the committee, bemoaning ‘four deaths’ consequent to the conflict at the time, had clarified that:

The legal counsel we had was that to go by our proposal was tantamount to re-opening the boundary dispute which the courts had already given judgment based upon Dr Gruner’s demarcation map of 1913. It was clear from this legal advice that the committee’s proposal of the two parties cutting demarcating paths would compound and confuse the already explosive impasse between the two traditional areas because we are not legally competent to set aside the judicial decisions that by the records tendered to us at the hearing appears to have been exhausted.⁷⁸

The Alavanyo leadership was not pleased, in part because due to sentiments expressed by committee members during hearings, they had expectations that this would be an appellate forum to either litigate what they believed were weaknesses in the relevant jurisprudence or chart a course outside the boundaries set by the court decisions.⁷⁹

Our foregoing analysis highlights the legal source of the sense of injustice harboured by the Alavanyo as it will appear that the Nkonya have prevailed in court due to technicalities and judicial discursive inconsistency. As well, Francois JSC could have distinguished Akoto II (and cases in which a Grüner Map had been rejected by the courts) from the Nkonya-Alavanyo cases or cases in which a Grüner plan had been affirmed. His dictum in Akoto II integrated only the Grüner-skeptic decisions, and standing alone, gives the impression that Ghanaian jurisprudence has exclusively rejected the Grüner plan. Thus, instead of a homogenous discourse of justice, the judicial process has produced a polysemic discourse of both justice and injustice that, in turn, is harnessed in the service of partisan discourses.

Even if polysemic, the courts have produced a juridical discourse on the Nkonya-Alavanyo issue. But is this the only discourse? Foucault problematises a contestation of discourses in his theories on penal regimes⁸⁰ and power/knowledge relations.⁸¹ Power privileges certain ‘knowledges’ in the context of a hegemonic contestation between ‘erudite’ and ‘disqualified’ knowledges.⁸² Justice is open to definition by different discourses. Which discourse is deemed meaningful or worthy of approbation is itself a corollary of power relations. We note Laclau and Mouffe’s conceptualisation of discourse articulation.⁸³ It provokes the question: what discourses are in existence and what are their nodal or mobilising points? What is included or excluded in how the reality around an issue is constructed as discourse or spoken about? We argue that apart from the juridical discourse, three other discourses are at play. One is governmental discourse emanating from State authorities, the second is civil society discourse (from NGO and academic activities etc.) and the third is ‘partisan’ discourse emanating from the lived realities of the Nkonya and Alavanyo.

For the average Nkonya, the Nkonya have won all the court cases and thus are legitimate owners of the land in dispute. As an interviewee puts it:

There were series of court actions until 1975 when the final settlement came in. At that time, the boundary demarcated by the Germans had been accepted by all the six communities and all of us were asked to stick to the Grüner boundary. Then, the ownership of the land was determined that the land belonged to the Nkonya citizens. There was an injunction order also that no citizen of Alavanyo should cross the boundary into the land again. So the paramount chief of Alavanyo at the time Togbe Anku Atakora also accepted and he was even given land to farm on. But in 1983, he was overthrown by the youth who argued they were going to forcefully take over the land.⁸⁴

Another Nkonya interviewee said:

We have suffered from the hands of the Alavanyos for a very long time. The truth of the matter is that they openly defy court orders, enter our lands, cut down our timber, destroy our food crops and cocoa and yet walk freely afterward.⁸⁵

Thus, to the Nkonya, ‘legal victory’ has not translated into ‘social victory’ (‘the right to own and use the land in dispute’).⁸⁶ The Alavanyo, on the other hand, reject the judicial discursive closure privileged by the Nkonya, framing the judicial outcomes as a miscarriage of justice. Consequently, they reject the Karte des Sechsherrenstokes and/or implications of rulings based on it and frame the rejection around the notion of injustice. The statements below underscore the Alavanyo sentiment:

But you can refer to so many cases even to the Privy Council that one party wanted to use the Gruner map and they were told that because of its deficiency, it cannot be accepted … So many of them … So we ask where is the justice?⁸⁷

Some Nkonya-Tayi people took some people from Alavanyo to court. The case was decided in their favour. I’m stressing this point: they took some individuals of Alavanyo Kpeme to court and not the entire Alavanyo to court. Today the Nkonya people want to use that judgment to say that all Alavanyo lands belong to them.⁸⁸

While this is not an accurate reflection of the litigation, it mirrors comments reportedly made by Atakora VII challenging those who suggest that the Nkonya and Alavanyo stools have litigated over any matter in court to come forward with evidence of the litigation.⁸⁹ This elides the fact that both traditional authorities have indeed been parties to the boundary litigation (as we illustrate through the historical record). For the Alavanyo, the judgments, therefore, constitute an existential threat to nationhood. The reality constructed by the partisan narrative is that the Nkonya are using the decisions to claim all Alavanyo lands rather than some acres. This is a key to understanding the conflict. As such, we argue that the juridical discourse which was supposed to settle the conflict could not yield the preferred dividend because the court decisions have been framed in (in)justice terms – both in the distributive and procedural sense – within partisan discourses.

For the Nkonya, if the Alavanyo have not complied with the existing court rulings, it suggests that there are extrajudicial options available which they seek to leverage.⁹⁰ They raise the question why the State has failed to ensure compliance with court judgments, rather than ad hoc law enforcement deployments in response to outbreaks of conflict.⁹¹ A classic example is the arrest and subsequent arraignment before court of some 40 people including both paramount chiefs of Nkonya and Alavanyo following a clash in 1983.⁹² The Nkonya have, therefore, been leery of mediation efforts, viewing them as vehicles for upending the court decisions.⁹³

State authorities appear to have taken the position that the dynamics favour diplomatic solutions such as mediation, rather than enforcement of court decisions. Governmental discourses have thus been ambivalent with respect to the judicial decisions. Yet, when there is political will, it is not unusual for the Ghanaian State to intervene through law enforcement to ensure that parties in communal conflicts adhere to judicial or quasi-judicial decisions in the interests of public safety.⁹⁴ In contemporary times, State intervention in the Nkonya-Alavanyo conflict has been through the establishment of mediation committees such as the GK Acquah Committee of 1992, SK Mireku Committee of 1995, and the Nkonya-Alavanyo Conflict Mediation Committee of 2004. State intervention has also been through law enforcement action against criminal acts, though increasingly, this aspect of enforcement has taken the guise of militarisation. In January 2015, then Vice President Kwesi Amissah-Arthur personally headed a mediation effort, the highest-ranking State official to be directly involved in mediating between the two parties.⁹⁵ Parliament has also been engaged in mediation efforts.⁹⁶ Sometimes, the mediation efforts have been in concert with civil society, such as the clergy and NGO s (e.g. the Nkonya-Alavanyo Conflict Mediation Committee of 2004), and increasingly this is coordinated by the statutory Volta Regional Peace Council.⁹⁷

The discursive nodal points privileged have been peace, criminal law, and militarisation⁹⁸ and the court decisions have been treated with scepticism. For example, when, at the request of the Alavanyo Youth Association,⁹⁹ the office of the Head of State struck a committee under Justice Acquah in November 1992 to resolve the conflict, its terms of reference included ascertaining the authenticity of the Grüner map and whether there existed more credible alternative maps.¹⁰⁰ The import of these terms of reference have eluded previous scholars.¹⁰¹ Given the fact that the validity of the Grüner Map and the actual boundary lines had been determined by courts of competent jurisdiction, this was a thinly veiled extrajudicial act. Characteristic of the military dictatorship at the time,¹⁰² this was an ultra vires disregard for the rule of separation of powers, and potentially, constituted contempt of court to the extent that it undermined and attenuated judicial authority. Indeed, Koranteng-Addow J in Ex Parte Agya-Atta had prevented the Stool Lands Boundaries Settlement Commission from undertaking a similar though relatively less problematic expedition. As the chairperson of the Acquah Committee was a judge, it is no surprise that the committee could not deliver on what was potentially an unlawful mandate.¹⁰³ This, however, suggests State reticence to enforce court decisions and a desire to find what it considers alternatives that would be less provocative to the Alavanyo. As such, governmental articulations barely mention the role of the State in the enforcement of the judgments.

Similarly, in 2015, the State announced plans to compulsorily acquire the disputed land for use as a military training base,¹⁰⁴ a policy reiterated by a different administration in 2017.¹⁰⁵ This is in line with one of the Mireku Committee’s recommendations and marks an increasing militarisation of State intervention in the conflict. It is not surprising that traditional leaders of both communities expressed reservations about the proposed compulsory acquisition, since both sides still lay claim to the same land.¹⁰⁶ When the matter is discussed in Parliament, it is a blamestorming between respective political representatives of both sides, ending with platitudes for peace and commitments to mediation, with no mention of the court decisions.¹⁰⁷ When Vice President Amissah-Arthur addressed the parties at Kpandu in January 2015, he was flanked by a phalanx of senior security officials and armed troops in tactical fighting vehicles. He stressed the dominance of State power and cautioned parties against plans of prevailing through violence,¹⁰⁸ but did not exhort adherence to court decisions.

Militarisation of the conflict is, however, potentially inimical to sustainable peace and local development, and is disruptive to the social ecosystem. For example, the share of development funds earmarked for local administrative bodies by central government between 2011–2015 was applied to supporting the military detachment deployed to the area, rather than socio-economic development projects.¹⁰⁹ Militarisation also obfuscates conflict root causes and attenuates discursive space for resolution.¹¹⁰ As well, it stokes the discourses of violence and small arms proliferation characterising the conflict.¹¹¹ As the military is not primarily a law enforcement agency, involvement in these internal security operations also ‘leads to blurred responsibilities, instances of abuse and the excessive use of force’ and a continuous militarisation of civilian State functions.¹¹² And to the extent that militarisation is often linked to impunity,¹¹³ it is not unusual for militarised security elements to become embedded in the illegal economic activities operated by conflict entrepreneurs such as cannabis plantations, logging and small-scale gold mining.¹¹⁴ For all of the foregoing reasons, military involvement in Ghanaian internal security operations has been criticised.¹¹⁵

What about civil society discourses? As has been mentioned, we include in this category recommendations made by researchers, all of which privilege the peace discursive nodal point. As well, Yakohene¹¹⁶ chronicles the work of the West Africa Network for Peacebuilding within the construct of the Nkonya-Alavanyo Conflict Mediation Committee and its Joint Consultative Committee inaugurated in 2004 as a government initiative to harness the capabilities of the clergy and NGO s. Klutsey¹¹⁷ narrates his grassroots, shoestring-budget mediation efforts. For all these efforts, peace and amicable settlement appear to be the discursive nodal points. As Klutsey put it, ‘peace should take a priority over enforcement of judgments.’¹¹⁸ However, the civil society articulation of this nodal point is not a cavalier dismissal of the importance of court decisions, contrary to what some Nkonyas might suspect.¹¹⁹ Rather, it is a pragmatic position overdetermined by the conjuncture of government policy. Klutsey explains that ‘court judgments are only useful if the State has the capacity to enforce them for or against parties.’¹²⁰ Klutsey’s observations about the weakness of State law enforcement power are illustrated by a September 2020 incident during which elements seeking the secession of parts of the Volta Region seized control of police stations, vehicles and weapons, governmental facilities, and highways in the region.¹²¹

The ultimate guarantor of juridical discourse is the political State as holder of the monopoly over legitimate use of force. Outside the courtroom juridical discourse loses its power without the support of the political State. To be sure, the State has deployed law enforcement to the area to protect lives and property, but not to enforce the court judgments. The governmental, civil society, and partisan discourses are sustained by respective power dynamics. Realpolitik and expediency sustain the governmental and civil society discourses. There is also a political calculus to be made. As recorded by Yakohene,¹²² the 2004–2006 mediation attempt revealed a political element in which historically, political partisan elements had leveraged the conflict for votes. As the Nkonya were a minority in the Volta Region, it is conceivable that their interests could be marginalised. Community loyalty and the activities of ‘spoilers,’¹²³ or elements that stoke the conflict for material gain, sustain partisan discourse. A Daily Graphic story in April 1983, for example, reports the stabbing of the paramount chief of Alavanyo by his own subjects for preventing them from attacking the Nkonya.¹²⁴ The chief petitioned the State over his assault and subsequent overthrow to no avail.¹²⁵ Thus, like governmental discourse, partisan discourse admits of expediency as it energises vigilante extrajudicial action as self-help.¹²⁶

6 Conclusion and Suggestions

As of March 2023, Nkonya and Alavanyo remain under a State-imposed dusk- to-dawn curfew, one of the public safety strategies that has become a perennial staple as a result of the century-old boundary conflict between the two communities.¹²⁷ In this paper, we argue that judicial attempts at resolving the Nkonya-Alavanyo conflict have been unsuccessful because the resultant juridical discourse is polysemic, and thus, to the extent that the non-negotiable value of justice is a factor in the conflict, is capable of divergent articulations. In this regard, court decisions have motivated partisan discourses differently. Second, the juridical discourse competes with governmental, civil society, and partisan articulations that do not privilege judicial decisions.

Accordingly, we suggest that: 1. Since they are not judicial appellate bodies, State and civil society conflict resolution bodies must avoid casting aspersions on settled court judgments as such aspersions erode confidence in the judiciary and rule of law; 2. Governments must act proactively in communal boundary disputes by promoting resolution before litigation. However, where there is litigation, the State must ensure adherence to court decisions. In this regard, State and civil society conflict resolution strategies must be aligned with existing court judgments to avoid subverting the rule of law; and 3. Informed by Foucault’s conceptualisation of archival records as ‘systems of discursivity,’¹²⁸ it has been argued that ‘[a]rchives and other repositories of documentary information … shape the production of knowledge, and therefore determine what truths or histories it is possible to reconstruct and know.’¹²⁹ Since access to information creates transparency, the State must make all documentation relevant to the conflict available, not only to clear ambiguities but also to foster collective memory as well as policy coherence and continuity. Where courts have decided on communal conflicts, government and civil society efforts could include public communication strategies that would promote popular understanding of rule of law considerations as well as court processes and judgments, to pre-empt the dominance of inaccurate partisan narratives that serve to stoke conflicts.