Legal empowerment for local resource control

prohibits “arbitrary” deprivations of property, and thereby implicitly
requires payment of compensation for takings; but is silent on the standards
applicable to compensation (article 17). The ACHPR merely states that the
right to property can only be encroached upon in the public interest and
according to the law – but contains no provisions on the duty to pay
compensation nor on the standard of compensation (article 14).
In many countries, national constitutions and laws embody valuation
standards (e.g. “market value” under Tanzania's Village Land Act
Regulations, sections 9-10) and compensation standards (such as “fair” and
“equitable” compensation under Mali’s Mining Code and Land Code; “full
and fair” compensation under Tanzania's Village Land Act, section 18(1)(i)).
In some cases, legislation may provide more specific guidance. Cameroon’s
Law 85-09 of 1985 requires that compensation be related to the “direct,
immediate and verifiable damage caused by the dispossession”, including
land, crops, buildings and “any other type of development” (section 7). In
Ghana, the Land (Statutory Wayleaves) Act requires that, if use through
“wayleave” leads to benefits for the landholders, this is to be taken into
account in determining compensation.
These standards of compensation raise two practical issues. First, legal
standards are bound to be crystallised in rather vague formulae (e.g. “fair”
or “equitable” compensation). In most cases, what these formulae mean in
practice is not immediately evident. A key issue is whether compensation
must be equal to the market value of the property taken, or whether it may
be less than that. But apart from these basic choices of legal policy, much
depends on the institutions and processes for determining how much an
affected right holder is to receive.
Second, even the more concrete benchmarks that are sometimes attached
to those formulae may be problematic in practice – particularly in contexts
characterised by weak government capacity to update them and to collect
data that is important for valuation purposes. For instance, compensation
rates for loss of crops in Cameroon are embodied in a decree dating back to
1981, and do not reflect current market values (Egbe, 2001b). Evidence from
Ghana suggests that in some cases where government officials have
attempted to establish “full market value” as a benchmark for
compensation, values may be artificially low because few buyers and sellers
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