Legal empowerment for local resource control

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In the area of takings, grievance procedures are particularly important. This
is because the government plays two roles. On the one hand, it decides on
takings and foots the compensation bill (although in some jurisdictions
compensation is determined by the government but paid by the investor);
on the other, through the valuation process, it determines how much that
bill is. This conflict of interest is further exacerbated where the state holds
an equity participation in the investment project, and thus has a vested
interest in the profitability of such project.
Effective judicial review processes are therefore key to prevent and remedy
abuse. This includes complaints on the decision to expropriate; on the
amount of compensation and/or on the quality of in-kind compensation;
on who should be entitled to the compensation; on delays in the payment
of compensation; and on other aspects.
Legislation usually does enable affected persons to request courts to review
government action. Legal restrictions may exist, however. In Cameroon,
disputes on the amount of compensation can be brought before the
administration first, and, if the complainant is not satisfied, before courts
(section 12 of Law 85-09 of 1985). However, disputes can only concern the
amount of compensation – not the validity of the expropriation itself; and
complaints on the amount cannot halt the expropriation process (section
14 of Law 85-09 of 1985). Judicial review is also constrained by extra-legal
factors, as access to courts remains very problematic in much of rural
Africa. This is due to lack of resources and legal literacy, to economic,
geographical and linguistic inaccessibility of courts, to lack of trust in the
judiciary and in the legal system, and other factors.
If World Bank funding is involved, affected persons may request the
establishment of an “Inspection Panel” to assess complaints and propose
recommendations. While not a judicial process, this can lead to change in
project design and implementation due to the influence that the World
Bank may have. Access to this procedure for local resource users in rural
Africa is still problematic, however, although NGOs have filed petitions on
behalf of affected persons (e.g. in the Chad-Cameroon pipeline project and
in the Bulyanhulu mining project in Tanzania). Similarly, where the project
involves commercial banks that have signed up to the “Equator Principles”,
these are to provide a “grievance mechanism” to enable affected persons to