Legal empowerment for local resource control

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provisions embodied in the constitution of many countries, 6 to Burkina Faso’s
Land Reform Act challenging the power of customary chiefs. 7 The success of
these legislative interventions has varied considerably from context to context,
depending on a range of socio-economic and political factors (on which see
below, section 2.3.2). Success is also linked to the extent of the power
asymmetries that these legislative interventions seek to redress – the greater
the asymmetries, the more difficult the success.
Legislative efforts aimed at addressing power asymmetries are more likely to
produce results when accompanied by social mobilisation to exert pressure on
interest groups resisting law implementation; and by vibrant civil society
organisations providing legal services to the disadvantaged groups that stand
to benefit from implementation. These services range from legal literacy
training to legal assistance down to public interest litigation, 8 and help
disadvantaged groups better to make use of the new opportunities offered by
the law. 9
Linkages between law and power are therefore bi-directional, with law both
reflecting and shaping power relations. For instance, writing on the resurgence
of customary chiefs in South Africa, Oomen (2005) describes how negotiations
shaped by power relations inform the work of legal institutions, on the one
hand; and how legal rules (together with other sources of authority) are
invoked in those negotiations and affect their outcome, on the other.
These bi-directional linkages are reflected in the classification developed by
Tuori (1997), which provides a useful conceptual framework for this report. It
isolates three interlinked aspects of the relationship between law and power:
Power on the law: how power relations in society (from conscious political
power to the cognitive, linguistic and ethical structures internalised by
members of society) affect the content and implementation of the law;
6. See e.g. article 5(I) of the Constitution of Brazil; article 1(3) of the Constitution of Burkina Faso; articles
14 and 15(1) of the Constitution of India; article 3(1) of the Constitution of Italy; article 4 of the
Constitution of Mexico; article II(14) of the Constitution of the Philippines; section 9 of the Constitution of
South Africa.
7. Réorganisation agraire and foncière of 1984, last revised in 1996.
8. As for public interest litigation in Africa, see for instance the case ACODE v. Attorney General in Uganda
and, at the regional level, the case SERAC v. Nigeria, brought before the African Commission of Human and
Peoples’ Rights.
9. On the important role of legal services and of civil society organisations that provide them, see Golub
(2005).