Legal empowerment for local resource control

its roots in the colonial legal system, which (with the exception of settler
colonies) aimed not to create strong local resource rights but rather to
establish an effective government apparatus for the appropriation and
exploitation of natural resources.
In addition, the past 15 years have witnessed the emergence of legislation to
attract foreign investment. While in some cases this legislation applies to
foreign investment alone (e.g. under Namibia’s Foreign Investment Act 1990),
in others it formally applies to both nationals and non-nationals. 33 In these
cases, however, legislation may apply to investment above a minimum size –
which excludes the investment in time, resources and effort of local resource
users. 34 More generally, even where legislation applies to both nationals and
non-nationals, it tends to be conceived for the needs of foreign investment.
Besides granting tax breaks and other financial incentives, investment
legislation may specifically protect investors’ property rights. This includes the
reception of international norms on expropriation, including the public
purpose, non-discrimination and compensation requirements; 35 provisions
enabling the government to grant additional safeguards through contracts
with foreign investors; 36 and use of international arbitration as the primary
forum to settle investment disputes with foreign (as opposed to domestic)
investors. 37
As for resource rights in particular, several countries have removed or eased
restrictions on foreign investors’ access to land ownership 38 . Some countries
liberalisation have brought about law reforms introducing or strengthening protection of private property rights in
many countries – e.g. Burkina Faso (Réorganisation Agraire et Foncière, as revised in 1991 and 1996), Republic of
Congo (1992 Constitution and 1997 Fundamental Act) and Guinea (1992 Land Code). However, in most African
countries, including those where private property is recognised, the state remains the key player in land relations.
33. E.g. under the Nigerian Investment Promotion Commission Act; Senegal’s Investment Code 2004; Mali’s
Investment Code 1991, as amended in 2005; Cameroon’s Investment Charter 2002, as amended in 2004; and
Mozambique’s Investment Act 1993. Application to both nationals and non-nationals avoids problems in
establishing who is entitled to the legal protection – particularly given that foreign investors usually operate
through a local subsidiary incorporated in the host state.
34. E.g. 300,000 USD for foreign investors and 100,000 for domestic ones, under article 2 of the Tanzania
Investment Act.
35. For instance, under the Nigerian Investment Promotion Act 1995. While the Nigerian Constitution requires
payment of “prompt” compensation for takings without setting quantum standards (article 44), the Act goes
beyond that and requires that investors be paid “fair and adequate” compensation (article 25).
36. Under the 1999 Petroleum Code of Cameroon, for instance, petroleum contracts “may provide for special
regimes with regards to […] the stabilisation of economic and tax conditions” (article 114).
37. E.g. article 12 of Senegal’s Investment Code and article 25 of Mozambique’s Investment Act.
38. While outright bans on foreign land ownership still exist in some African countries (e.g. under the 1998
Land Law of Cote d’Ivoire), there is a trend towards the removal or easing of these restrictions. In some
countries, prior government authorisation or simple notification to the government are required for the
acquisition of foreign land ownership (Hodgson et al, 1999).
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