Legal empowerment for local resource control

Resource access under “customary” systems
At the local level, lack of financial resources and of institutional capacity in
government agencies, lack of legal awareness and, often, lack of perceived
legitimacy of official rules and institutions all contribute to limit the
outreach of state regulation in rural areas. On the other hand, “customary”
resource tenure systems are often applied even where they are inconsistent
with legislation, because they tend to be more accessible to rural people.
Such systems claim to draw their legitimacy from “tradition”, as shaped
both by practices over time and by systems of belief. However, they have
been profoundly changed by decades of colonial and post-independence
government interventions, and are continually adapted and reinterpreted
as a result of diverse factors like cultural interactions, population pressures,
socio-economic change and political processes.
While customary systems are extremely diverse, land is usually held by clans
or families on the basis of diverse blends of group to individual rights,
accessed on the basis of group membership and social status, and used
through complex systems of multiple rights. Customary systems tend to
affirm the primacy of the resource rights of locals (the “first occupants”) visà-vis
outsiders. Outsiders must usually negotiate access to resources with
the first occupants or their descendants (e.g., on the “tutorat” in West Africa,
see Chauveau, 2006).
The application of these rules would favour local resource users in their
relations with foreign investors, who would have to come to terms with the
first occupants in order to gain access to resources. In Ghana’s early stages
of colonisation, for instance, mining companies negotiated access to
resources directly with customary chiefs – although this authority was
subsequently centralised by the colonisers (Date-Bah, 1998).
However, in many parts of Africa, chiefs are manipulating customary rules
to claim greater powers, and are transferring resource rights to incoming
investors without the consent and to the detriment of local resource users. 41
In addition, the primacy of locals under customary systems may come into
conflict with the application of national legislation, which tends to be more
geared toward affirming the central role of the state in resource allocation.
41. On attempts to reinterpret customary law to strengthen chiefly powers in Ghana, see Ubink (2007).
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