Legal empowerment for local resource control

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When conflicts between local and state norms arise, the legal system
assisted by the more effective sanctions apparatus and capacity to
manipulate rules and co-opt elites in the competing system(s) tends to
prevail. In most cases, it is the national legal system that tends to overpower
local tenure systems.
Differences in the capacity to claim legal entitlements
Enjoyment of resource rights is shaped not only by the substantive protection
and procedural remedies offered by the law (whether international, national
or local/“customary”), but also by the capacity of right holders to claim what
they are entitled to (“capacity to claim”). This capacity is in turn affected by
factors that tend to reinforce the imbalance between the legal protection
offered to foreign investment and that available to local resource users (see
Table 5 below). Such factors are linked to the sources of power asymmetries
analysed above (Table 3), including differences in skills, economic resources
and political influence.
For instance, foreign investors and local resource users tend to have very
different degrees of legal literacy/awareness, capacity to mobilise legal
expertise and access to courts. Legal awareness is notoriously limited in rural
Africa, where a substantial part of the population is illiterate and does not
speak the official language used by the law. Access to courts tends to be
hindered by economic, geographical, linguistic and cultural barriers. This is
even more so as legal aid programmes in much of Africa are under-funded and
TABLE 5. FACTORS AFFECTING THE “CAPACITY TO CLAIM”
Human
Economic
Political
Geographic
Cultural
Procedural
- Literacy and ability to speak the official language;
- Legal awareness;
- Self-confidence.
- Capacity to mobilise good-quality legal expertise/assistance.
- Enjoyment of civil and political rights (e.g. freedom of assembly, association and expression)
and capacity to use them to exert pressure on law and decision-makers;
- Internal cohesion/divisions.
- Distance of courts, and transport/transaction costs to reach them.
- Internalised beliefs concerning the “appropriateness” of using legal processes to defend
one's rights;
- Deference to authority flowing from history/tradition.
- The degree of complexity and level of cost of judicial, administrative and other procedures
to claim/enforce legal entitlements.