Legal empowerment for local resource control

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2.3. TOOLS FOR LEGAL EMPOWERMENT: DEFINING
THE CONCEPT
Recent years have witnessed substantial experimentation with using legal
processes to increase local resource control in Africa. Court litigation,
possibly spearheaded by public interest law firms, is the type of legal
process that tends to immediately spring to the mind of non-lawyers – not
least because it tends to more easily receive the attention of the media.
This is illustrated by the 2006 Botswana case Sesana, Setlhobogwa and
Others v. Attorney General, concerning the relocation of the San from a
game reserve – which featured widely in the press in Botswana and abroad.
In reality, litigation is far from being the main way of using the law as a
means for empowerment. This usually entails engaging with a much
broader set of processes anchored in the legal system – from registering
collective land rights to using legal requirements for public consultation as
a means to express the aspirations of marginalised groups. Also, more than
one-off events such as court litigation, legal empowerment requires
sustained investment in building local capacity better to make use of the
opportunities offered by the law (e.g. through legal training, assistance and
advice); and better to exert pressure on lawmakers for them to expand and
improve those opportunities.
In reviewing this wide-ranging experience, this report uses the concept of
“legal tool”. This brings together within the same conceptual framework
legal arrangements as diverse as community land registration, social
impact assessment and prior informed consent. Taking “tools” as the entry
point for this analysis reflects the acknowledgment that strong but general
statements of principles embodied in the constitution and in other legal
instruments are unlikely to address power asymmetries unless they are
accompanied by practical arrangements that can affect the negotiating
power of different actors.
2.3.1. The concept of legal tool
Tools are “instruments, approaches, schemes, devices and methods” that
“help people get from a problem to a solution” (Vermeulen, 2005). Over the
past few years, work has been done on policy tools (mechanisms for
influencing and/or implementing decision-making on natural resources;