Legal empowerment for local resource control

56
deliberately left open, both because the approach followed focuses on
relations between the community and the outside world rather than on
intra-community relations; and because the same legal concept needs to fit
very different local contexts (Tanner, 2002).
The Act defines a community as “a grouping of families and individuals,
living in a circumscribed territorial area at the level of a locality [the lowest
official unit local government in Mozambique] or below, which has as its
objective the safeguarding of common interest through the protection of
areas of habitation, agricultural areas, whether cultivated or in fallow,
forests, sites of socio-cultural importance, grazing lands, water sources and
areas for expansion” (article 1(1) of the Land Act, as translated in FAO, 2002).
As Tanner (2002) notes, this definition makes no reference to kinship or
other ties between community members, nor to size of the communities or
of their landholdings, nor to who represents the community. As it stands
now, the definition may cover any grouping of people living together and
claiming collective rights over a given land area. In practice, a Technical
Annex issued under the 1997 Land Act provides for case-by-case processes of
community self-identification, enabling communities themselves to identify
their lands and to define the rules governing their internal organisation
(including through the application of customary law). The size of
communities and of their landholdings varies substantially – from some
600 people and 3,000 hectares in Mucombwe to over 20,000 people and
200,000 hectares in Mongoma (Norfolk, 2004).
In Ghana, the legal concept of “community” is shaped by customary law,
which is part of Ghanaian law (article 11 of the Constitution). Under
customary law, communities are corporate bodies (“stools”, “skins”, etc.)
headed by a chief or family head. Chiefs and family heads hold resource
rights in trust for the members of their community (article 36(8) of the
Constitution). In practice, they enjoy considerable latitude in the exercise of
their natural resource responsibilities.
In other countries, legislation refers to communities as private entities
entrusted with resource rights but does not define what a community is. In
Mali, the Land Code 2000, as amended, merely “confirms” customary rights
held “individually or collectively”, without developing on the nature of
collective landholders.