Forest Access Rights and Legal Complexities in Africa

Abstract

"Experiences from many African countries with regards to community access to forests seem to indicate a complexity that needs systematic scrutiny. In many situations, access rights are defined and controlled by the State through legislations and regulations in forest management plans. However, there is increasing recognition that, in practice, these State rules are contested, renegotiated and reconstructed at the national-local interface. Thus, whiles the State may have <i>de jure </i>control over access to forest resources, <i>de facto</i>, communities have substantial control in daily struggles for access. In spite of this observation, the subject has not been very well investigated and discussed. In particularly, there has not been much effort to gather the empirical experiences of struggles related to forest-access rights across the continent. Whiles recognising that substantial information on the empirical definition and practice of access rights could be available, scholars and professionals in the continent has not fully benefited from this stock of knowledge. There is the need to gather these experiences to inform policy interventions. The present paper proposes the establishment of a panel of experts across the continent to discuss the legal context of access rights, both from theoretical to empirical points of views.

"In the paper, the analytical framework which can be adopted for assessment is the notion of legal pluralism, which can be defined as the coexistence and application of different legal norms in specific situations. Here, the social practice of law is observed, taking a departure that legal norms are broader than the State law. The framework admits other norms and socially accepted practices based on customs, traditions, religion etc that govern and rule the conduct of people in a given setting as also legal. This framework is particularly useful in the African context since customary laws governed access rights to forests in almost all African countries prior to colonial rule and nationalisation of forest assets. Further more, since many African countries are still weak States, in terms of capability to enforce State laws, it is useful to assess how customary and other non-State rules still influence social action and to what extent the State law has been subordinated or otherwise."