Custodial Resource Holding as an Expression of Constitutional and Economic Intent in Africa

Abstract

This chapter scrutinizes how accountability for mineral resource exploitation is envisioned and managed in the constitutions of African countries. In resource-dependent states, economic policies and constitutional commitments to transformation and social justice combine to constitute a state’s resource-holding model. Expressed in its legal framework, a state’s resource-holding model will require particular types of governance responses to give effect to the ideologies underlying its economic choices. This chapter undertakes a broad survey of the language of resource sovereignty and resource governance, as expressed in the constitutions and legal frameworks of sub-Saharan African states. By enhancing observable trends with highlights of the political history of selected countries, the chapter reveals a tendency for post-independence states to career between market-economy and command-economy policies, to the detriment of states’ extractive sectors and the integrity of their resource sovereignty. Such policy careening corrupts and weakens resource sovereignty. The by-products of such systemic and ideological failures are poverty, inequality, underdevelopment, and lack of productivity. These are constraints on Africa’s future prosperity. Using experiences from inter alia South Africa, Namibia, Tanzania, Botswana, and Zambia as examples, the chapter models a response that avoids the pitfalls of market-economy or command-economy-driven policies in the extractives sector. It shows that custodial resource holding may be a latecomer to the regulatory context, but that it has potential to restore resource sovereignty as an expression of the state’s interest in and responsibility to its people. This is demonstrated with reference to custodial resource holding in law reforms across Africa.