Customary Law and Conflict Resolution Among Kenya’s Pastoralist Communities

 Introduction: The Inevitability of Legal Dualism in Africa

Law is the main device used by a state to regulate the affairs of its population in order to facilitate orderly conduct of both the public and private spheres. By historical circumstance or reasons of limited capacity, Africa’s post-colonial states have by design left certain domains of citizens’ behaviour outside the reach of formal law. Similarly, some parts of the country where state presence is minimal, traditional systems are permitted by default to exist side by side with a state run justice system in order to reduce transaction costs. Historically, many African states, including Kenya, permitted the intermediation of customary law in redressing matters of a personal nature, notably marriage and devolution of property upon death while matters criminal remained the exclusive jurisdiction of formal legal systems. This is largely explicated by the fact that imported colonial laws were at such great variance from the norms of African communities that their imposition would lead to more conflict and would further increase the cost of enforcing compliance. Hence, dualism, a hybrid legal space, where more than one legal or quasi-legal regime occupies the same social field, is a key feature of most African legal fields, including in Kenya.

While many legal positivists do not admit it, customary law in Africa has a stand alone basis for its existence beyond merely filling in the gaps left by states’ legal devices. Customary law’s intervention is seen as addressing an area where ordinary criminal or civil sanctions have failed. They become particularly relevant in the African society which while increasingly individualized continues to exhibit a collective impulse. Given the non-atomization of individuals in African states and the fact that belonging to groups is still a salient reality, there must be a place for the deployment of community mechanisms in addressing disputes that transcend the individual and have pervasive impacts on the group. Statutory law has appeared quite incapable of providing redress to matters in the nature of the collective. It is this area of intersection between the group and the state (Adejumobi, 2001) which is mediated by norms of customary law. Rather than appreciate the robustness of customary law in the African context, its place has always been subordinated not only to statutory law but also to the edicts of an amorphous matrix of ‘public policy, health and morality.’ Regrettably, customary norms remain a lesser child of the law, a position that undermines its growth, adaptability and resiliency.

Conflict particularly mass violence has been addressed poorly by statutory law. This is largely because mass violence generates a complex matrix of breaches of criminal, civil law-land and political issues- the sheer scale of consequences always leaves a residual effect which most legal systems cannot adequately address. Moreover, conflicts although capable of being resolved through notions of individual culpability also destroy community cohesion, a domain that written law cannot adequately and immediately confront

In what ways then has customary norms of indigenous communities contributed to conflict resolution in Kenya, an area where statutory norms have registered abysmal failure?

Northern Kenya: Incomplete Statehood

The colonial government instituted the original policy framework segregating the northern rangelands from Kenya proper, creating the Kenya of the South and North. The nomads of northern Kenya were seen to be antithetical to the colonial enterprise because of their geographic location from the centre in Nairobi as well as their livelihoods which clashed with the colonial imperative of settling communities in order to extract value through modern agriculture and taxation. In Northern Kenya the colonial government legalized the use of military muscle and administrative fiat to quell any pastoralist resistance to the Pax Britannica, setting the foundation for the instrumentalization of violence as the ultimate arbiter in the region. Emergency laws passed immediately after independence to quell the pro-Somali militia, Shifta, gave the new African-led government legal carte blanche to combat the shifta insurgency. What began as a legitimate struggle for self-determination quickly degenerated into widespread banditry. The firearms remaining after the rebellion officially ended, and the need to restock depleted herds accounted for high levels of cattle raiding and highway robbery afterwards. North-eastern Province has since then been synonymous with insecurity. Consequently, any constitutional rights of most minority communities in the north were foreclosed for years.

During the 1990s, it became clear that the conventional methods of addressing conflict through the use of either brute force or formal judicial means were no longer capable of containing the north’s intensifying conflicts. The opening up of Northern Kenya’s civic space courtesy of the countervailing forces of democratization that was sweeping the entire country, provided new opportunities for communities to rethink new ways of addressing entrenched inter-tribal/clan conflicts. The answer was to seek resolution located in timeless customary norms of these communities, which although heavily undermined or manipulated during the immediate colonial and post-colonial era (Mamdani, 1996; Joireman, 2008), still remained relevant as the legitimate motif for resolving intractable conflicts. In the case of Northern Kenya, recourse to either pure forms of or  re-imagined customary institutions appears to have been the only choice given the sheer non-existence or total unresponsiveness of state-led dispute resolution mechanisms. Recent studies indicate that formal courts in northern Kenya, are few, bureaucratic and are often seen to dispense a type of justice that is either too long in coming or has retributive rather than reconciliatory impact on the concerned individuals and communities (Tanja Chopra, 2009).

Seeking Pure Customary Justice: The Borana and Gabra Model of Peace

The Borana and Gabra pastoralist peoples of Northern Kenya and Southern Ethiopia engaged in a violent conflict with one another that reached a peak in the atrocities of 2005, even though they are closely linked linguistically, territorially and socially. In what has become known as the Turbi massacre, 100 members of the Gabra community were killed in the morning of July 12, 2005. during this incident attributed to the military wing of the Borana community, hundreds of men armed with an assortment of weapons, ranging from AK-47s and grenades to machetes and spears, descended on the village of Turbi with the aim of slaughtering as many people as possible. Three days after the massacre, with ethnic tensions still running high, the Roman Catholic Bishop of Zica, Luigi Locati, was shot dead in Isiolo, 300 Kilometres away from Turbi.  The escalating disputes grew in an entanglement of legal, political and economic tensions that were local, national and geopolitical. Political leaders hitherto reluctant to engage each other launched a peace campaign, which was unfortunately cut short exactly a year later when a Kenya army plane carrying 6 members of parliament crushed before landing in Marsabit.

            Shocked into action by the painful events of one year, the Gabra and Borana communities launched a peace process under their traditional systems. Peace was finally restored in 2009 after a process that drew on a combination of tradition and innovation. The peace was formally initiated by the customary councils of the Borana and Gabra – the gada and yaa – which sent out messages reminding the people of the ancient laws that relate to peace. Customary law (aada) encompasses religious, judicial and cultural aspects of Borana and Gabra life and is widely respected. The messages of peace travelled from the councils to spiritual leaders, judges and clan leaders (jalaab), and on to men and women, herders, townsfolk, elders and youth. The messages moved from one person to another in the form of daimtu, a conversation whose basic form is to ask “Do we have peace?” to remind, “We should have peace” and to ask, “How can we have peace?” ( Pastoralist Shade Initiative, 2010).

 Inarguably, among indigenous pastoralist communities of Northern Kenya, elders have been the vanguards of peace. The elders are able to do this because of their control of access of resources, being part of a network of clan/ethnic structures and because they commanded respect and legitimacy on account of their age (Kratli & Swift, 2000). Elders are still regarded as the custodians of cultural norms/practices as well as being the depository of knowledge and cultural heritage (Makumi Mwagiru, 2001). Among the Oromo of which the Borana are part, elders form a dominant component of the customary mechanisms of conflict management (Watson 2001).

Over a period of four years, the elders from the Gabra and Borana communities under the Pastoralist Shade Initiative continued taking messages and holding meetings, including in places where people did not want or believe in peace. Finally, when they were confident that agreements had been largely reached, they called pastoralists, politicians and officials to public peace gatherings. The gatherings were done on pastoralist terms, according to traditional rules. One after another, in a series, each meeting built on the last to confirm and expand the area that was at peace. By June 2009 the fighting between Dillo and Dukana came to an end. By July the peace had extended across Chalbi and North Horr in a meeting at Maikona. By August it embraced Turbi, Rawan, Walda and Sololo, places where politics and insurgency had complicated the situation and weakened leadership.

The ‘Maikona Declaration’ is a short agreement prepared at Maikona and signed by Gabra and Borana representatives at Walda. It sets out the specific laws that relate to keeping peace. After agreeing to accept ebb, a blessing that allows for amnesty in the traumatic histories of the war, the people agreed to revive the implementation of traditional laws. The implementation involves a combination of traditional and state justice systems, in which thefts and injuries are dealt with by both systems of law operating in agreement. At the Walda gathering, the last in the series, the District Commissioner Chalbi had the Declaration written in English and ordained that copies be pasted on administration office walls across the district.

Social contracts, such as the Maikona Declaration and its predecessor, the Modagashe Declaration, have had great impact in mitigating conflict in spite of the fact that they are not legally binding. According to Chopra, “the declarations and the work of the peace committees have had a positive impact on solving persisting conflicts in their areas. In Isiolo, for example… the number of conflicts since 2001 has decreased due to these agreements. The amount of cattle raids are said to have decreased, more cattle are returned and less killings occur.” (Chopra, 2009). The dilemma presented by traditional peace models is that local concepts of communal responsibility for crimes rather than individual responsibility. Under the paradigm of the official law, that means that individuals within a group are held liable for crimes that they did not commit. While this communal responsibility is an important factor of internal social control, implementing it under the declarations is at odds with the norms of the official laws.

The Re-imagined Traditional Model: The Wajir Peace Committee

            Given the perceived non-compliance with formal law on the part of pure customary models of justice such as that employed by the Borana and Gabra, more integrated systems have been attempted. The Wajir Peace Model which emerged out of the internecine resource based inter-clan conflicts in the 1990s one such model. Given the context in which this model was tested, it is much less structured because of the immediacy with which it needed to be deployed. The severe drought in 1992 had decimated over seventy percent of cattle and thirty percent of camels in the Somali community in Northern Kenya.  Natural resource conflicts became increasingly violent with each clan seeking to safeguard the fragile water or grazing resources. Deaths followed incidents between the Ogaden and Degodia clans over alleged land encroachment and violation of political space. Women from that clan refused to sell or buy food items from women of the Ajuran clan, and would not allow them entry to the market. Generally, tension heightened.

With the help of Kenya’s provincial administration and police, Somali women leaders and professional women from all the clans met and formed a Joint Committee of all the clans to act as a vigilante body to forestall the violence. The normative framework that defined the soon to become Wajir Peace and Development Committee (WPDC) was a combination of Somali norms and state sanctioned guidelines. The Wajir peace initiative’s main success has been its ability to revive basic Somali traditional methods of conflict resolution used in pre-colonial times to encourage the equitable sharing and access to the region’s limited resources. Another notable achievement has been the ability to harness energies and resources (that would have otherwise been used in conflict) for development. The initiative has also promoted the use of traditional early warning systems to forestall conflicts in the region. Most importantly, the organisation has been able to “export peace” to other districts of the region and Kenya at as a whole. Where other initiatives have failed, the Wajir peace initiative has managed to create and sustain vertical and horizontal integration strategically necessary for implementing long-term peace-building

Infrastructure support was provided with help from the donor community. Public meetings and discussions involved a full range of community leaders. A new, more consultative atmosphere prevailed. Workshops delved into the roots of conflict, and how it related to the actual economic conditions facing the people of the region.  Within five years the group had touched almost everyone’s heart in the region and beyond, especially for its use community resources and constant dialogue as tools for conflict resolution and peacebuilding.

The resulting structure, the Wajir Peace Committee, brought together community elders and government officials as well as civil society with the aim of providing a safe space for mitigating conflict. In its deliberations, the committee deployed customary praxis as the most important foundation for creating dialogue and paving the way for trust-building. So popular did this model become that by 2004, when the Kenya government begun to formulate a peace building policy, they were adopted as the structure whose replication across the country should be supported. The events of 2007 in Kenya, provided an opportunity to do just that and presently, nearly all districts in Kenya have district peace committees. The resiliency and adaptability of customary structures seem clearly vindicated.

Conclusion

Elinor Ostrom, the 2009 Nobel Peace price laureate has noted that with “simple, local mechanisms, to get conflicts aired immediately and resolutions that are generally known in the community, the number of conflicts that reduce trust can be reduced” (Ostrom 2000).  Such collective action regimes as represented by both the Borana-Gabra model on the one hand and the Wajir Peace Committee on the other cannot be ignored. This is particularly so where the transactional costs associated with formal justice systems in Kenya, be it cost, delay, relevance or corruption, are prohibitively high.