The right to use customary law systems for water governance: a case of the Marakwet of Kenya

2013 IUCN Academy of Environmental Law Annual Colloquium University of Waikato, Hamilton NZ 24 – 28 June 2013In many common law jurisdictions, legal systems for water resource governance are conceived primarily in the context of statutory law. However, in many cases water resource development and management, particularly at the local level, is governed by informal norms, practices and institutions developed by the resource users. Many indigenous peoples and local communities use customary law systems to govern their natural resources. The importance of customary systems for water resource governance is particularly evident in Sub-Saharan Africa where land and water resources are regulated by plural normative systems including statutory law and customary laws of different ethnic groups. For example, Kenya has a long tradition of customary governance as demonstrated by the Marakwet customary water governance system, which dates back to approximately 400 years ago. These customary institutions play a vital role in water resource management particularly in rural areas where two-thirds of the country’s population lives. In spite of this, water reform in most of these countries has focused primarily on the statutory legal systems, with little attention given to customary law systems. Kenya’s water law, as the case with most modern water law, contains limited provisions for the recognition of customary law and the accommodation of customary law institutions. The failure to accommodate or integrate customary law systems with statutory systems of water governance adversely affects the capacity of society to attain sustainable development. Various models for recognition of customary law systems of water governance such as land rights and native title approaches as well as agreement-making have been debated in environmental law scholarship. Using a case study of the Marakwet, this paper critically evaluates the utility of these models in the context of non-settler countries with an indigenous population such as Kenya. The paper argues that in these countries, rights-based approaches may be more effective and thus explores the potential of using the human right to water as a basis for the recognition of customary law systems for water resource governance in the context of a case study of the Marakwet of Kenya.In many common law jurisdictions, legal systems for water resource governance are conceived primarily in the context of statutory law. However, in many cases water resource development and management, particularly at the local level, is governed by informal norms, practices and institutions developed by the resource users. Many indigenous peoples and local communities use customary law systems to govern their natural resources. The importance of customary systems for water resource governance is particularly evident in Sub-Saharan Africa where land and water resources are regulated by plural normative systems including statutory law and customary laws of different ethnic groups. For example, Kenya has a long tradition of customary governance as demonstrated by the Marakwet customary water governance system, which dates back to approximately 400 years ago. These customary institutions play a vital role in water resource management particularly in rural areas where two-thirds of the country’s population lives. In spite of this, water reform in most of these countries has focused primarily on the statutory legal systems, with little attention given to customary law systems. Kenya’s water law, as the case with most modern water law, contains limited provisions for the recognition of customary law and the accommodation of customary law institutions. The failure to accommodate or integrate customary law systems with statutory systems of water governance adversely affects the capacity of society to attain sustainable development. Various models for recognition of customary law systems of water governance such as land rights and native title approaches as well as agreement-making have been debated in environmental law scholarship. Using a case study of the Marakwet, this paper critically evaluates the utility of these models in the context of non-settler countries with an indigenous population such as Kenya. The paper argues that in these countries, rights-based approaches may be more effective and thus explores the potential of using the human right to water as a basis for the recognition of customary law systems for water resource governance in the context of a case study of the Marakwet of Kenya