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Table 2: The
hiza’ti woodland management system and Ostrom’s Design Principles
OSTROM’S DESIGN PRINCIPLES
FULFILLED / NOT FULFILLED
Clearly defined boundaries and users
Fulfilled
Congruence between appropriation and
provision rules and local conditions
Fulfilled
Collective choice arrangement
Fulfilled but potentially threatened by
interference of government institutions
Monitoring
Fulfilled
Graduated sanctions
Fulfilled
Conflict resolution mechanism
Fulfilled
Rights to organise
Fulfilled but dependent on future
government interventionscontinuing to
be supportive of self-organisation
POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM
58
Governing the Commons Through
Customary Law Systems of Water
Governance
The Case of the Marakwet
Elizabeth Gachenga
1
Abstract
The resilience of customary law systems of natural resource governance in many parts of the
world lends credence to Ostrom’s theory on the governance of commons. Ostrom argued that
resource users who enjoy relative autonomy in the design of rules for governing and managing
common-pool resources, frequently achieve better economic (as well as more equitable)
outcomes than when experts do this for them.
2
In support of this theory and acknowledging
that most common pool resource governance regimes are based on a customary law system,
Bosselman has sought to demonstrate a link between customary law systems and positive
outcomes for sustainable development.
3
Using a case study of the customary law system of
water governance of the Marakwet community of Kenya, this paper tests and builds on the
design principles and tools developed by Ostrom, to study normative institutions in a dynamic
environment.
4
The paper proposes an analytical framework that helps identify the features that
strengthen customary institutions and ensure their adaptability and resource sustainability. This
exercise illustrates the parallels between commons governance and customary law governance
of natural resources.
Keywords: commons, common pool resources, customary, law, natural resource governance,
irrigation system, sustainability, sustainable development, property, water
1
Elizabeth Gachenga (PhD) is a law lecturer and researcher at Strathmore Law School in Nairobi, Kenya. This paper is based on
research undertaken as part of her doctoral research at the University of Western Sydney. Email e.gachenga@gmail.com
2
(Ostrom 1990); (Agrawal and Gupta 2005); (Gibson, McKean, and Ostrom 2000); (Tang and Ostrom 1993); (Schlager and Ostrom
1992); (Ostrom and Basurto 2011)
3
(Bosselman 2005)
4
(Ostrom and Basurto 2009)
5
Plate 1: The River Embobut, which is the source of the irrigation furrows used by the
Marakwet people. (Photo credit: Elizabeth Gachenga)