POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM
59
THE CONCEPTS OF CUSTOMARY LAW
AND COMMON POOL RESOURCE
GOVERNANCE SYSTEMS
Common pool resource (CPR) governance
systems refer to the various models of norms
and institutions used by communities to
manage the use of a shared resource. The
field of CPR governance gained popularity in
the 1990s following the publication of Elinor
Ostrom’s book: Governing the Commons: The
Evolution of Institutions for Collective Action
.
5
Her work provided a highly insightful critique
into the theoretical foundations of prevalent
policy on natural resource governance, and
motivated a reconsideration of the two-
dimensional approach to the ‘problem’ of
limiting the governance of common pool
resources to state or ‘market’ (through
privatisation) solutions.
Most of the work done in the area of CPR
governance has been contextualized
in economics and more specifically in
institutional economics. However, since
the publication of Ostrom’s book, legal
property theorists have also demonstrated
an interest in the conclusion she drew;
that tragedy is not a necessary fate for all
commons. Consequently, in legal property
literature, there is a growing appreciation
of successful institutional arrangements for
the management of commons that do not
fall within the two-dimensional framework
of private property or state control.
6
Despite
reference by legal property theory to Ostrom’s
work, its practical implications have not been
widely researched in the context of law. This
paper seeks to explore one such application by
investigating the linkages between the work of
Ostrom and colleagues on the commons, and
customary law governance systems for natural
resources such as water.
Modern legal frameworks tend to associate
customary law systems with the traditional
norms and practices that local and indigenous
communities have crafted/developed over
an extended period of time. Although it is
true that these systems are often closely
related to long-standing activities of resource-
dependent people, customary law constitutes
a more dynamic reality. In this paper, the term
‘customary law systems’ refers to the norms
and institutions whose moral authority and
force emanates from the contemporary as
well as traditional culture, customs, religious
beliefs, ideas or practices of the people to
whom it applies, rather than from the state.
7
Notions such as ‘community-based’, ‘informal’
or ‘local’ forms of governance are used
regardless of their antiquity or association
with tradition. In this context, customary
law systems of resource governance are
understood as a popular normative pattern
reflecting the common understanding of valid
compulsory rights and obligations relating to
the resource.
Customary law systems for natural resources
governance provide an ideal opportunity
for investigating the emerging theories on
commons’ governance in a legal context. This
is because most customary law systems of
natural resource governance are based on a
CPR governance system. In recognition of this,
Ørebech et al (2005) have sought to explore
the implications of commons governance
research on customary law, suggesting a
link between customary law and sustainable
development.
8
This paper contributes to
these efforts by exploring how Ostrom’s work
on commons can be applied to customary
law systems for water resource governance.
Focusing on a case study of the Marakwet
people of western Kenya, and by applying
Ostrom’s work to Ørebech et al’s research
into customary law systems, I propose an
analytical framework to help identify the
main features of successful customary law
systems for natural resource governance. The
paper confirms that parallels do exist between
the salient design principles identified by
Ostrom and others as indicators of successful
5
(Ostrom 1990)
6
(Rose 1986)
7
This definition is adapted from that of the International Council on Human Rights Policy. See (Policy 2009) 43.
8
(Ørebech et al. 2005)
POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM
60
commons institutions and features of resilient
customary law systems of governance. Above
all, it establishes that customary law systems
that enjoy autonomy over the design of rules
and norms, and which are open to adaptation
and change, are more likely to result in
positive sustainable resource governance
outcomes.
MARAKWET’S CUSTOMARY LAW
SYSTEM FOR WATER GOVERNANCE
The Marakwet community of Kenya have a
tradition of customary law and governance
that predates colonial rule.
9
The community’s
customary law also forms the backbone of
a robust water resource governance regime
based on an irrigation system that runs along
more than 40km of the Marakwet Escarpment
from south of Arror to north of Tot.
10
The
community practices a form of hill furrow
irrigation common in East Africa, described
as a slope off-take irrigation system. The
irrigation furrows of the Marakwet, which
date back to the initial occupation of the
community in the valley, more than 200
hundred years ago, are the main source of
freshwater resources both for agricultural
and domestic use. As the country’s oldest
customary irrigation system, the Marakwet’s
water governance system thus provides an
excellent case for analysis of a customary law
system of water resource governance in Kenya.
Methodology
The primary data used for this case is based
on a field study conducted from November
2010 to February 2011. A qualitative research
methodology was used that combined various
data collection methods, including semi-
structured interviews, three focus group
discussions, and participant observation. The
population sampled came from Sambalat, the
area of Marakwet that borders West Pokot.
The participants of the first focus group
discussion were purposefully chosen
from among clan council elders who are
responsible for management of the furrows
and thus knowledgeable on customary
law norms and institutions for water
governance in the community. The objective
of the focus group discussion was to provide
background information on the furrows,
their management, and allow for an in-depth
analysis of the Marakwet’s customary law
system for water governance.
Under this customary law system, women
do not have a direct role in the management
of the irrigation system. This research
nevertheless sought to obtain the views of
female members of the community and to
determine the extent of their participation in
the design and implementation of customary
rules for water governance. A focus group
discussion was thus organised with both
a selection of older and younger women.
The stratification of age groups was useful
to determine if perspectives around the
perceived roles of women in water governance
had changed over time.
Data was also collected from randomly
selected water users with the aid of semi-
structured questionnaires. Forty-three water
users, consisting of men and women of
different ages and from different households,
were interviewed. Interviews were also
conducted with the local chief of the area, an
official working in the Eldoret Water Services
Company (ELDOWAS) and a representative of
the Lake Victoria North Water Services Board
(LVNWSB) Office in Eldoret.
The Marakwet’s Customary Law System for
Water Governance
Among the Marakwet community, it was
clear that customary law continues to play
a central role in societal life. In the case of
water resource governance, customary law
constitutes the primary regulatory framework
for managing shared water resources.
Community members demonstrated a keen
knowledge of their customary water resource
governance system. The clan elders in charge
9
This is evidenced by the early accounts of the Marakwet’s law and custom. For example (Beech 1921)
10
(Watson, Adams, and Mutiso 1998)