POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM
61
of furrows explained that the origin of the
system dates back more than two centuries.
According to oral histories, the first four
furrows, belonging to the Lakeno, Kapterit,
Shaban and Kabishoi clans, were constructed
in 1882. Construction of the furrows was
triggered by drought in the region. Irrigation
furrows were considered the only means by
which to bring water from the Embobut River
to people on the valley floor, which lies more
than 1000m below the escarpment.
An important feature of Marakwet’s customary
water governance system is that it is entirely
home grown or autochthonous, with the
norms that underpin the system developed
solely by the community. In the case of local
water law, the rules governing development
and use were designed by the clan elders,
in consultation with the wider community,
following construction of the furrows. This
autonomy in design (both in terms of rules
and their implementation) is considered
sacrosanct. One discussant expressed the
centrality of autonomy in the following way,
‘There is no law that will come to tell us who
will or how we will use the water. The water is
for us and for our children from our elders. No
one will tell us how to use it’.
11
Although ultimately geared towards
conservation and sustainability of the water
resource, the scope of their customary
water law is relatively broad and includes
directives on the use of land and other
natural resources. While the rationale for
crafting rules is often based on environmental
indicators, the connection between rules and
ecological conditions is not always evident.
For instance, some of the rules and norms are
encoded within a sacred religious system that
include taboos and prohibitions associated
with the felling of trees, the contamination
of furrow water, or the requirement to plant
indigenous trees, which are regarded as
sacred, around rivers and streams. In the
course of discussion with village elders, it
was confirmed that the underlying objective
of these rules is to conserve water resources
and foster a sense of respect for water among
community members.
Although the clan council in charge of
the furrows are viewed as custodians of
customary law on water resources, the
design, implementation and modification
of the rules is carried out through a broad
consultative process. Consequently, rules
are subject to negotiation and modification
with relative ease. For instance, most of the
water users interviewed talked about the
rule that stipulates how households whose
male members do not contribute to furrow
maintenance and repairs are not entitled
to water provided by the irrigation system.
However, before this rule is implemented,
there is a consultative process in which the
offender is given an opportunity to present
his case. Depending on the reason for
default, other sanctions may be applied to
avoid punishing the entire household, such
as a monetary fine. Young clan members
unavailable for furrow work due to school or
work commitments outside of the community
may substitute their physical labour with
monetary compensation.
This type of rule modification can be seen as
a response to emerging circumstances. While
based largely on norms and practices that
date back many years, there are still changes
that the rule system of the Marakwet has
undergone in recent times. For instance, the
custodian of the customary law system was
traditionally a group of clan elders selected on
the basis of their age and thus knowledge and
experience of the furrow system. However,
recognising the value of formal education, the
community has begun to allow some younger
community members to join the clan council.
While obviously lacking in experience,
younger members are often very resourceful
and savvy in their relations with external
organisations and donor agencies, as well as
holding greater knowledge of (potentially
useful) new technologies.
11
Focus Group Discussion with Clan Elders and Representatives of Furrows Council (Marakwet District- Kenya, February 10 2010)
POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM
62
REVISITING THE DESIGN PRINCIPLES
OF SUSTAINABLE COMMONS
MANAGEMENT AND THEIR
APPLICATION TO CUSTOMARY LAW
SYSTEMS
As noted in the introduction, Ostrom’s
Governing the Commons illustrated how
different communities develop rule-based
institutional arrangements for the sustainable
management of their shared natural
resources. Ostrom’s analysis culminated in
the identification of eight design principles
that appeared characteristic of successful
commons management regimes.
12
Salient Features of Successful CPR
Systems and their Application to Resilient
Customary Law Systems
One of the fundamental observations made
by Ostrom is that appropriators who enjoy
relative autonomy from government or
other external actors in the design of their
institutional arrangements are more likely to
develop sustainable management regimes.
13
Such autonomy ensures that the users of the
resource play a role not only in the design
but also the modification of the rules that
regulate access and use. The case studies also
demonstrated that CPR governance systems
with collective choice arrangements (that
allow individuals affected by operational
rules to participate in their modification)
often result in positive outcomes.
14
Apart
from participating in rule modification, the
users in these successful CPR systems are also
charged with the implementation of those
rules
15
, as supported by subsequent research
that analysed multiple communal irrigation
systems in Nepal.
16
Based on the work of Ostrom and others,
Ørebech et al (2005) argued that adaptability
is also an indispensable characteristic of
success in any complex resource management
system.
17
Adaptability relates to the inherent
capacity of a system not only to deal with the
present but also continue to be relevant in the
future. In other words, a system that has the
capacity to adapt to changing conditions. Given
that the social, economic and ecological factors
that impinge upon and influence natural
resources use and management are in a state
of constant flux, any ideal system of resource
management needs to be capable of adapting
itself to such changes, whether anticipated
or not.
18
This is what Ostrom and Basurto
(2011) were pointing to when stating that CPR
governance systems, in order to be successful,
need to have a tested capacity for adaptability
and openness to change;
19
typically by
means of a normative system that exhibits
substantial variety in its rules, with changes
in rules driven by institutional memory as
well as socio-economic and/or environmental
change.
20
As a result of their genesis and nature,
customary
governance systems also tend
towards versatility and flexibility in the
sense that rules and institutions reflect
the prevalent social, economic, cultural,
political and ecological circumstances in
which they operate.
21
To this extent, such
systems contain an inherent adaptive
mechanism that makes them suitable for
natural resource management. However, as
noted by Bosselman, not all customary law
systems integrate this adaptive management
strategy effectively.
22
A successful customary
law system will recognise the structure of
adaptations that it has made in the past and
it is this that offers an effective vehicle for
making changes to existing rules, encourages
fine-grained rules that can be modified
without having to modify the entire system,
and has a meaningful feedback mechanism in
place.
23
Bosselman’s principles of resilient customary
law systems are comparable to the design
principles identified by Ostrom and built upon
by others, and the synergy that exists between
the two will be looked at in more detail in the
following section.
12
(Ostrom 1990)
13
(Ostrom 1990), 101
14
(Ostrom 1990), 93
15
(Ostrom 1990), 94
16
(Ostrom and Basurto 2011)
17
(Bosselman 2005) 245
18
(Ørebech et al. 2005)
19
(Ostrom and Basurto 2011)
20
(Ostrom and Basurto 2011), 336
21
See for example (Australian Law Reform
Commission 1986) for the Australian Aborigi-
nal experience and (Pradhan 2002)409-446 for
experience from India
22
(Bosselman 2005)
23
(Bosselman 2005)