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Browsing by Author "Gachenga, Elizabeth"

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Customary law systems for water governance in Kenya
(Edward Elgar Publishing, 2015-07-31) Gachenga, Elizabeth
In many jurisdictions including Kenya, the term ‘law’ is generally assumed to refer to enacted rules emanating from the state. Consequently, legal systems for water resource governance are considered largely as consisting of statutory law – rules enacted by state organs. Nonetheless, in many countries aspects of water resource management, particularly at the local level, include systems of rules that are beyond the scope of statutory frameworks, with local users developing informal norms and institutions to govern their water resources. This chapter uses the term ‘customary law’ to refer to these informal/ non-statutory normative and institutional frameworks. Customary law systems for natural resource governance continue to exist in many countries. The resilience of customary water governance regimes has led water law practitioners and researchers in the last two decades to acknowledge that these regimes constitute a factor to be reckoned with when preparing ‘modern’ legislation for water resource governance. Research has demonstrated that in some cases, their resilience is the result of an inherent adaptive capacity that makes customary law systems more sustainable than state developed systems. Further, as these customary governance forms are self-developed, they represent a more democratic process of development of law and thus are more likely to be successful at achieving sustainability.
Gender dimensions of customary water resource governance : Marakwet case study
(Weaver Press, 2015) Gachenga, Elizabeth
This book approaches water and sanitation as an African gender and human rights issue. Empirical case studies from Kenya, Malawi, South Africa and Zimbabwe show how coexisting international, national and local regulations of water and sanitation respond to the ways in which different groups of rural and urban women gain access to water for personal, domestic and livelihood purposes. The authors, who are lawyers, sociologists, political scientists and anthropologists, explore how women cope in contexts where they lack secure rights, and participation in water governance institutions, formal and informal. The research shows how women – as producers of family food – rely on water from multiple sources that are governed by community based norms and institutions which recognize the right to water for livelihood. How these ‘common pool water resources’ – due to protection gaps in both international and national law – are threatened by large-scale development and commercialization initiatives, facilitated through national permit systems, is a key concern. The studies demonstrate that existing water governance structures lack mechanisms which make them accountable to poor and vulnerable waters users on the ground, most importantly women. Our findings thus underscore the need to intensify measures to hold states accountable, not just in water services provision, but in assuring the basic human right to clean drinking water and sanitation; and also to protect water for livelihoods.
Governance,institutions & the human condition
(LawAfrica, ) Gachenga, Elizabeth; Franceschi, Luis; Akech, Migai; Lutz, David W
This is a series of papers at the Fifth Annual Strathmore Conference published by LawAfrica
Governing the commons through customary law systems of water governance
(CEESP and IUCN, 2014) Gachenga, Elizabeth
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.
Integrating customary and statutory law systems of water governance for sustainable development: the case of the Marakwet of Kenya
Gachenga, Elizabeth
This research investigates the disconnect between customary and statutory law systems in legal frameworks for water governance and whether the integration of these systems would result in positive outcomes for sustainable development. A novel approach to the investigation is adopted, which seeks the root of the problem in the conceptual and theoretical framework within which water law is developed. By proposing a broader normative base, this research seeks to contribute to the search for more comprehensive solutions to the problem of recognition of customary law systems. Given the centrality of water to sustainable development, this research has significant implications not only on the development of water governance frameworks and the design of the property rights regimes in these frameworks but also on the capacity of the legal systems to achieve sustainable development. An analysis of 17th century common law jurisprudence identifies the legal theories and concepts that form the basis of contemporary legal frameworks for water governance in common law jurisdictions. Consequently, this thesis investigates the legal positivism developed in the period and its notion of law and customary law as well as the property theory and its conception of property rights regimes. The effect of these theories and concepts on the integration of customary and statutory law systems in water governance frameworks is explored. Based on existing literature, the nature and features of customary law systems are investigated and used to determine if a customary law system for water governance exists in the case of the Marakwet. This thesis proposes an analytical framework for investigating the normative aspect of customary law systems and identifying principles indicating the likelihood of positive outcomes of sustainable development. This framework is applied to Marakwet’s customary water governance system. The analysis of Marakwet’s system in the context of Kenya’s water law confirms the limits set by legal positivism and property theory on the capacity of the law to accommodate customary law systems for water governance. An exploration of the human right to water and the right of indigenous peoples’ to selfgovernance using customary law systems, demonstrates the potential of using the human rights-based approach to integrate customary law systems of governing water into the statutory framework. The research also proposes the exploration of classical legal theory as an alternative theoretical framework for transcending the limits set by legal positivism.
Kenya's water act : opportunities for integration of customary institutions of water governance through water resources users associations and water service providers
(LawText, 2011) Gachenga, Elizabeth
The need to develop sustainable systems for water resource governance in an environment of increasing scarcity and climatic variability has led to the re-evaluation of institutional frameworks. There has been a growing appreciation of the need to coordinate institutions involved in order to achieve sustainable water resource governance. Law and regulatory frameworks for water governance in some countries face the challenge of integrating parallel institutional arrangements such as community-based or customary institutions with statutory institutions. The provision for water users associations (WUAs) in the water statutes of several developing countries is an example of the attempt to bring these parallel institutions into the statutory framework. By recognizing WUAs, the statutes provide pre-existing institutions with the opportunity, upon registration, to participate in water resource governance issues. It is argued that this makes them a potential tool for integrating pre-existing customary institutions into the statutory system and in some way providing an interface between statutory and customary law systems. In Kenya's Water Act, the concept of WUAs is embodied in Water Resources Users Associations (WRUAs) and to some extent in Water Service Providers (WSPs). This article analyses the extent to which WRUAs and WSPs are effective in integrating customary institutions into statutory frameworks using a case study of the customary water resource governance system of the Marakwet.
Kenya’s Water Act (2016) : real devolution or simply the ‘same script, different cast’
(Nomos Verlagsgesellschaft mbH & Co. KG, 2019) Gachenga, Elizabeth
The debate surrounding the enactment of Kenya’s Water Act (2016) and its relationship with its predecessor, the Water Act (2002), brings to mind the lyrics of a contemporary pop duet, ‘Same script, different cast’. As the jilted girl attempts to forewarn the current girl of the hurtful ways of her former boyfriend, the latter resists arguing he has changed. To persuade the impressionable new girl to see beyond the façade of the apparent change, the ex-girlfriend uses the expression ‘same script, different cast’ repeatedly, to demonstrate that all that has changed is the actors. In a bid to align the Water Act (2002) with the Constitution of Kenya (2010) (Constitution) and particularly to achieve the devolution enshrined in the Constitution, the Water Act 2016 was enacted following a long drawn out process beginning with the first draft Water Bill of 2012. Despite the amendments brought about by the new Act, critics argue that the Water Act (2016) is at most a superficial modification of the Water Act (2002) albeit with renamed institutions, thus evoking the parallel with the song.
Legal and policy frameworks for climate-friendly energy generation in Africa : energy security for future development
(Macmillan Education Namibia, 2015) Gachenga, Elizabeth; Paul Martin; Sadeq Z. Bigdeli; Trevor Daya-Winterbottom; Willemien du Plessis; Amanda Kennedy
Energy security is one of the most important future challenges for the international agenda of security, peace, and stability worldwide. Increasing energy supply needs and the aim of achieving greater energy independence are playing a mounting role in politics, not only in the United States, Europe, Russia, China and India, but also in Africa as the continent with the highest potential for energy resources for the future. The quest for control and commercialisation of energy resources is also a reality in sub-Saharan Africa. Nigeria and Angola are the biggest oil-exporting countries after the countries of the Middle East. Namibia is one of the biggest uranium-exploiting countries, while Tanzania may in future become one of the most important gas-exporting African countries to world markets. The United Nations forecasts that the African population will be around 2 billion people in 2050, and therefore the expanding demand for energy will be one of the challenges with which Africa is faced, along with poverty reduction, food security, water security and combating the impacts of climate change. But Africa’s challenges are also world challenges, because energy security is a global priority, with global markets, interests and needs. More than ever, a reliable discussion about the importance of coordinating secure energy supplies worldwide, and especially the impact on Africa, is essential for the future of this continent, as part of the international energy security structure. The African Union represents a continent which is faced with different aims, security interests and needs, if one compares the destabilising developments over the past 10 years in the north, south, east and west of Africa. Which path will Africa take in respect of rapidly growing energy demands on the continent – the European or the Asian path?
Legal and policy frameworks for climate-friendly energy generation in Africa : energy security for future development
(Macmillan Education Namibia, 2016) Gachenga, Elizabeth; Ruppel, O. C; Althusmann, B.
Energy security is the sine qua non in stabilizing democracy and economic growth, and in reducing poverty and the impacts of climate change. This writing investigates energy security and renewable energies in sub-Saharan Africa, pointing out practical opportunities and regulatory challenges from the perspective of an African expert.
Stein’s ethic of care: an alternative perspective to reflections on women lawyering
(Routledge publishing, 2011) Gachenga, Elizabeth
The book features significant and timely contributions which take contemporary and non-mainstream perspectives on the current and future shape of the legal profession. The essays not only describe the rapidly changing profession but canvas different approaches to scholarship on the legal profession. The collection seeks to explore a diverse and contextualised profession from a number of angles. Authors examine how the public sees lawyers and how lawyers see their own profession; how we practise law and how this practice shapes lawyers; how such cultural and professional practice intersects with institutional structures of the law to create certain legal outcomes; and how we regulate the legal profession to modify or institute ethical practice. The volume provides insights into legal culture and ethics from the perspective of authors from Australia, Canada, England, the United States, New Zealand and Kenya – a diversity of national perspectives that give valuable insights into developments in the profession at the local and global level. It also illustrates diversity within the profession by tracing differing professional career trajectories based on raced or gendered barriers, alternative ethical strategies and the impact of organisational cultures in which lawyers practice.
Tapping fresh currents: fostering early-career researchers in transdisciplinary water governance research
(Water Alternatives, ) Gachenga, Elizabeth; Patterson, James J.; Lukasiewicz, Anna; Wallis, Philip J.; Rubenstein, Naomi; Coffey, Brian; Lynch, A. Jasmyn J.
Water governance is an important, yet complex and contested field. A central challenge for researchers is to engage with multiple understandings and perspectives that can shape water governance, and to move towards more transdisciplinary approaches. These challenges are magnified for early-career researchers (ECRs), and while the need for transdisciplinary approaches and better support for ECRs is increasingly recognised, there remains a lack of understanding of how to achieve this within the wider research community. Thus, this paper investigates through an auto-ethnographic inquiry the practical experiences and challenges faced by a diverse group of ECRs engaging in water governance research. Reflecting on our own endeavours and relevant literature, we identify a range of path-finding experiences and challenges, and explore strategies employed by ECRs to navigate the 'uncharted waters' of evolving career pathways in water governance research. 'Communities of Practice' are identified as a promising opportunity to support ECRs by enhancing opportunities for reflection and learning. Overall, we argue that there is significant merit in enhancing the way in which water governance research is understood, and improving the means by which ECRs are supported to build capability and contribute in this field.
The recognition of indigenous customary law in water resource management
(LawText Publishing Limited, ) Gachenga, Elizabeth; Craig, Donna
The role and place of customary law in `modern' statutory legal systems has been the subject of academic discourse, particularly in nations which had traditional legal systems in existence before the subsequent super-imposition of statutory systems. The resilience of the traditional systems in some cases results in implementation challenges for the modern systems, thus necessitating the recognition of customary law by the subsequent statutory legal systems. `Law' means a body of rules recognised by a society as binding. When a society accepts as legitimate more than one system of rules having different sources, and in some cases in contradiction with each other, the society is said to have a polycentric, pluralistic legal system. Customary law comprises those sets of rules, established through the process of socialisation, that enable members of a community to distinguish accept-able from unacceptable behaviour and includes con-ventions and usages adhered to and followed by people through generations. The primary emphasis in most Anglo-American jur-isdictions has been on research, policy and laws relating to the recognition of customary law in the context of property rights and the criminal justice systems. In nations such as Australia, where there are no treaty rights or legal recognition of Indigenous sovereignty, recognising customary law in the sustain-able use and management of resources, including water, provides some important strategies for Indigen-ous peoples. Much more research and discussion is required on this aspect of environmental law and the rights of local communities, Indigenous and tribal peoples. This article seeks to contribute to this discourse by considering customary law in the context of international and domestic law with a particular focus on its potential role in natural resource management (NRM) (and particularly water resource management) based sustainable livelihoods. Drawing from the experience in Australia, the article reflects on some features of Indigenous customary law for NRM and forms of recognition of customary law proposed and used in Australia. It makes a case for legal pluralism as a more effective context for the recognition of customary law in NRM
The right to use customary law systems for water governance: a case of the Marakwet of Kenya
(IUCN Environmental Law Academy, ) Gachenga, Elizabeth
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.
The Role of women in nation building
Ngunjiri, Irene; Gachenga, Elizabeth
The task of nation building requires the participation of all regardless of their race, ethnicity or gender in the creation of a strong state. The challenge of balancing between the need for unity and the recognition for diversity in the course of nation building is manifest not just in the interaction between Kenyans of different racial and ethnic backgrounds but also between the different genders. Strathmore University’s motto ‘that all may be one’ articulates the institution’s commitment to contribute through education to this task of nation building in a spirit of unity of races, ethnicities and gender. The appreciation of the need for gender equality has led to the enshrining of affirmative principles in Kenya’s new Constitution to ensure the participation of women at all levels of national decision making. This important milestone provides the opportunity to reflect on the role of women in nation building and thus the education that women should receive in order to prepare them to effectively contribute to nation building. This paper reflects on this by addressing the questions: What makes woman “woman”?; and What type of education does she need so as to make that unique contribution to nation building that only she can make?

Browsing by Author "Gachenga, Elizabeth"

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