Person: Gachenga, Elizabeth
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Gachenga
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Elizabeth
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- PublicationThe right to use customary law systems for water governance: a case of the Marakwet of Kenya(IUCN Environmental Law Academy, ) Gachenga, ElizabethIn 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.
- PublicationIntegrating customary and statutory law systems of water governance for sustainable development: the case of the Marakwet of KenyaGachenga, ElizabethThis 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.
- PublicationGoverning the commons through customary law systems of water governance(CEESP and IUCN, 2014) Gachenga, ElizabethThe 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.
- PublicationGender dimensions of customary water resource governance : Marakwet case study(Weaver Press, 2015) Gachenga, ElizabethThis 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.