, 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.

, Gachenga, Elizabeth, 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