Integrating customary and statutory law systems of water governance for sustainable development: the case of the Marakwet of Kenya
Abstract
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.