Graduate School of Development Studies

Coping with scarcity in Northern Kenya: The Role of

Pastoralist Borana Gada Indigenous Justice Institutions in
Conflicts Prevention and Resolutions for Range Resources
Managements

A Research Paper presented by:

Godana Denge Fayo

(Kenya)

In partial fulfilment of the requirements for obtaining the degree of

MASTERS OF ARTS IN DEVELOPMENT STUDIES

Specialization:
Human Rights, Development and Social Justice
(HDS)

Members of the examining committee:

Dr Jeff Handmaker
Dr Bram Buscher

The Hague, The Netherlands

November, 2011
Disclaimer:
This document represents part of the author’s study programme while at the
International Institute of Social Studies. The views stated therein are those of
the author and not necessarily those of the Institute.
Research papers are not made available for circulation outside of the Institute.

Inquiries:

Postal address: International Institute of Social Studies

P.O. Box 29776
2502 LT The Hague
The Netherlands

Location: Kortenaerkade 12
2518 AX The Hague
The Netherlands

Telephone: +31 70 426 0460

Fax: +31 70 426 0799

ii
Acknowledgment
My gratitude goes first and foremost to my supervisor Dr Jeff Handmaker and
my second reader Dr Bram Buscher for their critical comments that shaped
this paper and put it on course to become an acceptable academic paper.
Thank you very much and your contributions to this phase of my life will
always be appreciated and valued. I would like to thank my fellow students
with whom we have shared comments and ideas on the paper and other
generalities of academic life. In particular Nelson, Gift and the rest of the HDS
class and staff of 2010/2011. All the joys, encouragement and stressful
moments of the academic life we shared have shaped and moulded me to be a
better person with broader world view.
All the ISS staff and faculty have been wonderful in one way or another;
the library team, ILIAD, the facilities and student office deserve special thanks
for making my stay at ISS and academic study a very fulfilling and meaningful
journey of my life.
I would like to mention the chaplaincy office in particular, for all the
social, spiritual and moral support that you gave and especially the organized
trips and tours to Netherlands country side, which expanded my horizon
beyond The Hague.
My family of course deserve special mention here, my wife Tolmon Leila
for being loving, supporting and a source of inspirations and encouragement
through the phone, Skype and e-mail when I complained how tough things are
getting. Thank you for taking care of our children and making our home a
continuous source of joy and happiness for the family and visitors as well. You
are in every way part of my successful completion of this study.
Last but not the least my gratitude goes to Nuffic for the scholarship
without which it would not have been easy for me to pursue this Human
Rights Development and Social Justice (HDS) specialization course at one of
the finest institute in the world – The ISS.
I dedicate this work to my four children, Jillo, Darartu, Boru and our last
born Liban whom I left when he was less than a month old. My hope, wish
and prayer are that you will all live a fruitful life to produce a better research
paper than your daddy.
To my Liban, I will have this small piece of work to explain why I had to
leave you at that tender age. I love you all.

iii
Contents

Acknowledgment iii
List of Acronyms vi
Abstract vii
Relevance to Development Studies viii
Figure 1. Map of Kenya showing the locations of three Northern Kenya
Districts of Isiolo, Marsabit and Moyale 9

Chapter 1 Introduction 10
1.1 Background to the research problem 10
1.2 Relevance and Justifications 11
1.2.1 Personal/ Professional 11
1.2.2 Academic 11
1.3 Research Questions and Objectives 12
1.3.1 The main research questions 12
1.3.2 Research Objective 12
1.4 Methodology of the Research 13
1.4.1 Difficulties and Limitations of the Study 14
1.5 Organization of the paper 15

Chapter 2: Conceptualizing indigenous justice as ‘Alternative

Disputes Resolution’ and how it is mobilised 16
2.1 Introduction 16
2.2 Indigenous people defined 16
2.3 Theorizing Indigenous Institutions for range resources management 18
2.4 Restorative Justice Perspective in range resources conflict resolutions 19
2.5 Legal Pluralism framework perspectives for indigenous peoples
range resource ownership and claim 21
2.6 Summary 22

Chapter 3 The Borana Nation – Pastoralism, Polity and the Socio –

Political Context of the Range Resources Management tenure 24
3.1 Introduction 24
3.2 The Borana 24
3.2 Pastoralists and the challenges to pastoralism 25
3.2.1 The historical challenges that inform the present 25
3.2.2 Contemporary challenges that perpetuates the past 27

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Chapter 4 Realizing Justice through customary laws; Embracing
Opportunities and Overcoming Tensions through Legal Pluralism 29
4.1 Introduction 29
4.2 Relevance of Indigenous institutions for range resources management
and conflict resolutions 29
4.2.1 Administrative and social units institutions of the Borana 30
4.3 Customary indigenous justice is communally realized 32
4.3.1 The Reparative aspect of indigenous justice 32
4.3.2 The Restorative Aspect of the Indigenous Justice 34
4.4 Tensions between customary justice systems and formal statutory
systems of justice 37
4.4.1 Some government policy choices are in tension with
indigenous customary ways 37
4.4.2 Legal Framework Tensions 40
4.4.3 Easing the Legal frameworks Tensions- towards a balanced
legal plural approach 42

Chapter Five: Conclusion 45

References 47

Appendices 56
Annex A: Study Participants and Activity details. (July – August 2011). 56
Annex B: Borana Clan Structure 57
Annex C: Borana Common Property Range Resources. 57

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List of Acronyms
ACHPR African Charter on Human and Peoples’ Rights

APRM African Peer Review Mechanisms

ASAL Arid Semi-Arid Lands

AU African Union

CEMRIDE Centre for Minority Rights Development

FGD Focus Group Discussions

ICERD International Convention on the Elimination

of All Forms of Racial Discrimination

ICESCR International Covenant on Economic, Social and Cultural

Rights
ILO International Labour Organisation

KHRC Kenya Human Rights Commission

KNCHR Kenya National Commission on Human Rights

NRM Natural Resources Management

IK Indigenous Knowledge

UDHR Universal Declaration of Human Rights

UNDRIP United Nations Declaration on the Rights of Indigenous

Peoples

UN United Nations

VOM Victim Offender Mediation

WHO World Health Organization

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Abstract
Northern Kenya is an arid part of Kenya, inhabited by the pastoralists who
traverse the vast region on seasonal migrations as they seek sufficient pasture
and water for their livestock. The harsh weather conditions and the shrinking
range resources base has made pastoralists inhabitants of the region go through
severe hardships in their survival manoeuvres to protect their lives and that of
their livestock from the threats of the drought. This survival manoeuvers has
occasionally resulted in conflicts among the communities. The conflicts of late
have had numerous casualties, due to proliferation of small arms and weapons
from the neighbouring unstable countries like Somalia. Due to the regions
marginalization most state institutions are not adequately equipped, staffed or
facilitated to handle their respective service delivery to the people. In particular
the judiciary is among the least developed state institutions in the region. The
courts only exist at district headquarters and are poorly staffed, with cases of
one magistrate being shared by two or more districts being common (personal
experience). Hence the judiciary has little effect as deterrence to the perpetra-
tors of conflict.

This study against all this odds facing the Northern Kenya region shows
how the indigenous Borana community has alleviated these conflicts over the
range resources through their institutions of range resources conflict manage-
ment. These institutions which have checks and balances and defined division
of roles have been preserved by the community and are active to this day. This
is what has made their pastoralism livelihood viable and feasible despite the
numerous challenges. The study further demonstrates how the justice regimes
of the indigenous community appeals to their socio- political organization and
demographic dynamics. Their justice system is restorative and seeks at all times
to restore and repair the broken victim, offender and community relationships.
The formal justice systems on the other hand is seen as alien to their value sys-
tems and does not take into account how the local pastoralist’s communities
understand and define crime and resolve disputes or conflicts.
This study demonstrates analytically the socio –political and socio –legal
aspects that characterize the customary and formal justice institutions and
shows the existence of tension between them that needs to be addressed
through a legal framework that accommodates the two in one – legal pluralism.
This is to allow the effective operations of customary justice systems without
fear of contradicting the formal systems, and to have the customary restorative
justice systems decisions of conflict resolutions and range resources manage-
ment as binding upon the state.

vii
Relevance to Development Studies
The notion of customary or traditional justice as Alternative Disputes Resolu-
tion is getting growing attention within the social – legal field of Development
Studies. This study seeks to expound on this ADR, using one indigenous pas-
toralist community – the Borana of Northern Kenya. The study highlights how
the community is using their age old justice institutions in mitigating conflicts
over their shrinking range resources to ensure access and equity. Further, the
study contributes to analyse the relevance of this customary justice for the
community and explores the tension that might be there with the formal statu-
tory justice systems. The paper stresses that the customary justice systems are
viable and relevant for the community; only that appropriate legal framework
needs to be put in place to anchor the customary decisions on conflicts resolu-
tion and management of the range resources as binding upon the state through
a legal plural framework.

Keywords
Indigenous people, indigenous institutions, Borana, Gada, Nagaa Borana,
restorative justice, legal pluralism.

viii
Figure 1.1
Map of Kenya showing the locations of three Northern Kenya
Districts of Isiolo, Marsabit and Moyale

Source: Survey of Kenya, 2010. (Please note that the study focused on
Borana as they are the dominant ethnic group. There are other pastoralists’
ethnic groups in the three districts as well).

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Chapter 1 Introduction

1.1 Background to the research problem

Northern Kenya, the subject of this study falls in the category of the region
classified as Arid and Semi – Arid Lands (ASAL) lands of Kenya. Hence, the
region receives mean annual rainfall of between 200 – 450mm (Luseno et al,
2003). Due to this depressed rainfall the region experiences drought at higher
frequencies which disrupts the pastoralist’s livelihood. The depleted livelihoods
lead to various mitigation measures, as intense competition for the scarce
resources intensifies. The intense competition has led to conflicts as
community fight it out to control the grazing or water points when the times
gets tougher due to prolonged droughts.
The pastoralist’s communities of Northern Kenya, who are identified as
an indigenous people group, have fairly developed and customized traditional
ways and means of coping with the harsh climatic conditions and to utilize
effectively the available scarce resources, as much as it is possible within their
limitations. Due to inevitable conflicts over the scarce water, pasture and land
most pastoralists’ communities have developed traditional ways and means of
conflict prevention and resolution mechanisms. Among this is the Borana
Gada systems of administrations which is the political, judicial, legal and ritual
administrations of the Borana community who inhabit the 3 districts of
Northern Kenya, namely Isiolo, Marsabit and Moyale (see map figure 1 of
Kenya), as well as large part of Southern Ethiopia
As Waters – Bayer (1994: 9) observed, “Pastoralists make use of arid and
semi-arid areas where climatic variability is large, meaning that the natural
resources on which they depend are highly variable in space and time, also
between years---”. Hence as the range resources become scarce, competition is
becoming stiffer and tensions are rising between states and communities
sharing these common resources. As such a concerted effort or ways and
means of addressing these conflicts before it degenerates into loss of lives and
property is important.
Therefore the research problem that I want to address in this study refers
to the ways and means of addressing these range resource related conflicts
among the Borana of Northern Kenya through an indigenous justice systems
as an ‘Alternative Disputes Resolutions’ (ADR). The relevance of the
indigenous justice institutions to how the community understands and define
crime in conflicts resolutions will be explored in relation to formal state justice
systems. The study will seek to analyse the tension between customary and
formal justice systems and how this will be overcome to have a legal plural
framework that will accommodate both customary and formal justice systems
to serve the community as an effective, relevant and reliable mediator for
equitable access, and conflict resolutions over their range resources.

10
1.2 Relevance and Justifications

1.2.1 Personal/ Professional

In Northern Kenya ‘frontier’ districts of Isiolo, Marsabit and Moyale nearly
every inhabitant in one way or another has been a victim of conflicts, banditry
and cattle rustling that are rampant in the area. I know several cases of friends
and relatives whose lives were cut short as a result of these conflicts. At a
personal level, one recent incident comes to my mind among the many that I
have experienced. In August of 2008, I received a call from family members
that armed bandits have raided our cattle, which my younger brother and
another man were herding. The raiders killed the other herdsman and took off
with close to 75% of the cattle, but my brother managed to escape. However,
in the panic and confusion of the raid, he lost his way and did not make it to
the camp and spent the night in the wild. So my family thought he was either
abducted or killed. I remember making a 12 hour nonstop agonizing trip from
Garissa to Moyale, a distance of over 600 Kms, to help in the search and
rescue. Luckily my brother managed to make it to the camp the following day.
I attended the funeral of the man who was killed. As for the stolen cattle,
though the suspected ethnic tribe which did the raid is known, we are yet to get
them back as this was a kind of retaliatory attack against the Borana who
raided their cattle and killed one of their herder just weeks before this incident.
Professionally I’m a trained water technical officer and have extensive
work experience in the pastoralist’s communities of both Northern and North-
Eastern Kenya. I have witnessed pastoralists sufferings during prolonged
drought as water and other range resources become scarce and pastoralists
resort to long distance migrations and sometimes across the borders from
Kenya into Ethiopia, Somalia and vice versa. We have encountered incidences
of conflicts, some extremely violent as the limited resources competition
intensifies and communities make efforts to curve out survival territories of
pasture and water for themselves. This study will help me to interact and
engage the community as an observer and a participant in the realities of the
Northern Kenya challenges.

1.2.2 Academic
There is no doubt that range resources play a central role in the lives of Borana
pastoralists. For example, those who initiate water projects like a well or a pan,
enjoy a social honour that even guarantees them some privileges in the society.
They are bestowed with titles like Aba Konfi – literally father of the well or pan.
Water, pasture and land all have an equally unifying role for the whole society,
thus the Gada indigenous system has Aada Seera Bisssani (Bassi, 2005, Legesse,
1973) - customs and laws of range resources to govern the range resources
amongst the Borana and with neighbouring communities. For Borana water
and other range resources also have significant ritual importance as a source
and sustainer of life, hence during the ritual coffee ceremony prayer, all the
water sources and the other range resources in Borana land are invoked in
prayer and the divine power is beseeched to maintain peace around them. Thus
11
range resources are of such vital role to the fabric and harmony of the
community that any form of disputes or conflict over water and other range
resources have to be resolved within the shortest time possible.
While the Borana Gada systems has been studied and some literature on
the same are available i.e Legesse, 1973, and 2000 G. Dahl, 1979, Bassi, 2005
and Leus, 2006, all this are anthropological records of the Gada, that generally
dwell on either the judicial, legal, ritual or administrative aspects of the Borana
Gada. This study approaches the aspect of the Gada that has not received
much academic attention from the point of view that the Gada justice
management system can effectively be applied to range resources related
conflicts prevention and resolution mechanisms. Though some studies have
done expositions on the Gada range resources governance institutions, no
attempt has been made to argue for its relevance, particularly in relation to
statutory range resources related disputes resolutions regime.
From the social, economic, ritual and territorial value of the range
resources to the pastoralist communities livelihood and self-identity, this study
is worthy project as it contributes to the existing literature and study on the
indigenous Borana Gada governance systems.

1.3 Research Questions and Objectives

1.3.1 The main research questions

1.3.1 This study aims to make a contribution to the existing literature on
indigenous Borana Gada knowledge, focusing especially on the justice aspects
of the Gada system of range resources management regimes and resolutions of
disputes or conflicts around the same. To realize this, the study poses one main
question; How do the Borana of Northern Kenya realize justice through Gada
indigenous institutions in resolutions of conflicts over range resources? The
subsidiary questions are; what are the processes and procedures involved in
enforcement of justice among the Borana? What are the main factors,
historical and contemporary that has contributed to conflicts over range
resources? What are the implications of the tension that may be there between
customary and formal justice systems and how can they be overcome?

1.3.2 Research Objective

This study aims to make contributions to the field of what has come to be
conceptualized as Alternative Disputes Resolution (Kahane, D. and C, Bell.
2004:25) or Informal Justice, UNDP (2006:9), Oomen, (2005: 25) and Benda –
Beckman, (1997) as Legal Pluralism. Further this study will critically examine
the prospect of the Borana Gada justice system of conflict prevention and
resolution for range resources disputes and realizations of justice under
customary laws. The study will further seek to trace the historical and
contemporary challenges faced by the pastoralists that are underlying causes of
conflicts over the range resources.

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1.4 Methodology of the Research
This is a qualitative study that makes extensive use of primary data. It is
premised on Social - legal concept on how the ‘indigenous justice are utilized
to solve range resources conflicts, for equitable access and use. From a
customary law perspective, and or what has come to be known in the current
scholarly theoretical discourses as ‘Alternative Dispute Resolution’ (ADR). As
Kahane expressed:
Given perceived deficiencies in adversarial, court-centered responses to
conflict, there has been a search for forms of dispute resolution less costly in
both social and economic terms. ADR denotes modes of problem solving,
negotiation, conciliation, mediation, and arbitration less formalistic than
conventional legal approaches to conflict, more attentive to underlying
interests, and less likely to create winners and losers. (Kahane, D. and C. Bell,
2004).
The study was carried out in the Borana region of Northern Kenya which
covered three districts namely; Isiolo, Marsabit and Moyale. The study focused
mainly on the ethnic Borana people Gada systems as basis for the study,
however it should be noted that other pastoralists group also live in this region.
The study used snowballing sampling to get views from the younger elders to
the senior elders. Also purposive sampling was utilized to get views from those
residing in towns and those living in the villages. Semi structured interviews
was conducted extensively with four elders, 2 very senior elders whom I
designated senior elders A and B and 2 elders whom I designated Elders C and
D. (see Annex A for all details of interviews done for the study). This was done
purposely as Borana though not having a gerontocracy rulership, revers elders
as they are considered to be full of wisdom and custodians of the customary
ways due to their experience of various cycles of community socio, economic,
political and ritual phases.
Further semi structured interviews were conducted with 2 focus group
discussions (FGD), one composed of 6 women and the other one was
composed of 14 men. The women focus group discussion was done on
purpose as due to cultural limitations women cannot be very expressive in the
presence of men, hence a separate forum was ideal for them to fully express
their views and to contribute effectively to the study. I also got an opportunity
to meet and interview 3 district water officers, 3 peace committee chairmen
and 4 NGO officials working with the pastoralist communities in the region.
All these interviews was to back up the data I got from the elders and rural
areas FGD, so as to establish if these government officials, civil society and
NGO workers hold contrary views or support the indigenous justice systems
of the Borana in the region.
I also did observation study as I visited 1 water well and 2 water pans –
though one of the pan has dried up and there was no activity around it by the
time I visited. Interestingly I encountered some local armed men at the one of
the well .These are not regular police, but a village Para police popularly known
as ‘home guards’. I struck an informal discussion with them and they stated
that they are there to provide security to the people and livestock coming to
water at the well. During prolonged drought the few remaining water points
13
usually become very risky security areas as there is general fear of threats from
other communities or even wild animals. One of this wells I visited was in
Marsabit area and the guards were there to guard against the elephants that
have been desperate as they have no water in the nearby Mount Marsabit
forest, hence they come down to the wells, where they usually cause a lot of
damage to the wells besides posing a big risk to the human and livestock
dependent on the wells. To get the views of the state judicial officers on how
they perceive the role of the Borana Gada customary justice institutions in
conflict resolutions, I visited the Moyale district court offices, I did not get the
magistrate but I managed to get a brief discussion with a senior court official
concerned with the preparations of case files for civil and criminal cases that
come before the court.
The study further engaged extensive literature study, especially to trace the
historicity of the Northern Kenya region marginalization ‘policy’ pursued by
the colonialist to the present governments that have made the communities to
loose trust in the formal systems of the government and to continually
embrace and rely on their indigenous systems. I should point out that in the
process of the interviews attitudes and perceptions were also taken into
considerations, besides the factual information to establish a narrative whether
the indigenous justice institutions are still relevant, viable and vibrant in the
community.

1.4.1 Difficulties and Limitations of the Study

Among the difficulties encountered in the course of the study was the fact that
the whole of Northern Kenya was experiencing serious droughts that was
affecting most parts of the Horn of Africa. It was really a sad encounter when
you talk to pastoralists who have lost between 80 – 90% of their livestock. To
make the matters worse, you are coming to interview or talk to someone about
water or other range resource when the same has lost his entire livelihood
partly due to lack of the same for his livestock. Most villages I visited were
depending on water tankering – this is NGO or government hired trucks or
water bowsers that bring water to the villages on rotational basis. This is just
for basic sustenance and hardly enough to afford any family a decent water
supply requirement of minimum 15 liters per person per day (WHO). I
encountered a village that gets 20 liters ration of water per family after 2 days.
To be honest it was a bad time to discuss the range resources and specially
water as one elder who is personally known to me told me in jest, “we only
need water now, not to tell stories of how we used to manage our water, we no
longer have water this days, people are scrambling for the little that is available,
so young man we are not in good mood to tell tells, without water and pasture
for our livestock, our lives is no longer the same” ( Elder C)
Finally the interviews were conducted in the Borana local language and it
was natural that the translations may lose the original deeper and richer
expressions that the interviewees employed to stress or emphasis a point. This
limitation was as much as possible limited as I speak the local language and did
the best transcription possible, that is close to or the same as the original
intentions of the speaker.

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1.5 Organization of the paper
The paper is organized into five chapters; the first chapter provides an
overview and background to the research problem and the thesis research
question. Chapter two provides a conceptual lens through which the
indigenous justice institutions for conflict resolutions and range resources
management can be analysed. Chapter three provides brief introductions of the
Borana nation, their history, polity social organizations and resource
management tenure. Chapter four based on primary and secondary data begins
the in depth analysis of research findings with detailed narrative analysis
around the main arguments of indigenous justice dispensation and the tensions
between the formal and customary justice systems. The concluding chapter five
answers the research question and offers reflections for the study highlighting
the main argument in reference to research questions.

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Chapter 2: Conceptualizing indigenous justice
as ‘Alternative Disputes Resolution’ and how it
is mobilised

Indigenous justice systems are based on a holistic philosophy. Law is a way of life and justice
is a part of life process. (Ada Pecos Melton, 1995).

2.1 Introduction
This research seeks to understand how indigenous justice system is applied to
ensure just and equitable distribution and management of the scarce range
resources through timely resolutions of conflicts around them. Also the study
will examine how the community frames, claims and realizes justice through
the existing indigenous institutional set up. To do this, it is imperative that a
framework for analysis that serves as a lens through which the indigenous
justice systems processes and procedures in range resource distribution and
management can be viewed and analysed. The following theoretical concepts
are discussed; various definition and concepts of being indigenous, the
theorization of institutions, restorative justice and legal pluralism all in relation
to range resources management and how conflict around them are resolved.
Please note that in this study range resources or natural resources are limited to
water, pasture and land. (See Annex C)

2.2 Indigenous people defined

The current Indigenous people’s discourses mostly fronted by UN according
to Sally Merry frames them as nothing more than “Noble primitive close to the
nature” (1996:69). These however, are people group or communities who
identify themselves as indigenous and “demand recognition and protection of
their fundamental rights in accordance with their culture, traditions and way of
life” (ILO 169: 1989)
So far there is no universal consensus on the definition of the term
‘indigenous peoples’, however there are general criteria or special dynamics
that can be used to determine or identify indigenous peoples, in order to
‘isolate’ them for the purposes of helping them frame, claim and realize their
human rights within their realities. Since there is no generally agreed definition
of the indigenous people, some consensus on what constitutes indigenous
people have received some form of agreement among human rights groups.
For example, the Kenya National Commission on Human Rights ( KNCHR)
and an organization called Centre for Minority Rights Development
( CEMIRIDE), through a popular consultative forums among the indigenous
communities of Kenya developed the following criteria that was purposed to
help the indigenous communities in framing of their human rights discourse,
this are:

16
 Having a sense of collectivity /solidarity/belonging, Claiming rights to
ancestral land in collectivity/common originality, Practicing and retaining
cultural lifestyle, Retaining traditional institutions and social organizations,
Depending on natural resources in their respective territories, Suffering
exclusion and discrimination from and by mainstream systems, Possessing
unique or common religion and spirituality and Utilizing unique means of
livelihood and traditional occupation. (KNCHR/CEMIRIDE, 2006:4).
This unique circumstances of the indigenous people leads to a biased
policy choice where the main means of indigenous peoples livelihood such as
hunting and gathering and nomadic pastoralism “are looked down upon,
putting their future survival and development in serious jeopardy” ( UN
Special Rapporteur, Kenya- Para. 17). Indigenous people world over also lack
adequate recognition before the law like other dominant community, as a result
of which they continuously suffer from extreme forms of subjugation,
marginalization and discrimination. This unequal treatment and discrimination
suffered by the indigenous peoples according to the UN Rapporteur on
indigenous peoples to Kenya, exacerbated by the fact that they are seen as
“reluctant to assimilate and adopt modernity” (ibid: 22 -24)
From the characteristics criteria of the indigenous peoples group quoted
above, we see a people with special attachment to their traditions and cultures,
though more often than not, the dominant groups have negatively stereotyped
this attachment and used it as an avenue for discriminations against them.
Although the ILO convention 169, preamble calls for the indigenous peoples
to be able to “exercise control over their own institutions, ways of life and
economic development and to maintain and develop their identities, language
and religions within the framework of the states in which they live”, there is
little evidence that shows the states have been keen to promote the indigenous
peoples rights to exercise their self –determinations to their ways of life
including traditions and customs.
However, as Gaventa ( 2002:5) pointed out the realities of differential
power relations among communities to claim their rights will always
disadvantage the less powerful, like the indigenous people as a report by
African Peer Review Mechanisms pointed out, Most state laws does not or is
doing very little to gear their respective laws, state directives and policies to
correct the historical and prevailing marginalization, “against certain
geographically and ethnically aligned communities that were left out of the
mainstream development processes”( APRM 2006: 47).
By their resilience and sheer will power, indigenous people continued to
influence the world agenda which climaxed in the UN Declaration on the
Rights of Indigenous Peoples (UNDRIP), which was adopted in the year 2007.
Article 11 of the declaration – affirms “the rights of indigenous peoples to be
free to realize and live their cultural traditions, which includes their rights to
protect, develop and maintain “past, present and future manifestations of their
cultures”. (UNDRIP, Art. 11)
It is still too early to say whether this declaration has improved the social,
economic and political welfare of the indigenous peoples around the world,
however understanding who the indigenous people are, how they perceive

17
themselves and the challenges they face is a very important concept that will
inform this study.

2.3 Theorizing Indigenous Institutions for range resources

management
In communities prone to conflict, especially over the basic common resources
in this case water, pasture and land, there are institutions that play critical role
in managing this common resources as well as dispensing of justice where
necessary for sustainable development and livelihoods. According to
(Chambers, 1997, Crew and Harrison 1998), there is no problem with
development just because of lack in technical know-how, but lack of
institutional capacity as well. Hence the ‘local organizational capacity’ (Harris,
1997) has been identified as the missing link. Focus is of late shifting to
understanding how institutions inter –link and there inter –relationships from
the local, regional and national institutions (Leach, 1999). Further Watson,
(2001: 3) argues that “Institutions are organizations, but they also include the
rules and regulations that determine access to natural resources. They define
the access that a group has to natural resources and they also define who has
the rights within the group.”
Institutions are not static; hence they change to both societal and
environmental changes. As such institutions are dynamic and have the ability
and potential to act upon and change or shape behaviour, while on the same
breath individual actions and behaviour does shape the institutions within
socially and mutually accepted or agreeable limits. As pointed out by (Leach et
al, 1997), “the institutions into which a person is born and through which he or
she lives and understands the world constitute that person, but at the same
time the person is able to work and change the nature of these institutions”.
Institutions are pervasive and can influence different facets of social
interactions, actions and organization, hence creating discourses for each
‘realm of social action’. However, it is a fact that these discourses will be
different as different people will have their discourses exercised differently,
which more often than not has elements of competition. As Leach et al pointed
out, “social actors do not exist outside of discourses but it is through
discourses that they practise and experience reality” (1997: 36)
The control and domination of discourses by a social group over another
group creates unequal power relations and makes the group that controls the
discourse dominant over the other. This attained dominance affords the
dominant group what I would call ‘acquired legitimation’ that makes the group
feel privileged to meet their desire to help themselves to the resources of the
dominated groups.
Monique Nuijten in her discussions of the concept of power relations in
the institutions introduces a concept she refers to as ‘force field’, according to
her this “refers to a more structural forms of power relations which are shaped
around the access to and use of specific resources”( 2005: 2). To clarify further
her argument of this ‘force field’ concept Nuijten goes deeper and suggests a
thorough scrutiny of the existing structures within the socio –political context
for informed decision making on ways and means of improving the same.
18
 In order to analyse power relations in natural resources management, one
should first of all come to grips with existing forms of organizing around the
use and distribution of the resources, whether these be informal or formal, or
‘well organized’ or a ‘mess’. The ultimate aim of such a study is to understand
the logics of these forms of organizing in the specific socio –political context
and to examine existing power relations. Only when we understand the logic
of existing situations, can we think about ways to improve the management
around natural resources (2005:2)
However, power in reality is a complex issue for any institution as it
breeds elements of what Barume (2001) calls ‘hegemony’ or domination unless
proper checks and balances are put in place to ensure that the relational aspect
of power is not in favour of particular people group. May be the solution to
this ‘hegemony’ that power will eventually breed can be found in the work of
Maarten Bavinck, who in one of his studies of concepts of institutional
governance talks of ‘Interactive governance’ (2008:3), - as the term suggests,
this concept places emphasis on interaction where governance become
interactive and engages all facets of the governed. These interactions engage
the actors – who Bavinck defines as “any social unit possessing agency or
power of action” and structures “frameworks within which these actors
operate” (ibid: 3).
Understanding and operationalization of indigenous institutions actors
and structures of natural resources management can bring about local
community empowerment and development that is sustainable. The study will
analyse the justice institutions involved in conflict prevention and resolutions
in range resources management from the actors and structures perspectives.

2.4 Restorative Justice Perspective in range resources conflict

resolutions
Restorative justice is a more victim centred justice system that seeks to restore
victims as well as restoring offenders and restoring community (Braithwaite, J.
1996). In recent times there have been growing scholarly movements that is
advocating for the Alternative Dispute Resolutions, this includes the Victim
Offender Mediation (VOM) and the increased interest in informal disputes
resolution and neighbourhood justice (Bazemore, 1996, 1998).
Restorative justice theory can also be viewed as “an overarching paradigm
of public problem solving, citizen participation and collective responsibilities
for building stronger communities” (Clear and Korp, 1999). Restorative justice
generally, though having varied conceptualization depending on the cultures
and traditions has a common meeting point, which is how people think about
crime and respond differently to it, against the conventional formal court
systems. In describing the focus of restorative justice, Zehr state that:
Restorative justice focuses on harm caused by offenders by seeking to repair
harm to victims and communities and reducing future harm by preventing
crime. Restorative justice requires offenders to take responsibility for their
actions and for the harm those actions have caused. It seeks redress for
victims, reparation by offenders, and reintegration of both within the

19
 community as communities and government achieve restorative justice
through a cooperative effort. (1990: 48).
Thus restorative justice allows for direct participation of offenders in the
process of justice and holding them accountable so as to guide them to take
responsibility for their actions that will lead to the repair of harm done to the
community and victim. As such the focus of restorative justice is on
‘communities and victims needs’ and ‘offender’s obligations’. The process of
restorative justice is obviously participatory and as Lemley, puts it, “Seeks to
maximize information, dialogues and mutual agreement between victims,
offenders and communities” (2001:46). Further restorative justice looks at the
greater good of the society through an orientation that is future focussed – the
offenders harm is balanced with “making things right” (Zehr, 1990), and
through reconciliation and reintegration, the offender is restored back to the
society.
The ‘formal’ justice through the courts, on the other hand is popularly
seen to be of ‘retributive’ justice, it is punitive and its aim is to make offenders
suffer as much as the victim if not more. The offender’s accountability is to the
state and not to the offended –victim or the larger community as is the case
with restorative justice. Ada Melton in emphasising this difference between
‘restorative’ indigenous and ‘retributive’ formal justice points out that:
The retributive philosophy holds that because the victim has suffered, the
criminal should suffer as well. It is premised on the notion that criminals are
wicked people who are responsible for their actions and deserve to be
punished. Punishment is used to appease the victim, to satisfy society's desire
for revenge, and to reconcile the offender to the community by paying a debt
to society. It does not offer a reduction in future crime or reparation to
victims. (2004: 126)
On the other hand indigenous restorative justice working model is for
problems to be addressed in its entirety. In case conflicts come up, under
restorative justice there is no fragmentation or compartmentalizing of the case
into “pre –adjudication, pre-trial, adjudication and sentencing stages” (Melton,
2004). Restorative justice sees this as hindrance to conflict resolutions and
restoration of offenders, victim, community harmony and relationships. The
justice process considers all factors that brought about the problem and the
solutions to the problem to ensure justice becomes participatory as everyone
affected is involved. “This distributive aspect generalizes individual misconduct
or criminal behaviour to the offender’s wider kin group; hence it is a wider
sharing of blame and guilt. The offender along with his or her kinsmen are
held accountable and responsible for correcting behaviour and repairing
relationships” (ibid, 1989).
The study will analyse the indigenous justice regime from the restorative
justice perspectives and how it is experienced in the community as they
manage conflicts over their range resources.

20
2.5 Legal Pluralism framework perspectives for indigenous
peoples range resource ownership and claim
A situation where different legal systems work or co –exist in the same
geographical area is referred to as ‘Legal Pluralism’ (Pimentel, 2010). Other
legal scholars ( Merry 1988, Von Benda – Beckmann et al, 1997; Spiertz, 2000;
Griffith, 1986) see legal pluralism as a legal alternative that “explicitly
recognizes that multiple and normative frameworks co –exists”. Legal
pluralism recognizes several legislations including “National legislation,
religious and customary laws, development project rules, and unwritten local
norms that may all address who should get a resource from which sources and
for what purposes” (Mein Zen –Dick, and Randolph 2001:3) from this
statement we appreciate the fact that legal pluralism accommodates a set of
legal frameworks within which resources can be accessed and claimed
proportionately. Other Natural Resources Management scholars like Jesse
Ribot, call for “Decentralization” (2008) of judicial systems to have room for
‘Alternative Disputes Resolution’ mechanisms.
Barbara Oomen, (2005) who has done extensive research on the roles of
chiefs and customs in contemporary South Africa, points out that among the
surprises of the late 20th Century is the emerging reality that states are no
longer a monolithic sites of ‘uniformalisation’, but rather of ‘organization’ of
diversity, where there is recognition of plurality as having a substantive role in
the state. This is what Oomen (2005) calls “The myth of the mirror – The idea
that the law of the state should and need reflect the diversity of culture and the
alternative existence of governance and law expressed in terms of cultural
differences still dominates the academic and political thinking on the legal
recognition of cultural diversity as it did in the past” (2005: 22). It is indeed a
reality that most indigenous communities are regaining their consciousness and
demanding recognition for self-determination especially after the declarations
of the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP) was adopted in 2007. Article 3 of this declaration reads;
“Indigenous people have the right to self – determination, by virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural developments” (UNDRIP, 2007). But the
important question remains, what does this self-determination entails? Daes in
Barume sees this self-determination as the ability of the indigenous people to
exercise control over their lives – though within a particular state
jurisprudence,
[There is an] urgent need for understanding by non-indigenous societies of
the spiritual, social, cultural, economic and political significance to indigenous
societies of their lands, territories and resources for their continued survival
and vitality. … [B]ecause of the profound relationship that indigenous
peoples have to their lands, territories and resources, there is need for a
different conceptual framework (emphasis mine) to understand this relationship
and a need for recognition of cultural differences that exist. Indigenous
people have urged the world community to attach positive value to this
distinct relationship, Daes (in Barume 2001: 102).

21
 This ‘different conceptual framework’ Daes is alluding to in the above
quote may point to the ‘legal pluralism’ as this is the avenue through which
indigenous communities are able to exercise their customary laws.
Finally from the foregoing discussions there is a clear line of argument
that indicates no state is holding the monopoly of ‘rights’ or ‘justice’ on its own
term, but there is need for the states to recognize existence of customary laws
and readiness to negotiate with the natural resources dependent communities
as their framing, claiming and realizing justice over this resources derives
legitimacy from their customs and traditions over and above the state statutory
laws, not in a contradictory way but complimentary. This is legal pluralism in
action. This legal pluralism discourse will provide the basis upon which the
study will base its analysis of field data within the other analysis framework
discussed above.

2.6 Summary
From the analysis framework above there is lively scholarly debate that is
seeking to understand and appreciate the significant roles of the indigenous
justice institutions in managing the range resources and conflicts that may arise
around them. Extensive theorizations of legal plural framework that seeks to
recognize the restorative justice of the customary ways in determining access
and equitable range resources utilizations has been expounded by prominent
range resources and various legal scholars.
This paper applies in its analysis these theorizations of legal plural
concepts of range resources management and conflicts resolutions around
them through the customary indigenous justice systems. These include among
others: Oomen’s (2005) “the myth of the mirror” that the law of the state
needs to reflect the diversity of the culture and alternative existence of cultural
laws, Merry, 1988; Von Benda – Beckman, 1997 and Pimentel, 2010 ‘Legal
Pluralisms’ that different legal systems in this case ( formal state and informal
customary) “can work or co –exist in the same geographical area, hence
customary courts and customary laws can be effective guardians of traditions
and rule of law and human rights in an atmosphere of mutual respect and
recognitions of one another”. My analysis will also be based on Ribot’s ( 2008)
‘Decentralizations’ theory in the context of which the local disputes resolutions
mechanism are “designed not to replace the formal judiciary but to supplement
the judiciary effort” in governance of the environment and natural resources.
Ribot also makes an important point that will help in the realization of this
‘Decentralization’ in that he calls for the support of NGO’s, donors and
communities to support the ‘Decentralization’ process as ‘Alternative Disputes
Resolutions’. This idea is equally supported by scholars like Melton, 2006 Van
Ness,1996; Zehr, 1990; and Benjamin, 2008, who recognize the role of
various stakeholders in helping realizations of justice not only through formal
state judiciary but also through alternative customary justice systems as well.
Finally, to overcome the tensions that may arise between indigenous
justice as restorative and formal state justice the study applies Braithwaite and
Strang (2001) theory of what they call ‘virtuous circle’ – “restorative justice
needs state authority to prevent powerful fractions of the state from destroying
22
restorative justice, so that a virtuous circle of restorative justice, civil society
and state authority is created” (2001: 9). As illustrated in Fig. 2 below,
Restorative Justice taken positively supports the state and civil society
initiatives to have harmonious society and sustainable range resources
management.

Figure 2.1: A ‘virtuous circle’ where restorative justice supports civil society and state
authority

Restorative Justice State Authority.

Civil Society

Source: Braithwaite, J and H. Strang (2001) Restorative Justice and Civil

Society, pg.10.

After these discussions of framework for analysis through the indigenous

people defined, the theorizations of institutions, the restorative justice and the
legal pluralism, the next chapter will introduce the Borana, their polity and
discuss historical and contemporary challenges that they face as pastoralists
that is underlying causes of conflicts in the region. There has been
dispossession and appropriation of pastoralists range lands as according to the
constitution of Kenya, the land is under ‘Trust Land’ Act (Cap 288) meaning
the communal ownership the pastoralists hold on to is not recognized. This
dispossession leads to shrinking resource base that in hard times like drought
leads to conflicts over the range resources.

23
Chapter 3
The Borana Nation – Pastoralism, Polity and
the Socio – Political Context of the Range
Resources Management tenure

3.1 Introduction
This chapter discusses the general introduction of the Borana and their ways of
operationalizing their institutions. The chapter forms a discourse basis for the
analysis of the research findings. Northern Kenya conflict over range resources
has a historical dimension which has largely remained uncorrected to this day
by successive governments of Kenya. Besides, there are also emerging
challenges from local entrepreneurs and rich western aristocrats who are being
allocated huge swathes of pastoralist’s lands for private development, where
wild animals are fenced in and used for sports and tourism against the
pastoralist’s wishes. The chapter also underscores how an indigenous
community has resorted to their age old justice institutions to ensure that in
the absence of effective formal justice regimes that regulates rule of law in their
region, they uphold and revitalize their systems to have justice in equitable
allocations and use of the scarce range resources, by resolutions of conflicts
over the same through their indigenous justice systems.

3.2 The Borana

The Borana are part of the larger Oromo speaking people of Ethiopia. Oromo
is one of the most populous language groups in Africa. (Legesse, 2000, Bassi,
2005). The Oromo community who inhabit Ethiopia predominantly are
considered among the largest and the most widespread “ethnic groups in
Africa and are estimated to number between 25 -30 million people” ( Doyo,
2009: 40). The Borana live to the South of the main ‘Oromia’ land in Ethiopia
as well as in the Northern part of Kenya, ‘straddling the borders between the
two countries’. In Southern Ethiopia, the Borana number over 500,000 while
in Kenya they are over 300,000 people. Borana have two general moiety
division known as Sabbo and Gonna, where Sabbo has three three sub
moieties and Gonna has 14 sub moieties (See annex A for the clan under each
moieties). While the Borana generally co –exist as a unit irrespective of whether
you are a Sabbo or Gonna, the only restriction is inter marriage from the same
moiety is not allowed. Hence, Sabbo marries from Gonna and vice versa. The
general community unity and pattern of life is ordered along the rules and
regulations of the Gada system of administration, which has a structured chain
of command with Aba Gada – literally father of the Gada at the top.
Every Gada remains in office for a formal eight years after which they are
to hand over to the incoming Gada officials through a formal handing over
ritual ceremony. “The scholars of Oromo history and ethnography have placed

24
a great premium on the Borana as the repository of the ‘gada’system’ In
contemporary Oromo, political, social and cultural dispensation, the concept
of the Gada plays the central role as an indigenous and egalitarian form of
democracy” (ibid: 16).
During the scramble for Africa by the colonialists in the 1890’s, the
Borana land was divided between the British East African Protectorate ( later
Kenya) and the Abyssinian Empire (later Ethiopia) (ibid: 16) The Kenya
Borana curently occupy the upper part of the Eastern Province to the North of
the country and occupy three districts namely; Isiolo, Marsabit and Moyale.
This partition of course did not come or happen without consequences to the
unity, harmony, polity, and psych of the Borana nation.

3.2 Pastoralists and the challenges to pastoralism

Pastoralists according to the available records have been in Kenya from the
third millennia BC (ibid: 27). There was huge social diversity, where different
communities of different cultures developed dominance over particular
regional niches. At present pastoralists occupy most of the 80% of Kenya’s
total dry lands, alternatively called – Arid and Semi –Arid Lands (ASAL’s).
Further, the pastoralists are 20% of Kenya’s national populations. (ASAL,
2007) “Like other indigenous populations across the globe, the pastoralists
share land and utilize kinship ties for mutual social solidarity. Pastoralists are
generally defined as people who rely heavily on production of domestic herds,
whose sustainability is based on mobility and the availability of pasture and
water” (Doyo 2009: 28)
Below I discuss briefly the historical consequences of the Borana
encounter with the colonialism and also the current challenges the pastoralists
are facing after which the Borana range resources management regimes are
discussed. The purpose of this is that, in the process of interacting with the
community and especially the senior elders and my own personal experience
and readings of various literature on Northern Kenya, including a KNCHR
report of the 2000, that was titled the ‘Forgotten People’, there is a link
between what happened in the past and what is being experienced at the
moment. The current lack of development and marginalization is indeed a
historical incident that has been perpetuated to date. Left with minimal
government interventions the community resorted to preserve their indigenous
institutions to govern and manage their socio, economic and political lifestyle
to cope with the realities of their circumstances.

3.2.1 The historical challenges that inform the present

There was evidence that Borana rose to have some dominance in the South of
Ethiopia and Northern Kenya, which by early 19th Century was a borderless
land, where the pastoralists roamed freely, (Leys, 1924: 103). To this rise to
power beginning of 19th Century, Bassi (2005: 6) states that; “They created a
network of alliances with other pastoral groups – the Gabra, Sakuye, Garii,
Ajjuran and Wardaha – over which the Borana held a position of hegemony”

25
 This hegemony was not to last long as at the second half of the 19th
century, three colonial powers came on the scene of Borana land. The Italians
from the East, the British from the South, and the Abyssinians from the
North. As Schlee points out;
In Northern Kenya the domination of the Borana who had been under
pressure from the westward advance of Somali groups from the second half
of the 19th Century, ended with British colonization which was roughly
contemporary with the military annexation of Borana territory by Ethiopia.
The imposition of colonial order made possible in both Kenya and in
Ethiopia by the use of fire arms and the consequent division of the Borana of
Kenya and those of Ethiopia made it impossible for the Borana to resist and
defend their territories.”(Schlee 1989:47)
Further observation was made by an American traveller, who was among
the first non-British to traverse Borana region - Dr. Donaldson Smith, who
made a scathing remarks against the British “For allowing Ethiopians and
Italians to unleash havoc in the Borana land” ( Huxley, E. 1935: 39). The
British directives that the Borana should not use mounted horses in war fare to
check the encroachment of their land resources really put Borana at a
disadvantage against their expanding enemies. (Doyo: 2009).
When the British and Ethiopians (Abyssinians) signed the partition
agreement between themselves, the now weakened Borana were not even
consulted, but there was a guarantee that Borana on both sides of the borders
should have unfettered access to either side of the border to access the range
resources as need may arise. This agreement was not to live long as the
Ethiopians “flouted the spirit of the agreement by stopping Borana from the
British side to access pasture and water on the opposite side” ( Oba G, 1996:
42) These restrictions of course had a devastating impact on the perpetually
held communal social networks and shared resources among the Borana. Doyo
in commenting on this scenario states that:
Access to resources was the bedrock of their livestock based economy, which
in turn was the source of livelihoods. The partition of the community under
the Ethiopia and British territorial superstructure altered their resource
governing system, as the decision no longer resided with them. The acclaimed
territorial powers affected the local institutions and governance systems,
especially weakening the responses to such issues as conflict between
antagonistic ethnic groups. (2008: 42).
The advent of colonialist in the Borana region led to proliferation of arms,
which began to play a critical role in determining who controls what in the
region. The Borana were not able to get access to ‘modern’ weaponry until
much later due to the skewed colonial policies against them. However, from
the quote above we realize that this situation set in motion a kind of ‘armed
race’, as every community in the Northern region realized the power of the
‘modern weaponry’, to determine who gets the best or most of the ‘commons’
resource, that is the range resource of the Borana land.
This sad historical precedent planted the seed of discord among the
pastoralist of Northern Kenya, who ever since have come to be identified with
war fare and conflict over access to range land resources – land, pasture,
26
saltlicks and water instead of the harmonious dialogue based mutual co-
existence that was in place before the advent of the colonialists – Abyssinians
in Ethiopia side, Italians on Somali side and British in the Kenya side. This
rather unfortunate policy choice by the colonialist for the pastoralist
communities of Northern Kenya is what made the American writer James
Negley Farson, who made a maiden journey through the Northern Kenya
region to state rather succinctly that the region is “One half of Kenya about
which the other half knows nothing and seems to care even less” (Farson J.N,
1950: 260)

3.2.2 Contemporary challenges that perpetuates the past

Pastoralists are generally defined as people who rely heavily on production of
domestic herds, whose sustainability is based on mobility and the availability of
pasture and water (Doyo 2009: 28) Though the pastoralists lands exhibit such
main features, that is; receives little rains, has high evapo transpirations,
vegetation is sparse and soils are shallow – nevertheless it is suited for livestock
production, which includes cows, shoats, camels, donkeys and supports huge
wildlife populations.
A geographer who carried out pastoral areas survey, points out the
obvious, by stating that this harsh climatic conditions have not stopped those
keen to exploit the resources of the pastoralists dry lands. He comments that;
“In spite of the harshness and ecological limitations, this drylands are now the
destination of substantial stream of migration” (B, Frank 1985: 62).
In Northern Kenya, this phenomenon has already been witnessed in Isiolo
and Marsabit area where the remnants of former colonial settlers rich and
powerful western and European aristocrats are hiving off huge chunks of
pastoralists lands and turning them into private ranches or the so called
‘conservancy’ – where wildlife is fenced in for sports and tourism. These lands
once given out are formalized through registrations, while the pastoral lands
are left without any form of identifications or regulations as it ‘does not
belong’ to ‘anyone’. The taking of these pastoralists’ lands is in connivance
between the aristocrats, the state or local authorities. Hence as the pastoralists
lands shrinks so is the already limited resources of pasture and water. So, this
uncontrolled ‘taking over’ of the pastoralists lands has a very negative impact
on the mainstay of the pastoralists as it seriously jeopardizes the production
systems of the community, as livestock depends on the ‘extensive grazing of
native pasture’ ( Doyo, 32) and range water sources.
Elliot Fratkin, in describing the prevailing circumstances in pastoral
regions of the world state that; “Pastoralists societies face more threats to their
way of life now more than any previous time. Population growth , loss of
herding lands to private farms, ranches, game parks and urban areas, increased
commoditization of livestock economy, outmigration by poor pastoralists , and
period dislocation brought about by drought, famine and civil war are
increasing in pastoralists region of the world” ( 1997:246).
However what Eliot Fratkin, did not point out or over looked is the fact
that these threats he mentioned will obviously have an impact on the social
cohesion of the pastoralists community, their way of life, their way of
27
interacting, the kinship and above all their way of dispensing justice and
handling of emerging issues. These challenges are very real; hence a strong
indigenous institution is required to manage the shrinking resource base if
pastoralism is to remain a viable enterprise. Hence the Borana of Northern
Kenya and Southern Ethiopia have preserved their Gada resource management
institutions which as Doyo observed is “ a long history of preservation of
cultural and social systems within which communal resources were governed”
(Doyo, 14).
After this introductory chapter to the Borana, their polity and institutions
for range resources management, the next chapter continues to expound on
the analysis of the field data on how the Borana manage the conflicts over their
range resources through their indigenous justice institutions.

28
Chapter 4
Realizing Justice through customary laws;
Embracing Opportunities and Overcoming
Tensions through Legal Pluralism

Laws and justice are part of the fabric of community, however, justice not only envelopes the
individual and society, but also resides within the individual. - (Buckley, 2006).

4.1 Introduction
This chapter focus on in-depth study findings analysis by extensively
expounding on the conceptualizations and realization of justice among the
Borana. The study through FGD and interviews with senior elders and other
informants formed a narrative from their narrated experiences on how justice
is dispensed, regulated and what factors make the community to rely on their
indigenous justice over the formal judiciary. The policy and legal tensions that
are there between state and customary systems are analysed and ‘Legal Plural’
framework comes out as an alternative that connects the two systems. Through
the theory of ‘Virtuous Circle’ customary restorative justice contrary to
conventional thinking is actually a support to state authority and civil society in
conflict resolutions and management of the pastoralists range resources, once
proper ‘Decentralization’ of justice systems is done.
Please note that the terms indigenous, customary, informal, restorative
and Alternative Disputes Resolutions (ADR) are used interchangeably to refer
to Borana Gada traditional justice regime, while formal, statutory, judicial, state
are also used interchangeably to refer to official Kenya systems of justice.

4.2 Relevance of Indigenous institutions for range resources

management and conflict resolutions
Indigenous institutions play a crucial role in shaping community identity,
values and norms. Institutions are not only organizations within a society, but
also rules, regulations and positions that determine who gets ‘what, when and
how’. To determine if community systems are effective it is good starting point
to determine the organizations around the institutions that shape the
community. According to Leach et al., institutions are broadly defined as
practises and all structures that “influence who has access to and control over
what resources, and arbitrate contested resource claims” (1999:226). Further
Watson argues that indigenous institutions include “organizations,
conventional knowledge, ‘regularized practises’, customary rules and practises”
(2003: 289).
There is increasing appreciation of the role of the indigenous institutions
previously seen as retrogressive and of insignificant contributions to the
‘modern’ development practises or processes including the judicial systems.
Development practitioners and policy makers are coming to make sense of
29
what Citchley (2008) called ‘Indigenous Knowledge’ (IK), which according to
(Chambers, 1997), is “risk minimizing, sustainable and adapted to precarious
micro –environments.” Customary rules have been effective in ensuring equity
for the society at all levels including those who are perceived as vulnerable in
the society unlike the modern day structures where power relations determines
who gets ‘what, when and how’.
Indigenous institutions that include the Gada Borana, continue to be
popular among especially the communities that consider themselves as being
marginalized due to their small populations or attachments to their traditional
systems. These institutions have served the community well and gave them
identity and ability to overcome and manage their socio – economic, cultural,
ritual and political challenges. These are the reasons why Warren et al., sees
these indigenous organizations as; “a ready- made set of power structures that
enable a group of people to organize themselves to take decisions, to enforce
regulations and to resolve conflicts” (1995). The Borana of Northern Kenya
and Southern Ethiopia have common institutions that govern them as a nation.
The difference of the two government’s political systems seems to have very
little effect on the way they have organized themselves at least on the
management of their natural resources and conflict resolutions structures.
Gada institutions provides for the Borana what Uphoff summarizes as “a
universe of experience that could provide many valuable lessons for mobilizing
and sustaining collective action for self –help and self – management in the
modern world” ( 1996: 8)

4.2.1 Administrative and social units institutions of the Borana

The Borana have defined distinct administrative and social units. These units
help the community to assign important communal roles like, range resources
governance, security, ritual performances and disputes and conflict resolutions.
The institutions are structured in such a way that they are represented from the
lowest social unit - Olla to the highest pan Borana assembly – The Gummi
Gayyo. Generally as Doyo, sums it “The defining features of Borana range
management institutions are indigenous knowledge, equitable access, and
decentralisation of governance, principles of subsidiarity, distributive and
redistributive mechanisms and environmental sustainability” (2009: 33)
Watson in summarizing the role of key administrative and social
institutions or units in range resources management and conflict resolutions
observes that:
The abbaa Gadaa is seen as the figurehead of the whole of Boran, and is often
described as the President. As well as performing rituals, matters are referred
to him and his council when a decision cannot be reached at a lower level.
When conflict breaks out between olla’s (the smallest unit of settlement
consisting of 30 to 100 warraas households) or arddaas (small group of ollaas,
usually two or three only, who may cooperate together on their grazing
pattern), or maddaas (area surrounding one water source), then the abbaa
Gadaa will rule on the case. If there is conflict between ethnic groups, then he
will be called in to help make peace. As the abbaa Gadaa is responsible for
dealing with matters of concern to the Boran, and as matters of concern are

30
 often related to access to the resources (water, land, and forests), the abbaa
Gadaa is the highest level of institution of natural resources management in
Borana.(2001:13 )
As much as I agree with Watson, in her observation, I however, disagree
that the highest level of institution in resource management is the Aba Gadaa. I
confirmed this with the Senior Elders, A and B respondents who confirmed
that the highest institution of Borana in all aspects of social, political, economic
and ritual affairs is the Gummi Gayyoo. This is a Pan Borana 8 year cycle
assembly that has the mandate to amend and make new rules and laws that
become binding upon all Borana. The Aba Gadaa himself is subject to Gummi
Gayyoo as the assembly has authority to subject his leadership to scrutiny and
hand down verdict as necessary. As Wako who is Borana himself and literature
professor at a Kenyan University pointed out in elaborating on the role of
Gummi Gayyo:
This assembly of multitudes Gummi Gayo is vested with the powers of
legislature, undertakes law reforms, reiterates old laws and enacts new ones.
Convened by high –ranking gada officials, the assembly serves as a dominant
authority uniting the Borana into a political and social entity. Noted for its
freedom of expression and attendance, the assembly tends to curb the
excesses of all members, be they high and mighty or lowly and ordinary.
Persistent disputes, which were unsettled for their gravity or complexity, are
brought before an open air court for the community to contribute their
wisdom towards its solution. (1997:647 -648).
However as Arsano pointed out in most cases:
The Borana handle the issue of justice at various levels. Issues may also vary
from breach of smallest taboo to serious offences. Cases are usually settled by
clan elders at two levels; Qae Millo (lineage level court) and Qea goossa (clan
level court). With the exception of a few, most cases are not taken beyond
clan level courts… (1997: 45).
This administrative and social institutions are linked from the lowest to
the highest through an elaborate inter clan and Gonna/ Sabbo Moiety
relationship and mutual inter dependence systems.
Borana do regulate their justice institutions to ensure that at all times
credible elders are the ones adjudicating over the cases that may arise. Also all
Borana are equal before the Gada laws irrespective of once position in the
community, as Bassi Reports “The Aba Gada himself is subject to the same
punishment as all other Borana if he violates the laws; same laws, same
punishments. This is the evidence that shows us that the law is above
everybody including the Aba Gada” (2005: 200). For the elders who engage in
forms of malpractices that compromises the resolutions of cases, they face a
form of punishment referred to as Murra Harka Fuudhani or Buqissu. This is like
impeaching and once this punishment is declared on someone he will no
longer adjudicate over any case. According to Wako:
The term Buqisu is not without serious imports. In Borana not only is the
culprit concerned impeached and barred from holding any public office but
this punishment is extended to his offspring. For this reason, leaders desist
31
 from any form of immorality as conventionally deemed by the culture;
corruption in public office, unorthodox marriages, un procedural wife
inheritance of dead relatives, defiance to elders and sex related misconducts.
(1997: 650).
An example of how Murra Harkafuudhani or Buqissu is declared or decreed
on errant public official or elder as recorded by Basii (2000) is as follows:

Eella hinmurin Make no decision about well

Haara hinmurin Make no decision about dams. (Pans)
Biyya wandubattan Call no meetings of communities.
Daaba ilma –niti hinmurin Make no decision about welfare of wom-
en and Children.
Daaba buusa gonofa hinmurin Make no decision about the welfare and
protection of clansmen1

This severe punishment for errant officials is to ensure that morally

upright elders and officials are the ones who adjudicate cases as they set a good
example and represent the ideals of virtue that uphold the aspirations of all
Borana to be at peace in a just and secure environment. The importance of the
community, family, clan and water as a resources and by extension pasture and
land can be discerned from this decree, as to be denied any decision making
power or judicial authority over this social units and resources is to be
completely cut off from the affairs of the community.

4.3 Customary indigenous justice is communally realized

The underlying principle of indigenous justice is that it is communally realized,
it is reparative and restorative.

4.3.1 The Reparative aspect of indigenous justice

Wallaala kenna, ka wallaallen kenna! (The offender is ours and the offended is
ours) These were the words of one of my respondents Elder C, when I wanted
to know from him why the community still trusts more there indigenous
justice institutions than the formal justice systems. What he meant was that in
case of conflicts, disputes or any form of disharmony in the community, the
perpetrator and the victim are still part of the community and they have a right
to benefit from the social support that the community structure affords any
member of the community, until the case is settled and appropriate reparation
or restitution is instituted through the customary justice systems.
When conflict occurs that needs arbitration of elder’s parties, the defence
and the claimant have to be present for the case to proceed to trial. The only

1 Marco Bassi, 2000.

32
exception according to the elders is where women are involved; they are not
supposed to be present if the woman is married. Her husband automatically
assumes all responsibilities on her behalf, but if her husband is dead and she is
not under any levirate marriage and has no grown up sons who have assumed
age of responsibility, then she is allowed to represent herself. All the disputes
resolution cases always begins and ends with a prayer, where the senior most
elder invokes the divine – Waq – God to bless the meeting and guide the elders
to reach amicable and just verdict.
After the deliberations and all sides have given their side of the cause of
the disputes or conflict, the elders after extensive interrogations of both parties
to establish and understand circumstances around the case, issue their verdict
and the guilty party is informed accordingly and urged to accept the guilt by
actual verbatim affirmations. As Allot, et al observed “The case of Borana
confirms a situation common in customary law, where the determination of
wrong must be arrived at to the satisfaction of both parties and the public with
redressive measures, which however occur after the admission of guilt” (in
Bassi, 2005: 213). This verbal admission of guilt is the starting point of the
justice process as the claimant is assured that at least he/ she has received
justice by the offender affirming his/her guilt – Wallaalla. This phase of the
proceeding is so important that the case cannot proceed to the next stage until
guilt is acknowledged by the party found guilty by the court of elders or
officials. As Melton rightly observed:
Verbal accountability by the offender and the offender's family is essential to
express remorse to the victim and the victim's family. Face-to-face exchange
of apology and forgiveness empowers victims to confront their offenders and
convey their pain and anguish. Offenders are forced to be accountable for
their behaviour, to face the people whom they have hurt, to explain
themselves, to ask forgiveness, and to take full responsibility for making
amends. Observing and hearing the apology enables the victim and family to
discern its sincerity and move toward forgiveness and healing. Forgiveness is
strongly suggested, but not essential for the victim to begin healing. (2006)
After the offenders affirmation of guilt and verbalizing the same, the
elders now decide the appropriate restitution for the verdict, which is usually
inform of livestock. These fines are imposed on the guilty mostly as per Addaa
Serra- Custom and laws of the Borana and mostly it turns out symbolic as
when the guilty party becomes truly remorseful and pleads for forgiveness and
makes genuine effort to reach out to the offended victim and the larger family
and clan, they can easily forgive and even decline from collecting the fine
imposed on the offender. The logic of all this is that according to the Elders:
As much as we do not encourage conflicts in our midst, we also are not
encouraging people to collect fine from one another whenever it is handed
down to the offender, we usually prefer forgiveness, as that is what will create
genuine bonding of the society and maintain the Nagaa Borana,- the peace as
per our culture it is better to forgive and foster relationships than collect a
fine. Usually after the offender is forgiven, he can as gratitude voluntarily give
a cow or a goat or anything he considers valuable even after 5 years, to the
person he offended because of the forgiveness he received when he was

33
 found guilty. Also because as a community we are all interdependent and
even if we disagree today we would definitely need each other in the near
future, hence there is need to maintain a relationship even after very serious
conflicts” ( Senior Elder B)
The community values such initiatives “Because crime is viewed as a result
of a breakdown in social bonds that link individuals and communities and is, in
addition a cause of a further weakening in these bonds, the justice response to
crime at the community level must also involve citizens and community groups
in repairing damaged relationships or building new relationships” (Van Ness et
al, 1989). Crime does cause more than just breaking of relationships, more
often it also causes harm to the victim and this too must be dealt with in a way
that will also take care of this harm caused to the victim “if the crime is in fact
about harm, justice cannot be achieved simply by punishing or treating
offenders. Rather justice process must promote repair or an attempt to heal the
wound crime causes” (Ibid; 1989). The Borana basis for their justice is their
culture, which all Borana are expected to uphold and cherish as it is the
foundation of the society and it gives them their identity as a people group. In
stressing the importance of culture, Braithwaite, J. aptly sums it; “Cultures
value repair of damage to our persons and property, security, dignity,
empowerment, deliberative democracy, harmony based on a sense of justice
and social support. They are universals because they are all vital to our
emotional survival as human beings and vital to the possibility of surviving
without constant fear of violence”. (2006:64).
Finally the Borana value the reparative aspect of their indigenous justice as
the idea they have of it is in line with how Melton explained its principles:
Reparative principles refer to the process of making things right for oneself
and those affected by the offender's behaviour. To repair relationships, it is
essential for the offender to make amends through apology, asking
forgiveness, making restitution, and engaging in acts that demonstrate a
sincerity to make things right. The communal aspect allows for crime to be
viewed as a natural human error that requires corrective intervention by
families and elders or tribal leaders. Thus, offenders remain an integral part of
the community because of their important role in defining the boundaries of
appropriate and inappropriate behaviour and the consequences associated
with misconduct. (2006).
The two FGD discussions of men and women variously in narrating or
explaining the relevance of the customary justice, point out the fact that unlike
in the formal courts systems, the offender does not have to be jailed and
locked away from his/her responsibilities as a parent or other duties. But still
remains part of the community after he/ she is fined or forgiven and continues
with life as member of the community.

4.3.2 The Restorative Aspect of the Indigenous Justice

According to Lemley and Russell ( 2002), “Restorative justice is a relatively
new paradigm that is gaining increasing support from criminal justice
practionaires and the attention of researchers” while as a ‘policy paradigm’ it

34
may be new, especially to the states, that are rediscovering the significance of
the restorative justice, in some cases mostly to ‘decongest the prisons due to
costs of keeping misdemeanour offenders in prison’( ibid, 2002), restorative
justice has been a way of life for traditional and indigenous societies around the
world for centuries, in resolving conflicts and crime in their midst to maintain
communal cohesion and harmony.
The retributive systems usually associated with the formal justice systems
sees crime as offence against the state and “the state has an active role in
ameliorating the effects of crime and its causes through incapacitation,
deterrence and retribution. Offenders have a passive, defensive role, with
victims and communities generally playing no direct or active role” (Lemley
and Russell, 2002) on the other hand, “Restorative justice, views crime as an
offense against people and relationships and an offence creates an obligation to
make things right” (Zehr, 1990). Restorative justice engages actively the
offender, the victim and the community to have participatory solutions to the
crime and have joint – communal understanding of the obligations of the
crime. This participatory approach is meant to address “reparations for victims
from offenders and reintegration of both within the community” (Van Ness,
1996; Zehr, 1990), through mediation that helps foment reconciliation between
the victim, offenders and the community. “The community had an interests in
and responsibility for addressing wrongs and punishing offenders. Offenders
and their families were required to settle accounts with victims and their
families” (Lemley and Russell, 2002). As such the overall purpose of seeking
restorative justice in the community is through “vindication and reparations to
restore a disunited community” (Van Ness and Strong, 1997).
The Borana as a community value the structure of their relationships and
continued cohesion of the wider community, hence any form of threat to the
Nagaa Borana is dealt with amicably and jointly as a community through a
reparative and restorative justice, which according to Bazemore and Walgrave
is “an overarching paradigm of public problem solving, citizen participation
and a collective responsibility for building stronger communities” (1999).
According to the formal justice systems, the verdict of imposing a monetary
fine or committing to jail sentence of the guilty serves only to remove the
criminal from the society for a while or the fine imposed will be deterrence for
future criminal activities. However this may “appease the victim, but it is not
clear how it benefits and heals the victim or the community… retribution
whether it is monetary or otherwise, lacks a rehabilitative quality and fails to
address the pain and suffering of the victim that was inflicted on them by the
perpetrators” (Buckley, 2006: 14). It is interesting that some western countries
are also beginning to see some value in the restorative justice systems as the
formal retributive systems which are deemed to be ‘correctional’ may in fact
not actually be yielding these desired corrections of the offenders. Thus some
scholars are calling for considerations of these customary indigenous justice
systems:
In American society, there is no remorse. Remorse appears to be left to the
victims and their families. A civil judgment is paid and business goes on; a
punishment is meted and the remorseless criminal ferments his hatred in
prison for years. How the remorselessness and the victimization collectively

35
 affect America is something worthy of exploration. emphas[is] on group
unity, reconciliation of individuals or groups, and peaceful reintegration into
the community. This process aims to achieve a “return to social harmony.”
(Shinn, 2005).
The return to ‘social harmony’ Shinn refers to is what the indigenous
institutions have sought to maintain through their restorative justice system,
which sought to reintegrate and restore the offender back into the community,
through consensus, admission of guilt and apology. The restorative justice
ensured that the offender, the victim and community are all engaged so that
the mutual cohesion is restored, while at the same time the offender has been
made to accept guilt. Restorative justice also ensured that the burden of shame
and guilt is shared among the community and the victim suffering and pain
also becomes a communal pain:
In contrast to the one – dimensional focus on punishment or treatment,
restorative justice is best served when there is a balanced response to the
needs of citizens, offenders and victims. It is based on the assumption that
basic multiple community expectations - to feel safe and secure, to ensure
that crime is sanctioned and to allow for offenders to be reintegrated –
cannot be effectively achieved by an insular focus on the needs and risk
presented by offenders. Rather, to meet these needs and repair the harm
crime causes, victim, community and offender must be viewed as clients of
the justice systems and must be involved meaningfully as co participants in a
holistic justice process. ( Zehr, 1990)
Finally the customary indigenous justice as a communal system that seeks
to maintain mutual coexistence in the society does not just let the offender free
after his apologies or payment of imposed fines. But checks and balances are
put in place to ensure that the offender is integrated and as much as possible
desists from committing the crime again. “For the offender, restorative justice
requires accountability in the form of obligations to repair the harm to
individual victims and victimized communities and it provides opportunities
for the offender to develop new competencies, social skills and the capacity to
avoid future crime” ( Bazemore, 1996). Every adult man and woman of the
community is expected to at least have knowledge of what has potential to
disrupt Nagaa Borana and desist from the same or seek amicable redress before
engaging in acts that violates the customary norms. As one tribal judge
recounts, “we would involve different elements of our society—the chief, the
warrior societies, the families, the clan, the medicine man, and so on—in the
resolution of the problem. Laws were not made by an institution such as a
legislative body but by the normative power of the entire society. Each
individual knew what was prohibited...” ( Vicenti, 1995).
According to the Senior Elder A, the checks and balances of the customary
justice include the fact that repeated offences can lead one to be banished from
the Borana. This is to be cut off from society if one has proved to be deviant
and is not working towards promotion of Nagaa Borana. The consequences of
the banishment can be very severe in that, this deviance trait in one person will
affect the entire clan lineage of the offender as they have to live with the
embrassement, shame and guilt of the deviant, hence compromising integrity
of so many people related to or close to him/her. Thus it becomes the
36
responsibility of every responsible Borana to make sure that at all times the
offender does not get back to the crime again.

4.4 Tensions between customary justice systems and formal

statutory systems of justice
This section continues the study analysis and will focus on the tensions that are
apparent between the customary justice and formal statutory conceptions of
justice and how these conceptions have affected policy choices of the states
towards the indigenous people. The analysis also on the basis of secondary
data and interviews with the study respondent’s analysis what middle ground or
a balance between the two justice institutions can be there that can be
navigated to promote a ‘legal pluralism’ that serves to promote the interests
and aspirations of the indigenous people while at the same time meeting the
state’s constitutional thresholds of rule of law that applies to all citizens of the
state.

4.4.1 Some government policy choices are in tension with

indigenous customary ways
How the state conceives the indigenous people has direct correlation to the
policy choices they make to improve their welfare and provide legal framework
that guarantees them the entitlements of being citizen within their particular
realities. However the reality is that all the conventions and treaties at
international, regional and national levels as concerning the indigenous people
may just be ‘the paradox of empty promises’ ( Hafner and Tsutsui in Morgan
2007: 109). Though the approach may be changing of late, the government and
even some development organizations have been working to change the ways
of the indigenous lifestyle, their socio –economic dynamics to conform to what
has been considered a ‘progressive modern’ culture. The enforcers of this
‘modern’ culture see the indigenous ways as not being in tandem with the
times, hence there is not adequate legal frameworks that identifies who this
indigenous people are and what legal frameworks will serve there
circumstances better. It was this lack of legal recognition that made an East
African Pastoralists representative before a UN Working Group on indigenous
populations in May 2000, to sum up the general lack of recognition of
pastoralist property and ways of livelihood:
In our societies the land and natural resources are the means of livelihood,
the media of cultural and spiritual integrity for the entire community as
opposed to individual appropriation. The process of alienation of our land
and its resources was launched by European colonial authorities at the
beginning of this century and has been carried on to date after the attainment
of national independence. Our cultures and ways of life are viewed as
outmoded, inimical to national pride and a hindrance to progress. (In
Parkipuny, 1997: 46)
For any development policy to be meaningful, it has to begin with the
understanding of who the indigenous people are, what are their aspirations and
values and how these value systems can be integrated into the state
37
development policies that is not necessarily counterproductive to these values
that indigenous people cherish. It is lack of appreciation and understanding of
this indigenous dynamics that make the unpopular impressions that indigenous
people are opposed to development or any meaningful progress and are
occupied with the preservations of status quo. While in fact the indigenous
want a development that identifies and addresses their peculiarities as Seton
observed:
Indigenous nations do not simply oppose modernization or progress. Instead,
they assert the right to define and pursue development and progress in a
manner compatible with their own cultural contexts. They champion the right
to choose the scale and terms of their interaction with other cultures. In order
to achieve and secure cultural, political and economic rights, sovereignty and
self-determination … have become some of the most important values
sought by the international movement of indigenous nations. (1999).
The international movement Kathy Seton refers to above have made at
least the awareness of indigenous peoples plight to reach the international stage
which was climaxed by the ratifications of the Declarations on the Rights of
Indigenous Peoples ( UNDRIP) in 2007. This declaration has spurred other
major regional and national frameworks for indigenous people’s rights
recognitions, though of course the reality on the actual operationalization of
the treaties and conventions is debatable. Though the states may not actually
be translating the rights of the indigenous peoples as they should, an
encouraging development is that the indigenous people have become self –
conscious and are demanding the recognition of their customary ways and
appropriate development designed on those understanding. This is what was
described by Oomen as, “It was an era which saw the new global systems
described as ‘a culture of cultures’, in which culture – cast in rights discourse –
became the prime language in which a multifarious mix of sub and trans –
national polities took on the nation –state and saw its demands for ‘group
rights’ and ‘cultural rights’ met by it”. (2005: 21) She goes ahead to qualify her
observation by stating that,
Of late there is an increasing consciousness of the tribal people, first nations
– others say indigenous peoples, chiefdoms, unrepresented people or even
minority nations asserting their claims to have ‘sovereignty’ in the exercise
and expression of their own culture, language, and chieftainship. Most of the
states and at least the democratic states are responding to them. (ibid: 21)
Kenya in her new constitution of 2010, recognized for the first time the
protection of the ‘minorities and marginalized’ people, a term that Kenya
prefers to use to refer to the ‘indigenous people’. Article 56 of the new
constitution states that:
The State shall put in place affirmative action programmes designed to ensure
that minorities and marginalised groups— (a) participate and are represented
in governance and other spheres of life; (b) are provided special opportunities
in educational and economic fields; (c) are provided special opportunities for
access to employment; (d) develop their cultural values, languages and
practices; and (e) have reasonable access to water, health services and
infrastructure. (Constitution of Kenya, 2010; Art. 56).
38
 One thing that this article still does not seem to address is the issue
concerning claim to property which for the ‘minority and marginalized’ people
includes the natural resources. Granted that every progressive constitution has
to guarantee the property of citizens, however the collective rights that is the
understanding of indigenous people’s property ownership is not included. As
Makoloo stated “Most of the laws in Kenya are modelled to allow individual
claim but not collective rights yet group identity is an essential feature of the
indigenous identity” (2005: 20). These are the issues that cause tension as
policies based on this understanding will obviously contradict the tenets of
communal obligations and ownership claim principles of indigenous peoples.
Just like any other indigenous people group the Northern Kenya Borana
“… don’t see two legal codes at all. The ‘customary’ legal framework is not
seen as law at all, but as a way of life, how people live — State Law on the
other hand is something imposed and foreign. ... It is remote, in a foreign
language and has little to do with most people’s lives … Legal pluralism isn’t
about different laws — it’s about a different world view.” (J. Adoko and S.
Levine, 2009:102). This different ‘world views’ is the cause of the tension and it
is the one that makes the indigenous communities feel some government
interventions are more of an interference than a form of solutions to their
problems. An example is the range management tenure, while the government
considers the land a ‘Trust Land’ and can thus appropriate it at will, for the
community it is their rightful inheritance over which they should have un
challenged rights and claim as their Communal NRM regimes are based on
‘‘rights that are transformed through social rather than legal mechanisms, the
legitimacy of which is rooted in tradition rather than legal statute’’ (Grigsby,
2002:152).
The other contentious range resource based policy that really surprised
them when I brought it to the attention of the FGD just to get their reaction
was the section 3 of the Water Act 2002. The Act in an apparent lack of
appreciation or considerations of different understanding and
conceptualizations of ownership concept, that almost all rural Kenya
community and especially the indigenous communities ascribe to, bestows the
ownership of the water to the state and the right to use water in the minister,
(Mumma, 2005:22). Granted that water is a scarce commodity in Northern
Kenya, it is however a very emotive issue due to the cultural significance
attached to water and the fact that pastoralist life literally revolves around
water. To control water just like anywhere else in the world is to wield
immense power between life and death. This subject generated a lot of debate
in the 2 FGD. One woman in the female FGD retorted “How can someone sit
in Nairobi and claim the right to manage all the water?” (FGD 1) In the second
FGD of men, one man pointed out rather amusingly “let the minister come
here and say all the water of the wells and pans are mine, we shall ask him
where he was when our fore fathers fought to defend this wells” (FGD,2)
Granted that some of this statements from the FGD, point to some
limited understanding and ignorance of what exactly is the legal meaning and
implications of the ‘The right to use water from any water resource is vested in
the Minister’ statement, it nevertheless shows how the community perceive any
form of imposed legislations that attempt to deprive or challenge their rightful
39
ownership and claim. Such arbitrary legislation without the input of the local
communities is the causes of conflicts as observed by Constantinos:
Conflicts also arise when local traditional practises are no longer viewed as
legitimate or consistent with national policies or when entities external to a
community are able to pursue their interests, while ignoring the needs and
requirements of local people. In the conflicts that ensue often between parties
of very uneven power, it is not only the environment that suffers but also the
whole society. (Constantinos, 1999: 24)
Finally the process and procedures of justice too is conceptualized
differently, hence a possible source of tension with the indigenous people.
“Because one of the principle objectives of customary justice systems is
governance rather than dispute resolution, they do not administer justice
through a specialized system of rules, but as part of a process where politics,
law and other factors blend in ways that would be unthinkable in a state court”.
(AU: 23). This position is true for the Gada indigenous justice where elements
of divine intervention and preservation of Nagaa Borana is among the key
principle reasons why the disputes or conflicts have to be resolved as soon as
possible, but the severity of the case or the harm caused to the victim is often
of secondary importance. This is obviously a position that any statutory court
will challenge.
What I have discussed in this section is an analysis of how the state has
failed to understand the identity, uniqueness and socio –political dynamics of
the indigenous peoples, hence formulations of policies that contradicts their
unique ways of life. The state has to engage them meaningful in any
developmental interventions to reduce the chances of tensions that may arise
so as to make the indigenous customary justice systems of conflicts resolutions
and range resources management relevant and meaningful to their self-identity
as a nation.

4.4.2 Legal Framework Tensions

Following the above section analysis that highlighted the tensions that may
arise due to state policy choices that may not adequately represent the
indigenous customary ways, the study will now narrow down to what has
actually informed the study; the possibility of indigenous justice institution
functioning within the formal statutory justice regimes. The answer to this
can be yes and no, this must be baffling as the law is not supposed to be
ambiguous. The reality however is that whether the formal statutory systems
accommodate the indigenous justice systems or not, they are both very active
and operational. So this section intends to bring the two together, analyse the
common aspirations, the divergent points and how to marry the two to have a
balanced middle ground approach that accommodates both formal and
indigenous systems to address the special circumstances of the indigenous
people without compromising the importance of the national legal frameworks
to them.
For a start, there has been a form of failure by the states to understand the
dynamics of the indigenous people of Northern Kenya and their pastoralism
ways of livelihood. These failures to understand their ways is mostly behind the

40
formulation of policies and legislation that is often in conflict with their
customary ways. The misunderstanding started with the colonialist as the
African Union policy paper on pastoralism reported;
Pastoral development policy in British colonies, mainly Kenya, was influenced
by the widely held view that pastoralism using communal rangelands was
inefficient, with low productivity, and perceived environmental degradation.
Thus, a sedentary life was imposed on pastoral communities, confined on
permanent rangelands where they were supposed to benefit from public
services more easily. Pastoralists were stripped of their property rights on
large portions of rangelands, which were given to the British colonial
administration for ranching. These negative views on pastoralism were
misguided but proved to be remarkably persistent, with apparently
unproductive pastoral land still being appropriated up to the modern day.
(AU, 2010: 13 -14).
For the Northern Kenya Borana this lack of recognition of their
customary ways of governing and managing their resources and specially
conflict resolutions is coupled with lack of development in the region,as
pointed out by Chopra: “The state apparatus in the region is weak and largely
unable to prevent, respond to or resolve these conflicts. In particular, judicial
institutions lack the capacity to try perpetrators and the presence of courts has
little deterrent effect. The most prevalent problem which undermines their
work is the failure of official laws and legal processes to reflect an
understanding of the local population in defining crimes and resolving
conflicts.” (2008:12). The understanding of what constitutes a crime and how it
should be adjudicated within a particular society is an important basis for
effective justice. But when “Legal framework treats all acts of violence as
crimes against the state, and by doing so gives minimal attention to the needs
and conceptions of justice that the victim or victims have”( ibid: 32), then the
understanding and conceptualizations of justice by the indigenous people is
obviously not taken into account.
This apparent lack of inclusive legal frameworks goes against the local
understanding of justice and how they execute the same through their
customary ways. This has of course occasionally led to a collision with the state
laws as “The state promulgates laws that are not compatible with local
livelihood patterns and practices, while simultaneously rendering many of
those practices illegal. Caught between what is authorized by the state and what
is necessary to survive, local resource managers continue to do what they
perceive as necessary, yet they are exposed to state repression or predation.”
(Benjamin 2008: 2256). This scenario described by Benjamin plays itself in the
Northern Kenya region, where the land which the community claim to have
rightful ancestral rights over has been placed under ‘Trust Land’ legislation and
the government has the sole authority to appropriate it at will without
consultations of the locals.
The judiciary official with whom I had brief discussion confirmed as much
to me when he stated that:
If the community uses their customary systems to resolve conflicts and
determine how to utilize their range resources we do not interfere, but if the

41
 case comes to the court, we follow the spirit and letter of the law to
determine the case. We do not have provisions to refer cases to customary
elder’s courts. However, we have had occasions where the parties agree to
withdraw the case after pressure from clan members or elders to have the
case withdrawn from the court so as to settle them through their customary
ways, which we do not object unless the crime involved is of serious security
threat ( Moyale, Judicial official )
The NGO’s and civil society actors in the region on the other hand
support the customary justice systems and see it as a sustainable and more
relevant conflict resolutions regime that sufficiently represents the
communities conceptualizations of justice that serves as efficient and cheaper
Alternative Disputes Resolutions options for them.

4.4.3 Easing the Legal frameworks Tensions- towards a balanced

legal plural approach
Among the Borana of Northern Kenya, there is still active reliance on the
customary means of conflict resolutions and preventions. The customary
justice regime enjoys much support and trust of the community than the
formal justice systems. At the men and women FGD, I posed questions on
what are some of the reasons that are making them still rely on their customary
means to claim justice in case of disputes or conflicts. Among the reasons
given are; that the formal courts process is alien to them, is not easily
accessible, they don’t understand the language and ways of the courts, it is time
consuming and very expensive, it is subject to corruption and justice can be
compromised by the highest bidder, we have our elders who resolve cases
hence going to court is undermining our institutions and finally the courts
don’t help to restore the broken relationships, the jailing of the offender make
the situation even worse as it can cause more suffering to the family of the
jailed person. One woman from the female FGD, gave an example of a bread
winner man who is jailed and paused “the sufferings of the children and family
because of the bread winner serving jail term, will be blamed on the person
who took him to court” ( FGD, 1).
From this situation, we see a community who will look up to their
customary justice institutions for a long while to come as the conceptualization
of justice by the two systems are radically different as observed by Melton in
giving reasons why indigenous community in the America may not embrace
the formal justice soon:
Conversion to the American justice paradigm is a difficult choice for tribes,
particularly those with a functional indigenous justice system. For many, full
conversion is not possible because the indigenous justice paradigm is too
powerful to abandon. The strong adversarial features of the American justice
paradigm will always conflict with the communal nature of most tribes. For
this reason, the inherent restorative and reparative features of the indigenous
justice paradigm will continue to be more appealing to the majority of tribal
people. (2006)
Both formal and customary justice are serving their respective constituents
well depending on how each conceptualize justice, hence there is need for both
42
to accommodate one another and co –exist for necessity. It is to bridge this
challenges that scholars have proposed different approach that will help ease
the tension between the two frameworks and allow co –existence. Different
theorization on ‘Legal Pluralism’ (Pimentel, 2010 Von –Beckaman, 2001)
‘Decentralization’ ( Ribot, Benjamin), ‘Nesting’ ( Ostrom, 1990) have all been
debated upon so as to have a legal framework that accommodates both of this
to help in realizations of justice and management of natural resources.
There are of course challenges to the validity of legal pluralism, it is not to
be assumed that it has gained acceptance across all the states of the world,
though definitely progress is being made to make this recognition a reality –
especially after the adoption of the UNDRIP in 2007. To stress this challenges
to the ‘legal pluralism’, Pimentel points out that “--- the reform and
development winds are blowing against them, particularly on what have
become non –negotiable issues of human rights and rule of law” ( 2010:36).
Almost on the same note as Pimentel, a legal pluralist scholar Von Benda –
Beckman raises a very important concern to set in motion a discussion among
the legal academia:
In my view, the crucial issue in discussions about legal pluralism, and the one
distinguishing it from the common discussions over the concept of law, is
whether or not one is prepared to admit at the conceptual level the theoretical
possibility of more than one legal order, based on different sources of
ultimate validity and maintained by forms of organization other than the state,
within one political organization (Benda-Beckmann 1997).
As if in response to Von Benda –Beckman concern, Pimentel while
rooting for ‘limited judicial enforcement of constitutional guarantees’ for
customary laws argues that; “Legal pluralism regime, customary courts and
customary law can become guardians not only of traditional culture, but also of
human rights and rule of law principles. And they will be all the more effective
in this later enterprise because the systems are home –grown, culturally
appropriate and embraced by the communities they serve” ( 2010:36). At
times of course the reality may be different as conflict between the state law
and indigenous customary law do occur especially when it comes to rights over
natural resources allocations. In such circumstances, Benjamin, E. offers a
compromise when he suggests that “From this perspective, apparent
incompatibility of state law and customary law is not sterile; individuals and
communities regularly navigate the space between them and find workable
solutions” (2008: 2265)
For indigenous communities to be fully in charge of their local resources
and management NRM scholar, Jesse Ribot proposes a concept of
‘Decentralization’ as he believes that this decentralization serves well as a form
of ‘Alternative Disputes Resolution’ in resources management. Though, he is
of the idea that this ADR institution is to be only an ‘alternative’ but not to
replace the central government judicial systems.
Local dispute-resolution mechanisms, accessible courts, and Channels of
appeal outside of the government agencies involved are needed to facilitate a
smooth transition from central management to decentralized systems of
environmental governance. Setting up official adjudication systems is the
43
 responsibility of central government. Alternative dispute resolution
mechanisms designed to supplement, but not replace, a fair judiciary can also
be enabled by central government and supported by communities, donors,
and NGOs ….” (Ribot, 2008: 2256)
There is need for mutual co –operation and understanding to create
linkages between the statutory and customary institutions that will create a
synergy between the state institutions and local populations. This synergy will
eventually lead to improved effectiveness of the natural resources management
(NRM), which will eventually address the gender, ethnicity and social status
based inequalities in terms of framing, claiming and realizing justice for access
and utilization of the range resource.
The study has shown that the Borana of Northern Kenya have continued
to depend on their customary systems for dispensation of justice and it has
served them well. The formal justice system of the state, in this case Kenya
need to engage this customary justice institution constructively and
meaningfully to provide a formal recognition framework for it, so that its
decisions on resources management tenure and conflict resolutions are binding
upon the state or any other party.
Finally the ideal engagement of the two justice systems through Legal Pluralism
is because to use the words of Pimentel:

legal pluralism continues to offer great promise, both for the preservation of
cultural values and institutions, and ultimately for the establishment of the
rule of law, but only if the indigenous legal systems can be engaged in a spirit
of mutual respect … customary law can and will evolve, not through
amendment - the way western law is changed, but influence form both inside
and outside the community. This flexibility should be embraced not
extinguished (2010: 36).
This engagement proposed by Pimentel is to foster a working relationship
between the two legal systems. Failure to bridge this relationship gaps will
undermine the roles of the two legal systems in discharging their respective
justice dispensations as “The unresolved relationship between rule systems
with different sources of legitimacy—legal pluralism— undermines both the
authority of nascent local governments and the performance of customary
institutions. The manner in which legal pluralism is resolved plays a central role
in shaping state-society and human-environment dynamics that emerge from
decentralization” (Benjamin, 2008: 2256).
The concluding chapter will summarize all key arguments of the study and
answer the research question that informed the study.

44
Chapter Five: Conclusion

"Good people do not need laws to tell them to act responsibly, while bad people will find a
way around the laws." (Plato in Buckley, K. 2006:9).

This study sought to answer the question; how do the Borana of Northern
Kenya realize justice through Gada indigenous institutions in resolutions of
conflicts over range resources? The study has shown that conflicts over range
resources among the pastoralists of Northern Kenya has historical and
contemporary dimensions of policies that has contributed to shrinking range
resource base. This has led to conflicts becoming more frequent as
competition among the communities intensifies. In the absence of efficient
government services including the judicial services in the region, the Borana
community has continued to rely on their age old indigenous institutions in
resolving conflicts over the scarce range resources. The indigenous justice
institution ensures restorative justice is dispensed timely and in ways that are
acceptable and understandable to the community. The justice institutions have
checks and balances, where disputes can go from lower level lineage or clan
courts to the highest possible level the Gummi Gayyo, where the highest official,
the Aba Gada and his senior councillors adjudicates over the case. Another
feature of the customary justice system the study found, is the fact that the
customary laws keep evolving as during the eight year pan Borana assembly of
Gummi Gayyo, the laws are revisited and amended or remade as is necessary,
hence reflecting the reality of the contemporary challenges. Besides, to uphold
the integrity of the customary justice regime, errant customary officials or
elders who engage in malpractices that undermine the course of justice are
removed from offices through public decrees popularly known as Murra harka
fuudhani or Buqissu. The person over whom this decree is made is not allowed
to arbitrate in any case until he mends his ways and seeks community
forgiveness for his errant deeds and settles the required penalty.
Further the community choice to continue to rely on their indigenous
justice regime is because, it is reparative, is obligated to be holistic to include
victim, offender and the community to restore relationships through
acknowledgement of guilt, forgiveness, restitution and compensation as
necessary to restore the broken relationships as “the idea is that the value of
healing is the key because the crucial dynamic to foster is healing that begets
healing. The dynamic to avert is hurt that begets hurt” (Braithwaite and Strang,
2001:7). This is based on a principle Pranis, terms “earned redemption – an
approach that allows offenders to make amends to those they have harmed to
earn their way back into the trust of the community” ( in Bazemore, 1998:770).
The indigenous justice upholds the community values and promotes their ways
of resolving the conflicts and managing their range resources.
To the community the formal justice systems is seen as mostly
adversarial, focussed on the individual, is punitive, retributive and does not
uphold collective consensus justice but imposed justice based on written
statutes which is completely out of synch with the community used to be
guided by customary traditional justice dispensation regimes.
45
 The different conceptualizations of justice and what constitutes a crime
between the customary and state institutions has led to some tension which
needs a form of legal framework that supports these different
conceptualizations. The concept of communal range resources ownership is
also not supported in the Kenya constitution which has led to continuous
appropriation of pastoralists lands without their consents. This continues to
deplete their range resources base which escalates conflicts among the Borana
themselves and between them and other pastoralists communities in the
region. To overcome these tensions the study findings indicate that the
government needs to consider the legal plural framework legislations that will
legitimize and uphold customary resolutions and the common range resources
ownership rights of the community.
This recognition and grounding of the same eventually in a legal pluralistic
paradigm will forestall an eventuality which Hardin (1968) calls “The Tragedy
of the Commons”. As the range resources of the pastoralists will be governed
and managed within a legal framework of the state in recognition of the
customary ways of conflict resolutions, range resources ownership and
governance with decisions and resolutions over the same that are binding upon
the state in this case Kenya.
The legal pluralism framework from the study findings, will hopefully be
made possible through ‘Decentralization’ (Ribbot, 2008) which will eventually
complete the ‘Virtuous Circle’ (Braithwaite, J. and Strang, H., 2001), where the
indigenous restorative justice institutions as ADR, the state authority and civil
society will work together for a just, sustainable and conflict free utilizations of
fragile pastoralists ecological range resources.

46
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Appendices

Annex A: Study Participants and Activity details. (July –

August 2011).
No. Participants. Background. Interview
Date
2 Senior Elders, Very Senior Elders – one from South Ethio- 12th July, 2011
A&B pia, one from Moyale Kenya. Both inter-
viewed in Moyale – Kenya.

2 Elders Elders – Not as old as the first two, but rela- Elder C, 16th
C&D tively mature experienced elders. ( one in July.
Marsabit and one in Isiolo) Elder D, 14th
August.
2 FGD Focus Group Discussion ( FGD) Women FGD
FGD 1 & 2. 1 of 6 women in Moylae (FGD,1) -18th July.
1 of 14 Men in Marsabit (FGD,2) Men FGD 15th
August.
3 District Water officers – Marsabit, Moyale Moyale, 19th
and Isiolo July.
Marasbit, 16th
August.
Isiolo, 22st
August.
3 Peace Committees chairpersons – Moyale, Moyale, 19th
Marsabit and Isiolo. ( all men) July.
Marsabit, 19th
August.
Isiolo, 22nd
August.
4 NGO officials – 2 in Moyale and 1 in Isiolo Garissa, 12th
and 1 in Garissa. July.
Moyale, 16th
July.
Isiolo, 23th
August.
1 District court official - Moyale 14th July, 2011.
2 Home guards security – informal discussions Marsabit, 20th
in Marsabit. August.
Personal visits 1 water well in Marsabit Well visit 18th
2 water pans in Moyale. August.
2 Pans visit, 20
-21 July.

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 Annex B: Borana Clan Structure

Moie- SABBO GONNA

ty

Sub - DIGALU KARRAYYU MATTARRI FULLELLE ARORESSA

Moie-
ty
Nurtu Barre Wate Norro Metta Dachitu Arusi
Clan Tuftu Godi Walabu Rasa Gadulla Oditu Awatu
Udumtu Didimtu Jartu Kojeja Dorrani Machitu Karchabdu
Walaji Mante Wayyu Kodelle Mankata Galantu Warra Jidda
Daddo Danka Maye Sunka- Karaza Sirayu Maliyu
Aru Hiyyeyye Umuru na Kuku Bachitu Dambitu
Ilu Sibu Holle Abbole Garjeda Konitu Nonitu
Molu Salalu Gaddu Hajeje
Bokku Obole Siba
Gambura Mulata Konso-
Dano- Wale Kula- ta
Gaguru Korme Uchota
Junno Badi Currota
Libano Itu Wamaji
Kollitu

Source; Legesse, 1973: 34 -44, Arsano, 1997:28

Annex C: Borana Common Property Range Resources.

Common Access, Use, Obligations, conditions.
Property
Range Re-
sources.
Obviously a vital resource for pastoralists’ survival.The water tenure of the Borana is well structured and everyone
Water knows his/her rights and obligations on access, care and maintenance of the water sources. Sources include wells, pans,
and natural collections in pools during rains. Aba herega, Konfi, well councils manage the sources as per Aadda Seerra Bissani.
Every water user is obligated to communal routine maintenance works of water sources.
All Borana are entitled to the access and use of pasture on equal basis in any part of the Borana land. The only limiting
Pasture factor is that there must be an assured source of water supply in the same area as where pasture is accessed. If water is
not assured then one may not access the concerned pasture zone. There are also wet season and dry season grazing
rules governed by the Dheedha Council. Violators of course face the law. A private small pasture fencing around the
homestead for young calves and sick animals called Kallo is allowed.
Land is a collective communal property for all Borana. The Gadaa, upholds this virtue and emphasis at all times that
Land this should be the case. The Borana land, has of course shrank over the past two centuries, due to expansions of other
pastoral communities with covert support of the colonizing powers and incoming government regimes who carried out
hapzard demarcations that did not consider the Borana territorial rights.

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