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Customary Law and Conflict Resolution among Kenya’s Pastoralist Communities Abraham Korir Sing’Oei 16 Indigenous Affairs 1-2/10 16
Camels fetching water for a nomadic camp of Gabra people in Marsabit, Northern Kenya – Photo: Sue Cavanna Introduction: the Inevitability of Legal Dualism in Africa Law is the main device used by a state to regulate the affairs of its population in order to facilitate the orderly conduct of both public and private spheres. By historical circumstance or reasons of limited capacity, Africa’s post-colonial states have, by design, left certain areas of citizens’ behaviour outside the reach of formal law. Similarly, in some parts of the country where the state’s presence is minimal, traditional systems are permitted by default to exist side by side with a state-run justice system in order to reduce transaction costs. Historically, many African states, including Kenya, have permitted the intermediation of customary law when redressing matters of a personal nature, notably marriage and devolution of property upon death, while matters criminal remained the exclusive jurisdiction of formal legal systems. This is largely explained by the fact that imported colonial laws were at such great variance with the norms of African communities that their imposition would lead to more conflict and would further increase the cost of enforcing compliance. Hence, dualism, a hybrid legal space where more than one legal or quasilegal regime occupies the same social field, is a key feature of most African legal fields, including Kenya’s. While many legal positivists do not admit it, customary law in Africa has a stand-alone basis for its existence beyond merely filling in the gaps left by states’ legal devices. Customary law’s intervention is seen as addressing an area where ordinary criminal or civil sanctions have failed. This become particularly relevant in African society which, while increasingly individualized, continues to exhibit a collective impulse. Given the non-atomization of individuals in African states and the fact that belonging to groups is still a salient reality, there must be a place for the deployment of community mechanisms in addressing disputes that transcend the individual and have pervasive impacts on the group. Statutory law has appeared quite incapable of providing redress for matters relating to the collective. It is this area of intersection between the group and the state (Adejumobi, 2001) that is mediated by norms of customary law. Rather than appreciate the robustness of customary law in the African context, its place has always been subordinated not only to statutory law but also to the edicts of an amorphous matrix of “public policy, health and morality”. Regrettably, Indigenous Affairs 1-2/10 17
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