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customary norms remain a lesser child of the law, a
position that undermines their growth, adaptability
and resilience.
Conflict, particularly mass violence, has been addressed
poorly by statutory law. This is largely because
mass violence generates a complex matrix of
breaches of criminal and civil law - land and political
issues - the sheer scale of the consequences of which
always leaves a residual effect that most legal systems
cannot adequately address. Moreover, although
capable of being resolved through notions of individual
culpability, conflicts also destroy community
cohesion, a domain that written law cannot adequately
nor immediately confront.
In what ways, then, have the customary norms of
indigenous communities contributed to conflict resolution
in Kenya, an area in which statutory norms
have been an abysmal failure?
Northern Kenya: Incomplete Statehood
The colonial government instituted the original policy
framework segregating the northern rangelands
from Kenya proper, creating the Kenya of the South
and North. The nomads of northern Kenya were
seen to be antithetical to the colonial enterprise because
of their geographic distance from the centre in
Nairobi as well as their livelihoods, which clashed
with the colonial imperative of settling communities
in order to extract value through modern agriculture
and taxation. In northern Kenya, the colonial government
legalized the use of military muscle and administrative
fiat to quell any pastoralist resistance to
the Pax Britannica, setting the foundation for the instrumentalization
of violence as the ultimate arbiter
in the region. Emergency laws passed immediately
after independence to quell the pro-Somali militia,
the Shifta, gave the new African-led government legal
carte blanche to combat the Shifta insurgency.
What began as a legitimate struggle for self-determination
quickly degenerated into widespread banditry.
The firearms remaining after the rebellion officially
ended, and the need to restock depleted herds,
accounted for the high levels of ensuing cattle raiding
and highway robbery. North-eastern Province
has been synonymous with insecurity ever since. Although
civil and political rights were enshrined in
the independence constitution, including freedom
from arbitrary arrest, torture and extra-judicial killing,
communities in Kenya’s northern frontier were
exposed to flagrant abuse of these rights. Because of
the Indemnity Act enacted in the wake of the Shifta
war, action by security officials in the closed districts
of northern Kenya could not be challenged in the
courts.
During the 1990s, it became clear that conventional
methods of addressing conflict, through the
use of either brute force or formal judicial means,
were no longer capable of containing the north’s intensifying
conflicts. The opening up of the democratic
space in the country provided opportunities
for communities in the north to rethink new ways of
addressing entrenched inter-tribal/clan conflicts.
The answer was to seek resolution through the timeless
customary norms of these communities which,
although heavily undermined or manipulated during
the immediate colonial and post-colonial era
(Mamdani, 1996; Joireman, 2008), still remained relevant
as a legitimate means for resolving intractable
conflicts. In the case of northern Kenya, recourse to
either pure forms of or re-imagined customary institutions
appears to have been the only choice, given
the sheer non-existence or total unresponsiveness of
state-led dispute resolution mechanisms. Recent
studies indicate that formal courts in northern Kenya
are few, bureaucratic and often seen to dispense a
type of justice that is either too long in the coming or
has a retributive rather than a reconciliatory impact
on the individuals and communities in question
(Chopra, 2009).
Seeking Pure Customary Justice:
the Borana and Gabra Model of Peace
The Borana and Gabra pastoralist peoples of northern
Kenya and southern Ethiopia were engaged in a
violent conflict with each other that reached its peak
in the atrocities of 2005, even though these peoples
are closely linked linguistically, territorially and socially.
In what has become known as the Turbi massacre,
100 members of the Gabra community were
killed on the morning of July 12, 2005. During this
incident, attributed to the military wing of the Borana
community, hundreds of men armed with an assortment
of weapons, ranging from AK-47s and grenades
to machetes and spears, descended on the village
of Turbi with the aim of slaughtering as many
people as possible. Three days after the massacre,
with ethnic tensions still running high, the Roman
Catholic Bishop of Zica, Luigi Locati, was shot dead
in Isiolo, 300 kilometres from Turbi. With this conflict
taking on legal, political and economic dimensions,
political leaders from the region who had
hitherto been reluctant to engage each other launched
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