Download (pdf) - iwgia

the people of the ancient laws that relate to peace.
Customary law (aada) encompasses religious, judicial
and cultural aspects of Borana and Gabra life
and is widely respected. The messages of peace travelled
from the councils to spiritual leaders, judges
and clan leaders (jalaab), and on to men and women,
herders, townsfolk, elders and youth. The messages
moved from one person to another in the form of
daimtu, a conversation the basic form of which is to
ask “Do we have peace?” in order to remind the other
that, “We should have peace” and to ask, “How
can we have peace?” (Pastoralist Shade Initiative,
2010).
Among the indigenous pastoralist communities
of northern Kenya, elders have unarguably been the
vanguards of peace. The elders are able to hold this
position because of their control of access to resources,
being part of a network of clan/ethnic structures
and because they command respect and legitimacy
on account of their age (Kratli & Swift, 2000). Elders
are still regarded as the custodians of cultural norms/
practices as well as being the depository of knowledge
and cultural heritage (Makumi Mwagiru, 2001).
Among the Oromo, of which the Borana are a part,
elders form a dominant component of the customary
mechanisms of conflict management (Watson 2001).
Over a four-year period, as part of the Pastoralist
Shade Initiative (a peace-building NGO registered in
2008 whose Board comprises nine elders representing
pastoral communities), elders from the Gabra
and Borana communities continued to pass on messages
and hold meetings, including in places where
people did not want or believe in peace. Finally,
when they were confident that agreements had
largely been reached, they called pastoralists, politicians
and officials to public peace gatherings. The
gatherings were held on pastoralist terms, according
to traditional rules. One by one, in a series of meetings,
each built on the last to confirm and expand the
area that was at peace. By June 2009, the fighting between
Dillo and Dukana villages had come to an
end. By July, the peace had extended across Chalbi
and North Horr, in a meeting at Maikona. By August,
it had embraced Turbi, Rawan, Walda and
Sololo, places where politics and insurgency had
complicated the situation and weakened leadership.
The “Maikona Declaration” is a short agreement
prepared at Maikona, a small dusty town about 700
kms north of Nairobi, and signed by Gabra and Borana
representatives. It sets out the specific laws that
relate to keeping the peace. After agreeing to accept
ebb, a blessing that permits an amnesty for the traumatic
histories of the war, the people agreed to revive
the implementation of traditional laws. This
involves a combination of traditional and state justice
systems in which thefts and injuries are dealt
with by both systems of law, operating in agreement.
At the Walda gathering, the last in the series, District
Commissioner Chalbi had the Declaration written in
English and ordained that copies be pasted on administration
office walls across the district.
Social contracts such as the Maikona Declaration
and its predecessor, the Modagashe Declaration,
signed in 2001 between the Borana and Somali communities,
have had a great impact in terms of mitigating
conflict, in spite of the fact that they are not
legally binding. According to Chopra, “The declarations
and the work of the peace committees have
had a positive impact in solving persisting conflicts
in their areas. In Isiolo, for example… the number of
conflicts since 2001 has decreased due to these agreements.
The amount of cattle raids are said to have
decreased, more cattle are returned and less killings
occur” (Chopra, 2009). The dilemma presented by
traditional peace models is that, under indigenous
customs, some crimes - cattle rustling, revenge killings
or child abduction - are not necessarily individual
wrongs. Such crimes instead implicate the whole
community or clan of which the individual perpetrator
is a member. In ascribing punishment or recompense,
the community is therefore culpable and is
expected to compensate the offended individual
through his/her community structure. While this
communal responsibility is an important factor of
internal social control, implementing it under the
declarations is at odds with the norms of official
laws.
The Re-imagined Traditional Model:
the Wajir Peace Committee
Given the perceived non-compliance with formal
law of pure customary models of justice such as that
employed by the Borana and Gabra, more integrated
systems have been attempted. The Wajir Peace Model
that emerged out of the internecine resource-based
inter-clan conflicts of the 1990s was one such model.
Given the context in which this model was tested, it
was much less structured because of the immediacy
with which it needed to be deployed. The severe
drought of 1992 had decimated over 70% of the cattle
and 30% of the camels of the Somali community
in northern Kenya. Natural resource conflicts became
increasingly violent, with each clan seeking to
safeguard the fragile water or grazing resources.
20 Indigenous Affairs 1-2/10