THE UNIVERSITY OF LEIPZIG

Customary law relating to use of biological resources has a great relationship with the
occurrence of specific events. For instance, the appearance of locusts, the delay of rains, the
death of specific animals, the outbreak and spread of epidemics and above all death of
people. These particular happenings are in most cases related to the destruction of certain
biotic species. For example, the killing of a given animal species or the cutting down of a
specific tree species which are related to the Luhya traditions. In an interview with an elderly
respondent, he recounted that: “In 1968, the killing of a cobra by a group of unknown people
led to a host of problems including unrelenting deaths in the community, a trend that took up
to a whole year”. 654
The concept of the “living dead” is a strong institution that has structured customary law in
Kakamega and specifically among the Luhya sub-tribes. There is a way biological life is
linked to the Luhya way of living and other institutional interchanges. There is a cycle of
seasons, occurrences and activities within the Luhya communities such as sowing, cultivating,
harvesting and hunting among others. Such key events are often marked by religious rites and
ceremonies. The unusual events which don’t rhyme within this rhythm of events, for
instance, the occurrence of locusts, the delay of rains, the death of specific animals and
rampant spread of epidemics, are interpreted to be bad omens requiring special attention from
the community, spearheaded by the council of elders. The observation to make here is that;
although unscientific explanations are used to account for the occurrence of such events, there
is usually an informal biological linkage annexed to such explanations.
In a way, some of the informal biological explanations are sysnonymous with some of the
scientific explanations to such “bad occurrences”. It is this linkage that forms an interface
between the local knowledge and the local biodiversity conservation interventions. Though
perceived differently, and not explained scientifically, the customary law among the Luhya
has a great deal of alliance with conventional scientific methods explaining why biological
diversity should be conserved.
The “laws” regarding the preservation of the cosmos and its cosmological interactions are a
clear manifestation of this. This brings us back to the complex issue of historical and
sociological institutional analysis. Institutionalists have been at war, debating whether
institutional analysis involves the recognition of different institutional paradigms sharing
common problems and the need to be resolved. Institutionalists like Campbell argue that, the
best way in which to describe institutional analysis and institutional change is to follow the
evolutionary pattern characterized by gradual accumulation of increased changes over long
periods of time. 655 In this sense, such institutions are characterized by prolonged periods of
either equilibrium or stability or evolution that are interrupted suddenly by a crisis that throws
it into turmoil until a new institutional arrangement is established. Such an institutional
arrangement then remains in equilibrium or evolves slowly for another longer period of time.
654 Key Respondent Interview No: 8. 6 July 2006.
655 Campbell, J.L. 2004. Institutional Change and Globalisation. Princeton: Princeton University Press.
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