The Case of the Somali and Borana
The whole of the northern Kenya region has gone through a long history of ‘antagonism’ with the Kenyan government. The antagonism started during the Shifta secessionist war of the 1960s. Long after the end of the Shifta war, the government still holds the people of this area with great suspicion. In several occasions the government has sanctioned massive violence and rights abuse on the people of the region. The climax of these abuses were seen in the many massacres including the Bulla Kartasi massacre, the Wagalla massacre, Malka Meri massacre and Bagalla massacre, where the government allegedly indiscriminately killed thousands of people on suspicion of being bandits. The aftermath of these massacres remains to date and many people remain traumatized.
Conflict in the region
Conflict in the whole of the Northern Kenya is centered on competition for water and pasture. This competition is exacerbated not only by drought, but also by the state’s behavior, which alternates among neglect, a weak government presence, and intense security operations to make up for historical shortcomings. Between 1992 and 1994, two other factors contributed to a worsening of the situation: the collapse of the Somalia government in 1990, which led to a proliferation of arms through the already porous borders; and the fluidity of the Kenyan transition from authoritarian rule to competitive electoral politics between 1991 and 1992.
According to a United Nations Development Programme (UNDP) report 1996, while Borana and Liban zones in Ethiopia are prone to drought, adjacent areas in neighbouring Kenya and Somalia are even more likely to suffer from water scarcity. During times of complete failure of rainy seasons in northern Kenya and south-west Somalia, there are often apparent influxes of pastoralists from those countries into Ethiopia and vice versa searching for water and pasture. These situations lead to conditions where local people and ‘guests’, often related by trans-border kinship and sharing common languages and cultures, have to compete for the use of the few perennial water resources.
Customary Law and Conflict Resolution in Northern Kenya
The difference among societies is not whether conflict exists, it is how conflict is managed: whether conflict is managed in ways that lead to violence or in ways that open opportunities for innovation and positive change. In fact, the process of development almost invariably leads to conflict, as resources are reallocated according to new priorities and relations between social, ethnic or religious groups are altered.
In early 2005, the UN supported the government and civil society in developing and launching a programme on ‘Strengthening National Capacities for Conflict Prevention and Conflict Transformation in Kenya’. This programme focuses on building the capacities of provincial and local officials working with civil society to anticipate and respond to potentially violent conflicts.
The Kenyan government has responded positively to this support. The Office of the President has established the National Steering Committee on Peace-building and Conflict Management (NSC) comprising representatives from government, civil society, UNDP, and donors. In select districts in the more violence-prone areas, ‘peace and development committees’, consisting of local leaders, have been formed with the support of the UN and other partners. These committees assist the provincial administration in managing conflicts. Currently, the UN is supporting the members of the NSC with the drafting of a national policy on conflict management.
Hybrid local dispute resolution
some parts of the country where state 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. Kenya permitted the intermediation of customary law in redressing matters of a personal nature notably marriage and succession while criminal matters remained the negotiable jurisdiction of formal legal systems. The considered reason for this side by side ( dual) system of laws was that colonial laws were at great variance from the norms of communities that their blind adoption and replication would lead to a deeper confusion and collusion between the communities and the law enforcing agencies in the Customary law’s intervention is seen as addressing an area where ordinary criminal and civil sanctions have failed. They become particularly relevant in the North where belonging to groups is still a salient reality. The problem of this system has however been the inability of the statutes being unable to create space for redressing matters of a collective nature.
The Wajir Peace Model
In June 1993, some women drawn from the small well-educated and business elites in Wajir town were attending a wedding and began discussing how to arrest the violence that immobilized the district. The impetus was the realization that there were no winners in the two-year, low-intensity, but costly, clash between clans.
These women, drawn from different clans, agreed to work toward peace and formed a committee called Women for Peace to coordinate their efforts. Their initial activities included door-to-door canvassing for peace. They also facilitated a resolution by civil servants from various clans who, in continuing to work closely at their places of employment, contradicted the pervasive climate of inter-clan rivalry. These youthful (mostly male) civil servants came together to commit to peace and to working together as the Youth for Peace. The two initial groups—Women for Peace and Youth for Peace—formed the Wajir Peace Group (WPG). They later attracted the men and elders to what culminated to the Al-Fatah elders for peace this community realized they needed to wheel in government so as to rid away with the brutality of the government actions, grew to include the Government under the stewardship of the area D.C.
While the Women for Peace, Youth for Peace, and the Al Fatah elders work independently as separate entities, they are integral parts of the Wajir Peace and Development Committee. The WPDC, in turn, sits as part of the District Development Committee and the District Security Committee, both chaired by the District Commissioner. This gives the WPDC, which is a mix between a community-based organization (CBO) and a consortium of several government and NGO service units, a rather unique profile.
Eventually, ‘Peace and Development Committees’ (PDC’s) were established across the arid lands. They were created through bottom-up selection processes at the location, division and district levels. In some areas these initiatives were motivated by local communities, while in others – following successful examples – they were rather driven by external donors and NGOs.
The Wajir Peace Network has assisted neighbouring clans develop similar models to handle any uprisings of violence in the neighbouring communities. A classic example is the peace negotiated under the guardianship of the WPN in neighbouring Garissa between the warring Abudwak and Awlihan clans in 2000 and also between the Garre and Ajuran clans in Wajir North.
The Oromo-Boran Gaada system of Conflict Resolution
The Gaada system is an old institution developed for guiding the social, political, economic and religious life of the Oromo people in Ethiopia and Kenya (sic) and for managing resources such as water, as well as its contribution in conflict resolution among individuals and communities.
The traditional mechanisms of resolving conflicts and managing natural resources (i.e. water, land and forests) in the Borana zone is derived from the Oromo institutions of gadaa, Oromo institutions of aadaa (custom or tradition), seera (Boran laws), and safuu (or the Oromo concept of Ethics) and heera (justice) and the associated cultural administrative structure. Gadaa is a system of social organization based on age-grade classes of the male population that succeed each other every set number of years in assuming economic, political, military and social responsibilities. Every Oromo man of specific age-grade is expected to perform a certain function according to specified rules and regulations. The grades are also periods of initiation and training as well as periods of work and performance.
The roles and rules attached to the age grade system are the most important elements that regulate the gadaa system. According to gadaa, those people who have entered the Luba grade (individuals in the expected age range of 40–48) are considered to be elders. Therefore, the lubas (elders) settle disputes among groups and individuals and apply the laws dealing with the distribution of resources, criminal fines and punishment, protection of property.
In conclusion, the use of traditional dispute resolution systems has been very alive and so in the Northern Kenya. These institutions form rules and regulations that determine the access and the rights that a group has to natural resources. These institutions are supported by networks of kin, and institutionalized in meetings and rituals. Natural resource access is governed by the combination of these different institutions, which are also conflict-resolution institutions.