THE OPEN UNIVERSITY OF TANZANIA
RESEARCH PROPOSAL
PAUL T. WAHOME
REG. NO. HD/L/048/K.13
FACULTY OF LAW
TOPIC : Contribution of Legal Pluralism in Land Law to Conflicts and Violence in The Mau forest Complex Region.
DATE OF PRESENTATION: JUNE, 2012
Presented as partial fulfillment of the award of a Masters of Laws Degree of the Open University of Tanzania
TABLE OF CONTENTS
TABLE OF CONTENTS ii
Abstract: iii
List of Abbreviations and Acronyms iv
CHAPTER 1 1
1.1 Background to the Study 1
1.3 Statement of the Problem 3
1.4 Objectives of the study 4
1.5 Research Hypothesis 5
1.6 Justification of the study. 6
1.7 The Assumption of the Study 7
1.8 Scope of the study 7
1.9 Lists of Cases Cited 8
1.10. Definition of Terms 8
CHAPTER TWO: LITERATURE REVIEW 10
CHAPTER THREE 18
RESEARCH METHODOLOGY 18
3.1 Research Design. 18
3.2 Location of the study: 18
3.3 Target Population 19
3.4 Sampling procedure. 19
3.6 Instrumentation 20
3.6 Reliability and validity of the instruments. 20
3.8 Data Collection 21
3.8 Data Analysis 21
RESEARCH BUDGET 23
REFERENCES 25
Abstract:
The Mau forest complex is a large highland forested area in Kenya. It is the largest water tower in Kenya. Many rivers into Rift Valley lakes and Lake Victoria start at the Mau.
In recent times the Mau forest has had large areas of the forest excised and allocated to individuals. Even the unallocated part has been invaded by loggers, charcoal burners and firewood seekers. This has led to destruction of a large part of the forest. Due to this destruction the supply of resources sourced from the forests has dwindled. These resources include firewood, timber, thatch, honey, livestock fodder and even human food.
The last is especially important to the Ogiek community who depend on forest to support their hunter and gatherer lifestyles. In addition areas adjacent to the forest have experienced increased environmental problems due to the drying up of rivers and streams that originated from the forests. Increased surface runoff resulting from destruction of forest cover has seen these adjacent areas experience increased soil erosion and flash floods all of which have contributed to even more reduced productivity in farms neighbouring the forests. These resources are dwindling while at the same time the population that require them has dramatically increased. This is due to high birth rates but even more importantly increased settlement in the forest lands. It does not help matters that the new settlers are of different ethnic groups to the people who had settled in the region earlier. In addition the two communities seem to exist in a state of belligerence even in the best of times. As a result there are continuous reports of hostilities between the various ethnic communities that sometimes breakout into outright ethnic conflicts. Even though this is most apparent in election years, conflict in this region is continuous and violence and even deaths often results.
In this research I propose to measure by how much multiplicity of laws in land and forest management has contributed to conflicts in the Mau region. This situation of legal pluralism results inconsistencies, conflicts of law and even loopholes that allow manipulation for personal gains.
List of Abbreviations and Acronyms
Legal Pluralism / Legal situation where activities are regulated byDC / District Commissioner
CC / Country commissioner
KANU / Kenya African National Union
NEMA / National Environment Management Agency
CFA / Community Forestry Associations.
Cantonization.
i
CHAPTER 1
1.1 Background to the Study
The Mau Forest is a large forest in the western escarpment of the Rift Valley. It is the source of many rivers that drain into the Rift Valley lakes and Lake Victoria, the second largest fresh water lake in the world. Lake Victoria itself is the source of River Nile the longest river in the world and the one that supports millions of people downstream from Uganda to Egypt. It is regarded as the largest water tower in Kenya.
Lately there has been a lot of destruction of the forest in the Mau. A lot of the forest land was excised by the former president of Kenya Daniel Moi and allocated to people perceived to be his political supporters and who belong to his ethnic community. There are allegations that the president and his cronies used the peasant settlement to allocate themselves large tracts of forest land in the Mau. Daniel Moi used powers that the constitution had bestowed on the president to allocate public land more or less as he deemed fit.
Destruction of the forest and environment did not end at the allocated land. During the forest clearing frenzy the enthusiasm spilled over into the unallocated forests that themselves were heavily logged almost turning them into bushy grasslands rather than tropical indigenous forests that the once were.
Almost hand in hand with the forest destruction there arose ethnic conflicts in the Mau forest region. The new settlers, the Kalenjins were of a different tribe from the existing communities the Kikuyu[1]. It did not help matters that the two communities regarded each other as opponents; one having produced the first Kenyan president and the second having produced the second Kenya president. Each group viewed the other as having received undue favours in allocation of land in the Mau. At the same time, the settlement coincided with clamour for multiparty democracy in Kenya.
The Kikuyu were at the forefront of agitation for multiparty democracy.[2] The Kalenjin viewed their agitation as an attempt to topple a Kalenjin from the presidency. The spark of political incitement was enough to light the flame of ethnic conflict and violence and the Mau has never been the same again. The conflicts have simmered in the background but ignite at every election time resulting in death, human displacement and suffering. The disputed 2007 elections saw the highest escalation of this ethnic conflict with thousands dead and displaced in the rift valley. While the election may have been the spark, the underlying cause of the conflicts can be attributed to competition for dwindling resources of the Mau that a bigger and bigger population demands. The Mau forest itself seems unable to withstand the demands for resources placed on it and has continuously degraded until there are fears that soon there will be no forest to talk about.
It is generally agreed that a situation of ethnic tension is not desirable anywhere in the world. There has been various attempts to solve the Mau ethnic conflicts. Most of these have been centered around elder negotiations. In addition the Kenya forest Act 2005 was passed with the hope that it would address the problem of forest destruction. It was hoped that the new law would encourage conservation of forests by making the neighbouring communities stakeholders through the Community Forest Associations.
So far attempts at ethnic conflict resolution have been unsuccessful in reducing ethnic tension and another election season is approaching that promises to be as acrimonious and hard fought as the last one. There is therefore need to urgently address ethnic tension in the region in a new way.
There have been arguments that Kenya’s ethnic strife is due to its many tribes. However Tanzania to the south has as many if not more tribes than Kenya. And Tanzania is famous for its peace and tranquility. Could it be that Kenya’s main problem is many bad laws caused by unthought-out legislation tailored to satisfy the whims of the presidency. It is possible that the Kenya forest act, 2005 is just another addition to the many laws that purport to control land tenure in Kenya. It therefore might not be a solution but might be complicating the problem of legal pluralism that exist on the ground.
1.3 Statement of the Problem
For a long time, Kenya has had a good reputation as an “island of peace”. This reputation shouldn’t fool you. It is only relative peace as compare to most of its neighbours who seem to be permanently warring. Kenya has had its own share of internal violent conflicts but they fade in comparison with the large-scale incessant coups, rebellions and counter rebellions of most of her neighbours.[3]
Land has always been dear to Kenyans. This is probably due to the fact that there are not many alternative means of livelihood in Kenya.[4] Industrial revolution did not take off in Kenya as envisaged after independence. Indeed development goalposts kept on being shifted forward time after time by the politicians after realizing that they could not be achieved in the set timeframe. First it was by the turn of the millennium. Then it was by 2020 and currently the country has vision 2030 by which time, the politicians say, Kenya will have become a fully industrialized society. As of now Kenyans have to make do with what they have and that is land. Most of the land is utilized for subsistent agriculture with little inputs and even less yield with the results that in most cases, the farmers can hardly feed themselves.
Competition for resources has been cited as one of the major causes of conflict in the world. This is quite apparent in Africa where resources have been associated with violence. In fact oil, a major resource that has made the Middle East countries rich is more often than not referred to as the curse of Africa. Many African countries break out into violence or existing conflicts are exacerbated immediately oil is discovered.[5] There are even fears that Kenya could fall into that curse now that oil has been discovered.
Kenya has not had any significant natural resource up until now. Conflicts there have been over the meager resources available. This is mostly land and forest resources.
The Rift valley has had a history of land problems ever since Kenya was a colony. It therefore has been a major conflict zone that has even threatened the existence of the Kenya nation.
The Mau is located in central Rift Valley. It is here that one of Kenya’s water towers is found.[6] It is a high altitude, high rainfall, highly forested region. Most Kenyan rivers draining into Lake Victoria originate from the Mau. Thus activities in the Mau have repercussions not only in Kenya but the whole of East Africa and countries through which the Nile flows.
The Mau is most famous for ethnic clashes that have constantly plagued that area. Among there reasons that have been advanced as to the causes of ethnic conflict in the area has been:-
- competition for forest resources
- historical injustice
- tribal animosity
- political incitement
While all these are valid causes of the ethnic conflicts, such situations exist in many parts of world and do not read to violence. I therefore propose that multiplicity of laws are a major contributor to ethnic conflicts and violence. This is because when there is no clear legal alternative to dispute resolution people may be inclined to resort to violence. The question therefore is could conflicts in the Mau be largely caused by competition for forest resources and could the resultant violence be brought about by multiplicity of in laws governing land and forest resources and negative altitude towards the justice system in Kenya.
1.4 Objectives of the study
1. To find out if there exists conflicting legal pluralism in land administration in the Mau.
2. To compare the Mau region’s resident’s age with knowledge of land and forest laws that operate in Kenya.
3. To find out readiness of the Mau residents to use legal means to solve conflicts if such means are available.
4. To find out the proportion of the population that thinks they have no legal recourse in case of conflicts.
5. To analyze legal aspects of historical injustice and its contribution to conflict and violence in the region.
1.5 Research Hypothesis
a) There exists a plurality of laws that govern land and forest administration in Kenya.
b) Most residents of the Mau have limited knowledge of the laws governing land and forest resources in Kenya.
c) Most Residents of the Mau region usually do not involve the judicial system in conflict resolution
d) The main reason for failure to use the Kenyan justice system in Kenya is due to lack of trust that justice will be done.
1.6 Justification of the study.
The Mau Forest complex is important. It is one of the two major water towers in the Kenya. Lots of rivers originate from the Mau. Some of these rivers flow either into Rift Valley lakes like Baringo, Nakuru and Turkana. Others flow westwards into Lake Victoria; the source of the Nile. On their way to Lake Victoria they flow through wildlife areas that are major tourist attraction sites in Kenya like the Maasai Mara game resource providing drinking water to wildlife and people along the way. Whatever happens in the Mau has consequences to the economy and livelihood not only of Kenyans but of the whole Nile valley region inhabitants. Conflict and violence in the Mau usually results in destruction of forest and the environment in the region whose repercussions reverberate far beyond the region. Conflict and violence in the region is therefore not only morally objectionable but also politically and economically.
A lot of effort has been put in solving the perpetual ethnic conflicts and violence in the Mau region. So these efforts have not been spectacularly successful. There are small scale conflicts that do not even make it to the news and therefore the rest of the country does not know about them. It is these small conflicts that lead one to conclude that the Mau situation is only dormant, but not extinct. It is only waiting for lighting of the fuse to blow up into full scale conflict that it once was.