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Biopolicy International
African Centre for Technology Studies

Num. 8, 1993, pp. 1-23
TREE RIGHTS IN KENYA : The Case of the Turkana (Part 1)


Edmund G.C. Barrow

African Wildlife Foundation
Nairobi, Kenya

Code: BP93008
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African Centre for Technology Studies (ACTS)
Biopolicy International Series no. 8


Series Editors

      Calestous Juma
      African Centre for Technology Studies (ACTS), Nairobi

      John Mugabe
      ACTS Biopolicy Institute, Maastricht, The Netherlands

      Norman Clark
      Science Policy Research Unit, University of Sussex, uk

      Walter Reid
      World Resources Institute, Washington, dc, usa
  
  
Biopolicy International Series
  
1.    Bio-pesticides in Developing Countries: Prospects and
      Research Priorities          
      by R. Gerrits and E.B.J. van Latum.

2.    Genetic Resources and Sustainable Agriculture: Creating
      Incentives for Local Innovation and Adaptation 
      by Walter V. Reid.

3.    Conservation and Use of Agro-Ecological Diversity 
      by Joel I. Cohen.

4.    Intellectual Property, Biotechnology and Trade: The
      Impact of the Uruguay Round on Biodiversity 
      by Rohini Acharya.
 
5.    Conservation of Plant Genetic Resources: Grassroots
      Efforts in North America 
      by Kevin Dahl and Gary Paul Nabhan.

6.    Biodiversity Conservation in Chile: Policies and
      Practices 
      by Jubel R. Moraga-Rojel.

7.    Property Rights, Biotechnology and Genetic Resources 
      by Mohamed H. Khalil, Walter V. Reid and Calestous Juma.



African Centre for Technology Studies
Nairobi, Kenya

ACTS Biopolicy Institute
Maastricht, The Netherlands

1992
Edmund G.C. Barrow, 1992


Published in Kenya in 1992 by Acts Press,
African Centre for Technology Studies (ACTS)
P.O. Box 45917, Nairobi, Kenya
Crescent Road, Opposite M.P. Shah Hospital, Parklands
Tel.: (254-2) 744047; 744095; Fax: 743995

and

ACTS Biopolicy Institute,
Witmakersstraat 10
6211 JB Maastricht, The Netherlands


This issue of Biopolicy International was published in
conjunction with the World Resources Institute (WRI) with
primary financial support from the Finnish International
Development Agency (FINNIDA) and the Swedish International
Development Authority (SIDA). Additional support was provided
by the Danish International Development Agency (DANIDA),
Initiatives Ltd., the International Development Research
Centre (IDRC), The World Conservation Union (IUCN), Stockholm
Environment Institute (SEI), Swedish Society for the
Conservation of Nature (SSCN), and the United Nations
Environment Programme (UNEP).


Printed by English Press Limited, P.O. Box 30127, Nairobi

Cataloguing in Publication Data

Tree rights in Kenya: the case of the Turkana/Edmund G.C.
Barrow . Nairobi, Kenya, Acts Press: African Centre for
Technology Studies, 1992.

ISBN 9966-41-046-5

                        Contents

Acknowledgements                                               
   vii
Introduction                                                   
    1
1.Kenya land laws and trees                                    
    3
2.Trees and the Turkana silvo-pastoral system                  
    7
3.Tree access rights and present-day pastoral development      
   11
4.Trees, pastoralism and the law                               
   14
5.Implications for the future of pastoral development          
   16
Notes                                                          
   19
References                                                     
   22
Appendix                                                       
   26



Acknowledgements


I wish to thank Dr. W. Reid  of the World Resources Institute
(WRI), and Dr. F. Owino and Dr. M. Avila of the International
Centre for Research in Agro-forestry (ICRAF) for reading and
making comments on an earlier draft. However, I take all
responsibility for any mistakes in this paper.



Introduction

Pastoralists know what biodiversity is and understand the
necessity for maintaining it in terms of risk spreading and
resilience in their production systems. On the other hand,
outsiders usually do not understand the importance of
maintaining a diverse and varied genetic resource base, and
want to see such systems replaced. The outsiders emphasize,
for example, settled agriculture with a reduced biodiversity,
thereby precipitating the many and varied problems that
pastoralists now face.(1) This has been a function of
outsiders' attitudes about the relationships that exist
between pastoralists, their livestock, the environment in
which they live and external influences over which they often
have little control.

      A literature review reveals two differing positions.
Some maintain that pastoral nomadism is caught in the cycle
of livestock accumulation which leads to overgrazing,
environmental degradation and famine.(2) Others hold that
pastoral nomadism is environmentally sound and that the
disruption of the normal system has caused the environmental
problems.(3) This lack of understanding of traditional pas-
toral systems has been cited as a major reason for the
failure of development programmes in pastoral areas.(4)        
      
Pastoralists have survived despite development schemes, not
because of them.(5) However, their survival has been often at
the price of ecological sustainability as pastoralists become
increasingly marginalized both in terms of their land,
decision-making and loss of biodiversity.

      "Tragedy of the Commons" arguments have emphasized
mainly the rangelands (grasses) and, to a lesser extent,
water resources. The importance of access rights to trees in
pastoral areas has not been given the attention it deserves
given the relative importance of woody species in dry
environments. The example of usufruct rights to trees in
Turkana District, Kenya, shows the importance the
pastoralists place on trees in the natural resource system,
and how important it is to understand traditional management
systems before suggesting change. Such  change, therefore,
has to be seen not only in its sociological, technological
and legal contexts, but also from the point of view of
maintaining biodiversity and the access rights or indigenous
property rights that are implicit.

      Very little systematic knowledge exists concerning tree
use and tree planting among pastoralists(6) and many
questions  need to be addressed. These include: What are the
rules regarding tree rights? What are the rights of
individuals versus groups? For instance, it is common in
Maasai group ranches to allow herders from neighbouring
ranches to graze on the outer fringes of one's territory.
However, visiting herders may be prohibited from actively
shaking an Acacia tortilis tree for its pods by the group
ranch members, especially in dry times. This kind of measured
response to a drought suggests more sophisticated management
of tree resources than is commonly ascribed to pastoral
groups.(7)

      However, groups seem to survive if they have clear-cut
rules that are enforced by both users and officials,
internally adaptive institutional arrangements, the ability
to nest into external organizations for dealing with the
external environment and decision rules for different
purposes.(8) Their chances are also better if they are
subject to slow, exogenous change. Four areas need special
attention:


*     tenure of land and trees affects the surrounding
      ecosystem

*     access to land and forest resources under different
      tenure schemes affects the standard of living of people
      who depend on those resources

*     rules of tenure affect the preservation, protection and
      planting of trees

*     the prevailing system of tenure determines the
      beneficiaries and victims of forest policies and
      forestry projects, and so sets the framework for
      conflict over benefits.(9)


      In this respect, the system of Turkana usufruct rights
to riverine trees is a part of a broader natural resource
management system to help spread risks inherent in an arid
environment. It is also an important source of 
conserving - and to a degree manipulating, through
management - the biodiversity that exists in the important
areas of woody vegetation. In this case, property rights are
an instrument of social policy and particular property
regimes are chosen for particular purposes.(10) However, such
indigenous property rights are neither unique to the Turkana
situation, nor are they simple. They include such issues as
"what rights" (e.g., to own or inherit, to plant, to dispose
of and to exclude), and "whose rights".(11)  In Niger for
example, all valuable trees belong to the state.(12) Groups
may have tenure rights over areas of trees e.g. the Ngitiri
conservation system in Shinyanga, Tanzania,(13) or the
individual may have rights, such as in the Ekwar in
Turkana.(14)

      The need for secure tenure over land and trees, or clear
rights to their use, has therefore been recognized, and
serves as an important incentive for rural people to manage
and maintain their resources. Such rights are, however,
complicated by being three dimensional, in terms of people
(e.g., the Turkana pastoralist), time (e.g., the Turkana
pastoralist's ability to maintain the necessary links to keep
his ekwar) and space (e.g. the area covered by the
ekwar).(15) Furthermore, they are dynamic due to a complex
social structure. The rights to access to trees can depend on
various factors, including their origin (e.g. whether self-
sown or planted), the encompassing production system, (e.g.,
whether private or communal land holdings), and the use made
of the trees.(16)

      Thus the importance of trees in pastoral natural
resource management is reflected in a variety of social
controls relating to access, usage and maintenance of
diversity. This has implications in terms of maintaining
biodiversity in a production system where it is vital, and
showing that indigenous property rights to such biodiversity
are essential to sustainable natural resource management.
However, in the case of the Turkana in Kenya, the legal
processes have not adequately tackled access and tenurial is-
sues in the pastoral lands, either in terms of group
management or individual rights of usage.

      All governments now recognize the importance of
promoting greater public participation in forestry
activities. Yet if the policies are to succeed, pastoralists,
farmers and communities will need stronger assurance that
they will benefit. The current system of control provides
uncertain and insecure rights,(17) and conflicts between
tenure systems are common in Africa, particularly between
local customary and national statutory tenure.(18) Where two
systems exist together, each with a fair degree of
credibility, uncertainty is created and customary rights may
be wiped out.

      This study argues that the recognition of Turkana
indigenous property rights, in this case to trees, is an
ecological imperative on which biodiversity can be
maintained. This, however, has to be seen in the light of
present day legislation and policies if it is to be an
effective tool for conserving and managing valuable genetic 
resource in the arid and semi-arid lands. It is on these
resources that resilience and risk-spreading ultimately
depends.



1.      Kenya land laws and trees

In Kenya there are many laws and regulations which govern the
use of land. It is important to gain a brief insight into
these legal instruments in order to understand the legal
context of pastoral tree rights and biodiversity. Land tenure
refers to the possession of the many rights associated with
each parcel of land,(19) referred to as a bundle of rights.
However, not all rights comprising the bundle may be held by
the same person. Any system of land tenure is dependant upon
the historical and cultural circumstances within which the
given community has evolved and the legal and philosophical
content of that community's conception of land.(20) Thus,
"land" can mean:


*     land and all things attached to it, as reflected in the
      Registered Land Act of Kenya and where land becomes a
      commodity, or,

*     land without the various material objects (e.g., trees,
      buildings) which are legally severed from the concept of
      "land".(21) This is reflected in customary and communal
      land tenure. Here, the context of communal tenure is
      very complex but has two essential elements: equal
      access to land, and the legal and economic fact that
      land is not a commodity. (22)


      In Kenya, both forms of land tenure exist. The
Registered Land Act(23) governs land formerly held under
customary law, and replaces what was essentially communal
continuous law with that of individual ownership. This mainly
applies to the trust lands (before independence referred to
as "reserve areas"), which fall under the jurisdiction of the
county council and can be adjudicated, consolidated and
registered.(24) However, there are many parts of the country
where this is not possible, in particular the pastoral lands
of Kenya which are still governed and managed on the basis 
of customary law. At present, for sociological, ecological
and management reasons, it is very difficult to replace
customary law with individual tenure,(25) but it is
happening, often as a result of political pressures.

      The Land Act (Group Representatives) tries to preserve
some element of traditional and modern law in giving a group
title deed to a communal area of land on a co-operative
basis.(26) However, this is already changing and private
title deeds are been given in such areas. For example, during
a land adjudication exercise in Mosiro, Kajiado, it was
discovered that out of 1,000 Maasai families who should have
benefitted, some 459 plots were to be allocated to non-Maasai
people.(27) This example illustrates how private title deeds
in pastoral areas usually benefit the more powerful and rich
pastoralists and  while the ownership status of the poorer
people is further eroded.

      Since all land ultimately belongs to the state; the
question is whether it is possible to balance the interests
of the rural population and the government in terms of
tenure. At present, customary law is largely unwritten and
probably out of step with the wider development process.(28)
"Development" does not attempt to understand such customary
law and regulations whether they be of an individual or
communal nature. As communal tenure in Kenya derives from
customary law, how can communal tenure be better understood,
articulated and used as a basis for land management, even
alongside individual tenure? It is important that where the
law recognizes group, family or co-operative rights to land,
the rules governing these rights under customary law in the
various ethnic groups should be identified, understood and
written into the statutory law.(29)

      Statutory law basically operates on the principle of
exclusion from land while customary law lays a greater
emphasis on inclusion through communal access and usage. This
issue of inclusion and exclusion is of integral importance in
understanding customary law, especially in the more expansive
pastoral systems. In pastoral communal law, the principle of
inclusion is linked to the pastoralist's ability to retain
relationships with those around him or her to continue having
access rights(30) for instance, to trees.  

      Land tenure cannot be separated from land use. Land
tenure rules emphasize issues between humans and the
regulation of competing interests in the use of land. Land
use rules emphasizes human-versus-environment on the other
hand, issues and the regulation of land use so as to conform
with acceptable methods of husbandry and conservation. Thus,
the  holder of tenurial rights has to assume that the
objectives of land use are realized; land use decision-making
therefore becomes a tenure issue.(31) It then becomes a
question of whether the farmer or the national planner
defines the objectives of land use. This point is important
in considering tree tenure, and the management of such trees
in the maintenance of biodiversity and sustainable natural
resource management, in such fragile and risk-prone
environments.

      Direct regulation of the tree component in land use is
one of the most important variables affecting the extent and
type of tree usage. This is governed by a wide range of
legislation and regulation, e.g., soil conservation,
protection of indigenous trees, land use management, public
forest management, cash crop and rangeland management.(32)
Some of these regulations have features which may work to the
detriment of the user and the environment.

      In general, land and tree tenure can affect:

*     rights to trees, their protection and harvest
*     site selection
*     species of trees
*     management of trees
*     the right to own and inherit trees (which may be vested
      in the community or in kinship groups)
*     the rights to use trees and tree products, to gather
      honey, lop off branches, use trees as bee hives, cut all
      or part of living trees, use produce under trees
*     the rights to dispose of trees‘destroy, lend, lease,
      mortgage, pledge, give away or sell.(33)


      In most traditional herding societies in Kenya, communal
land management practice encouraged the use of protected
seasonal grazing reserves, clan rights to water and, in some
cases, specific rights to trees (individual, sacred, etc.).
In such areas where the authority of the elders has been re-
duced, customary management rules are increasingly difficult
to enforce.(34) Where some authority remains, however, such
rules can have a significant beneficial role in development
and so should be fostered and built upon. In terms of
traditional tree rights and regulations, some dryland social
forestry programmes have usurped, and so weakened, the
traditional rights and rules.(35) Failure to recognize the
relationship between property and trees and property in land
has led to many bad projects and failed development interven-
tions since national legislation, which development projects
must conform to, tends to emphasize soil and land, whereas
customary law takes more account of trees.(36)

      Likewise, certain‘often well meaning‘policies can
undervalue the role and management of trees by the people.
For instance, nationalizing trees and rules prohibiting the
cutting and use of certain trees unless such rules are taken 
in the context of the users and not a general nationally is-
sued decree.(37) Tree species that belong to the national
government are not likely to be protected by farmers. In such
cases, rules of land and tree tenure may provide positive
incentives for destroying extant trees.(38)

      A combination of strong customary laws, based on the
grazing associations of the Turkana, or adakar, of trees,
e.g., in dry season grazing reserves, and private customary
ownership of important rich patch areas of trees, especially
in the riverine forest of dry central Turkana, help to mu-
tually reinforce a system that was traditionally sustainable.
The Adakar associations relate to the use by sustainably
managing the resources in present-day Kenya, hence,
biodiversity and important genetic resources are conserved.
Customary Turkana law appears to have achieved this balance
in Turkana, Kenya.

      However, this system is threatened by the pervasive
influence of government rules and regulations regarding land
and resources that, at present, do not allow for such
important customary rules. This not only threatens the
existing customary regulations governing trees and natural
resources, but the very biodiversity that exists in such
risk-prone areas on which pastoral production systems are
based. Government policy-makers need to recognize the
importance of customary law in such risk prone environments
not merely as a legal imperative, but also in the context of
environmental sustainability, ecological diversity and land
use management. Statutory law and government regulations
should reflect these values.

     
2.      Trees and the Turkana silvo-pastoral system

Turkana is a semi-arid and arid district of 72,000 sq km in
Northern Kenya. It has a population of about 225,000 people
and a low and highly variable rainfall, varying from 150 to
200 mm in the dry central areas to over 400 mm in the
south.(39) The district is bordered on the east by Lake
Turkana, on the west by the Ugandan escarpment, on the north
by the borders of Sudan and Ethiopia, and on the south by
West Pokot and Baringo districts of Kenya. The topography
consists of low central plains (600 maltitude) lying close to
hills and mountains (1800‘3100 maltitude). There are numerous
ephemeral streams and the Turkwell and Kerio are the two most
important rivers. The vegetation is related to moisture
availability and so linked to elevation and proximity to
ground moisture in the rivers.

      The people of Turkana have evolved well-managed and
basically sound ecological strategies which enable them to
utilize the vegetation on a sustainable basis. They exploit
different economic niches (grazers, including cattle, sheep
and donkeys, and browsers including camels and goats), and
diversify food procurement.(40) The Turkana silvo-pastoral
system makes best use of the vegetation both in time and
space through a transhumant system of wet and dry season
grazing combined with setting aside specific dry season
grazing reserves (epaka or amire).(41) Such complex, broad
silvo-pastoral systems have worked in the past but are now
primarily threatened by externally-driven interventions 
(e.g., settlements, irrigation schemes, health and education
facilities) since they usually cannot cope with the speed of
change which such interventions bring.

      The Turkana have a well-developed knowledge of their
flora and its uses. Within this, woody species are especially
valued since they can survive and produce well even through
the long dry seasons, though some species are considered more
important than others. Their knowledge reflects the life
styles and the extent of their dependence on the woody vege-
tation; including which species to use for:


*     dry timber for woodfuel
*     building timber for houses, fencing and thatching
*     food for livestock, particularly in the dry season
*     food for people
*     veterinary medicines for a variety of diseases
*     human medicines for a variety of diseases
*     making of household utensils
*     amenity for shade, to act as a meeting place
*     variety of cultural values, water purification and
      ceremonial purposes.


      Indeed, the woody vegetation constitutes the districts
most valuable resource of which the Turkwell riverine forest
and the Loima mist forest are the most important. The value
and distribution of the woody vegetation is described by
Ecosystems:(42)

      "In 23% of the district woody vegetation virtually is
confined to riparian strips. These areas coincide with the
driest eastern parts of Turkana and dry season grass cover
was found to fall consistently along a gradient of  in-
creasing importance in the riparian component . . . Despite
the acute shortage of grass, areas of exclusively riparian
woody vegetation supported over 30% of all livestock in the
district during the dry season, underlining their extreme
importance as a dry season forage resource." 

      Understanding this, the Turkana have developed the
management of their trees a step further, especially in the
drier parts where the vegetation resource is more critical.
The herd owners within their ere, (that area of permanent
settlement where old and young stock may remain all year
around)(43) may have ownership rights to particular resources
which may include fodder, trees (ekwar; pl. ngikwarin), dry
season wells and sorghum gardens. These resources are owned
by the herd owner and his close family relatives and
outsiders are allowed to use them without prior
permission.(44) Although ekwar literally means that area
beside the river bank‘indicating the importance of the
riverine vegetation‘it reflects the usufruct rights to the
trees that grow beside the rivers, and, de facto land
ownership, although this is not explicitly stated in Turkana
customary law. For the herder, the woodland is his farm in
the sense that it is even more essential to his livestock
than it is to the farmers crops.(45)

      It is difficult, therefore, to give an exact definition
for the word ekwar since it also implies a degree of
flexibility that is hard to quantify. An ekwar is strongly
associated with ownership of the trees (or more particularly
their produce) beside or near a river (or in some instances,
lake). It is of particular importance during the dry season
when a person's ekwar provides the family with valuable dry
season fodder in the form of pods and leaves from the various
trees, in particular, Acacia tortilis.(46)

      Given the vital importance that the riverine woodland
plays in the district, the ekwar is an integral and vital
part of the ere and thus of livestock and natural resource
management. The importance of hill areas, as dry season
fodder reserves is recognized in terms of the "grazing group"
which has rules and regulations governing their usage. The
Loima mist forest is the most important of the dry season
grazing reserves in the district.

      Why have people, such as the Turkana, developed such
customary tenure and usufruct rights to trees? Trees provide
a continuous flow of products throughout the year and are
therefore important to risk management, especially in the
arid and semi-arid lands. They can also be used to meet
contingencies, (such as by generating cash by selling
firewood, providing and storing food and fodder during 
droughts. In such cases trees in the drylands can perform the
function of a savings bank where for example the "interest",
e.g, can be sustainably utilized.(47)

      The system of ekwar is strongest along the river courses
in the driest, central parts of the district where the
riverine vegetation is most important. However, not every
household has an ekwar. People own their ekwar for long
periods of time, often in excess of two generations. The
boundaries vary considerably but usually relate to a river
bank or a prominent tree or trees, in particular Acacia
tortilis, Hyphaena compressa and Salvadora persica.(48)

      Wet season use of the ekwar is not considered as
important as dry season use. It is in the dry season that the
ekwar provides livestock food from trees such as Acacia
tortilis, Cordia sinensis, Salvadora persica, Hyphaena
compressa and Zizyphus mauritiana.

      In this case, it is difficult to define the term
‘importance‘ since it can  not only imply both quality and
quantity of produce, but is also related to what is available
in the dry times, and how guaranteed that availability is.
Therefore the importance of the dry season fodder is
primarily related to spreading risks and retaining
resilience. The relative importance of the different trees
also relates to their abundance in the ekwar area. The quali-
tative variation within species where higher yield or better-
tasting fruits can be recognized, and between species as a
means of spreading risk through the harvesting of different
tree products at different times.

      Why should an essentially nomadic pastoral society
develop a system of individual land ownership, or more
particularly, user rights to an area and to trees in
particular? The primary reason for such ownership relates to
the dry season utilization of the trees in the ekwar to
produce food for people and livestock. The ekwar system is
generally absent from areas where trees are not common or
occur sparsely. Furthermore, in the wetter areas of the
district (i.e. the south) where the vegetation is richer, the
ekwar system may exist but is weaker because of the relative
abundance of vegetation.

      On this basis, the ekwar appears to be part of a land
use management strategy for the Turkana that includes wet and
dry season grazing combined with reserved grazing areas
(epaka, amaire) and dry season fodder reserves (ekwar). The
dry season reserves (a maire) are managed in a similar way to
the ekwar, but are communal, and primarily for fodder and
browse. Relating this utilization to ownership values only 
serves to show how important the people consider trees in
general, and the riverine forest in particular.

      Storas states that "Property ownership among the Turkana
Pastoralists is not definite, but intimately related to the
social organization of the people".(49) In this context, it
is likely that ekwar ownership is some what flexible and not
strictly defined, and will depend to a great extent on the
way people use their riverine forest area. Where an ekwar
owner is absent for a period of time and not using its
produce, it is likely that someone else will take it over so
that the produce can be used efficiently.(50) Such flexi-
bility of ekwar ownership represents another method of risk
reduction which makes the Turkana production systems more
sustainable. This social organization therefore has important
ecological implications in the way it enables people to
regulate the exploitation of the natural resources.

      The importance of access to natural resources is often
judged according to the relative abundance and diversity of
that resource. Recurrent confrontations over land use are
intimately linked to a territory, such as an ekwar, whose
holder has to maintain communal agreement that his rights are
established by usage. These rights form the basis for
extending and reinforcing the web of relations to people on
whose support the agreement depends.(51) This has important
links to maintaining flexibility in resource management both
in space and time and in relation to other users.


3.     Tree access rights and present-day pastoral development

Although the system of ekwar in Turkana relates, primarily,
to usufruct rights to the produce of the riverine forest, it
is almost impossible to separate this from tenure rights.
Currently all land in Turkana District, like most of the
communal rangelands in Kenya, is county council trust land
held in trust for the people of Turkana. Where development
has taken place such traditional rights appear to have been
ignored (for example at the irrigation schemes along the
Turkwell River, settlements along the rivers and a fisheries
project at the lake shore).

The Trust Land Act states:
  
  
"8.(1) Where land is set apart under section 7 of this Act,
full compensation shall be promptly paid by the Government
to any resident of the area of land set apart who:

      (a) under African customary law for the time being in
force and applicable to the land has any right to occupy any
part thereof; or

      (b) is, otherwise than in common with all other
residents of the land, in some other way prejudicially
affected by the setting apart"(52)
 

      Yet none of the above provisions were adhered to when
the irrigation schemes were formed, or the fish farm at
Kalakol or the ever-expanding need for land in the settlement
areas. By ignoring traditional access rights to such areas,
the local land management strategies are being undermined and
weakened to the detriment of the environment and the pastoral
system. Further, and more insidiously, the biodiversity of
the existing system on which pastoral land use management is
based is threatened because the indigenous property rights
are being ignored. This reduces the system's effectiveness in
coping with the periodic drought and other natural or man-
made disasters, and  results in their increasing in
frequency.

      The irrigation schemes provide another example. In
impinging on traditional Turkana sorghum gardens and tree
ownership rights, those implementating these schemes have
shown ignorance of traditional land use rights. This is
exemplified by the conflicts and disputes that have arisen
between the irrigation scheme and traditional
cultivators.(53) As a result, trees on both irrigated and
rainfed areas have been cleared without any reference to
their traditionally-defined values, and rules governing their
tree usage.

      Ekwar ownership is not definite, but is based on the
owner's ability to use his Ekwar over time and his social
network to support his rights.(54) These social ties are the
basis for Turkana land management (grazing, ekwar ownership
and browse utilization). However, there are often con-
frontations in such a system because such rights are often
not clear cut, and these are usually brought before the
elders for settlement.(55)

      Sustaining such indigenous property rights systems in
the face of externally-generated pressures for change is a
challenge, not just to the Turkana‘s ekwar, but to the future
of pastoralism as a land use system in the 20th century.
Given a realistic attitude to land demarcation in the drier
areas, it could, eventually, be possible to combine a system
of individual ownership (for instance based on the ekwar)
with a group ownership to the wet and dry season grazing
lands, (including such reserves as epaka and amaire), based
possibly on the adakar. Such a system might help to reinforce
the conservation and biodiversity of the vital riverine
forest lands and allow for flexible communal  management of
the rangelands based on mobility and risk spreading.
Articulating Turkana indigenous property rights, in present
day policy (see appendix), while retaining the biodiversity
would make the existing system more ecologically stable and
environmentally sound. This could then form the basis for
improved economic modelling of such systems. 

      The system of ekwar is important to the development
process especially for the forestry and range management
sectors in their conservation and extension activities. The
ekwar owners represent a discrete and known target group with
which to work. This is important for all concerned with the
sustained utilization of the vegetation in the district.
Reinforcement of such indigenous natural resource management
strategies could serve to increase the woody resources
available and make the system more sustainable in the long
term through individual and communal responsibility. However,
interventions that weaken such environmentally-sound
management systems can serve to reduce the system‘s
resilience and therefore make it more susceptible to
increased pressures and drought. It has been noted that,
"development interventions that alienate land from existing
usage will have serious consequences on the diversity of the
existing subsistence economy. Thus such interventions should
seek to reinforce and improve existing management systems for
such areas, e.g., through multiple use management, reducing
risk in sorghum farming and therefore enhance the
environmental ethic inherent in the ekwar system. Where
traditional uses of property rights (usufruct) ensure proper
management, then the system should be provided with legal
protection."(56)

      Given current development attitudes to such traditional
management systems, the question is how effective the system
of ekwar is as a means of land ownership and, de facto, land
management. In effect, where development has taken place in
such areas, traditional ownership rights have been ignored.
Therefore any threat to such systems, real or perceived,
should be considered seriously. Traditional ownership rights
should be recognized even if the land is held in trust for
the people of Turkana District. However, in more general
terms, how can trees which may only be used periodically by
pastoralists be protected when the pastoralists are not pre-
sent?(57) More often than not, there is strong pressure to
encourage sedentarization of pastoralists which may not be
the best ecological solution.


Rich patch vegetation and marginalization
 
In many pastoral societies‘and the Turkana are no
exception‘areas of richer vegetation, such as riverine
forests and dry season grazing areas, are being excised from
the pastoral production system and incorporated in other land
use systems, such as irrigation schemes, settlements and
dryland farming. The legal basis for such encroachments is
usually flimsy with customary laws being ignored in favour
of, for instance, increased national food production and the
need to build housing settlements. This provides the
ingredients for further land degradation, erosion of
biodiversity and loss of customary laws.

      In Turkana, people's tree rights have been ignored as
land has been expropriated from the traditional system that
symptoms of environmental degradation have become visible.
The traditional controls and structures have broken down with
no adequate replacement, in favour of an essentially alien
system  for which no adequate controls have been de-
veloped.(58)

      This also happended in Tanzania where the Barabaig were
forcibly removed from their vital dry season grazing for the
development of large prairie-like wheat farms which accrue
little or no benefit to the pastoralists. The farms are
nationally perceived as priorities for wheat production
(though wheat only accounts for 2‘3 per cent of the food
intake, and that is mostly urban).(59) This significantly
reduces the effectiveness of enforcing customary land
management rules which leads to chaotic "open access" to
natural resources, a real Tragedy of the Commons, in which
land degradation becomes more likely.

      Likewise, much of the Maasai dry season grazing, where
rights to grazing are obtained by virtue of membership in a
social unit,(60) has been taken out of the pastoral system in
the form of agricultural encroachment, large- scale wheat
farming and settlements. Like the Barabaig example, this fur-
ther marginalizes the pastoralists and substantially
increases the pressure on the remaining, usually more fragile
and less fertile, grazing lands with the related threat of
increased degradation. There are many other similar cases in
West Africa, for example, the effects of large-scale cash
cropping on subsistence agriculture and its effects on the
dry pastoral lands bordering such areas in Mali, Niger and
Senegal.(61) One way to help prevent this process is through
an increased respect for the existing customary regulations
governing resource use. Such rules and regulations should be
articulated in terms of environmentally-sound development
programmes that conserve biodiversity and respect indigenous
property rights and are fully integrated into current policy
and legal frameworks.



4.         Trees, pastoralism and the law

In Turkana most of the traditional grazing controls are still
in place and help to conserve the dry season fodder
resources. The Loima hills mist forest area and other richly
vegetated hill areas can be considered in a similar light to
ekwar ownership. The pastoral people who communally use these
area during the dry season have shown rational and sustain-
able management strategies:
 

*     only utilizing the resources in the Loima hills during
      the dry season, which gives the grass and ground cover
      time to recover and set seed well during the wet season

*     only utilizing dead wood for cooking, and using bush
      species for building of temporary livestock enclosures

*     not cutting large or important trees, since the people
      do not use them directly. They may, and do, harvest wild
      fruits and other such produce which does not involve a
      destructive clearing of trees

*     rationally using the water supply.


      It is vital to the local livestock economy and social
system that the important tree species be preserved as a
genetic resource, and that the area remain accessible as an
important dry season range for the pastoral people. Any
severe restriction of access to the dry season grazing area
would expose the pastoralists to a much greater risk of
drought and famine.

      There must also be a realistic means of preserving the
genetic resources (mainly the tree species) while allowing
continued access to the dry season grazing (combined with
access to water, dead wood, wild fruits and other
traditionally-used produce). At present there are fears that
should this resource be preserved, as a forest reserve, then
the pastoralists who depend on the area would no longer have
free access to it. Such fears have to be allayed to ensure
that the traditional pastoral rights to the area are re-
spected and legitimized. Thus it would be unwise to remove
woodland management by local people from the matrix in which
it exists, be it farming or herding, and treat woodlands like
a forest resource.(62)

      Changes in woodland management can only be done through
participatory dialogue with the pastoralists, where all the
issues are discussed openly and a plan is devised jointly.
This plan should preserve the genetic resources and allow
continued access to and use of the land within the laws of
Kenya. This could then form the basis for the area to be
gazetted as a forest reserve by the government with a blend
of customary and national laws governing its use. The people
of the area should not be forced into decisions that they do
not fully agree with or fully understand, nor should such
decisions be made on their behalf as this would result in
conflict at a later date.

      The best option for the conservation of the unique
genetic resource in the Loima mist forest would then appear
to be under the Forest Act;(63) with the area gazetted as a
forest conservation reserve with its own rules and
regulations to govern and control the utilization of the
gazetted conservation area. Such rules would be made jointly
by the local  pastoralists, the Forestry Department and the
local government administration. Such an option would allow
the Turkana to continue using the area as they have always
done, and would introduce an important dimension in making
the conservation of the area legally binding under the
current Kenyan law. The merging together of customary rules
and regulations and government regulations should allow for
legal recognition of existing rights combined with legally
sanctioned sustainable land use.

      A similar process could be used in recognizing customary
individual rights in ekwar. Such areas of individual rights
could be the basis for individual tenure under the Registered
Land Act. However, this is complicated by other customary
social regulations that ensure that the resource is
efficiently used and the need for the ekwar owner to be able
to defend his rights of tenure to others around him in terms
of efficient use of the resource. 

      These issues have to be related to rights over land and
control rights.(64) Control rights are used to guarantee
access and to respond to the changing needs of society.
Rights of access are also related to membership in a society
or group to enable these rights to be maintained - be they
individual or group. Different people or groups may have
different rights of access. This issue complicates the
argument of ownership such as to an ekwar, or group ownership
of dry season grazing reserves, in terms of present day law. 



     5. Implications for the future of pastoral development

If the legal process does not attempt to fully understand the
customary laws, rules and regulations that govern the usage
of land in pastoral areas, the result will be the erosion of
local customary responsibility and biodiversity. This will
serve to increase the likelihood of degradation due to a now
real Tragedy of the Commons, a free-for-all. Customary law in
such areas, developed over long periods of time, helped
provide the framework for sustainable land-use management
that was environmentally sound in the traditional situation.
This does not say that such systems were perfect in terms of
current development perceptions. Obviously, there is room for
improvement‘with the use of improved management practices.
Such improvement should be seen to build on, and not replace,
existing customary regulations and responsibility.

      Unfortunately, many people  are ignorant of these rules
and regulations, whether customary or state legislation. The
two are not necessarily mutually exclusive, but more often
than not, the state judiciary is used as an instrument to
erode customary rights and regulations. This is especially if
it is seen to result in change that is an "improvement", such
as turning rich patch pastoral land into an irrigation scheme
or settlement. In general, research and development
programmes, by their relative inaction in this field, condone
the continuation of such "improvements".

      Tenure in terms of forestry, and more so access rights
to trees are not seen as important issues. Development
programmes often shy away from tenure issues since they have
strong political implications. Research favours work on 
technologies, and not the attitudinal process of change that
requires a solid understanding of existing land use systems.
Development efforts often add to the pressures on indigenous
tree management by neglecting its existence and undermining
it with incompatible interventions which often lead to
project failure.(65)

      Clearly, neither research nor development can take place
in a political vacuum. Nor can they blithely ignore issues of
tenure and access. Yet, all too often, this happens. Research
looks at issues from a technological, sociological or
anthropological perspective, not from the legal perspec-
tive.(66) Therefore research findings, important as they may
be, lack a policy and legal framework through which they
could gain more definitive acceptability. Development
programmes, on the other hand, concentrate on the sectoral
disciplines they are working with and often do not see the
work in terms of policy intervention and legal redress.
Therefore the benefits of the work may be lost, or not
acceptable.

      This combination erodes customary law, indigenous
property rights, genetic resources and biodiversity in such
areas in favour of other land use systems that have, in many
cases, already been shown to be unstable in such high risk
areas where management of risk and maintenance of resilience
not economic production, are the primary objective.  It has
been noted that local solution finding should be encouraged.
In this connection, customary tenure law is not rigid as it
is often portrayed, but flexible and innovative.(67) Local
people should be helped to find ways of accommodating
traditional tenure systems to new and more productive
patterns of land use that are ecologically sustainable,
maintain biodiversity and respect indigenous property rights.
Much of the requisite information is held by the local people
and project planners are rarely able to take the time to get
an adequate appreciation of local knowledge and preferences.
Similarly, many donor-funded natural resource management
programmes, like many colonial programmes, fail to build on
or even acknowledge, local practices and knowledge.(68)

      Yet it is possible to see both research and development
in legal and policy perspectives. This requires a better
understanding of the existing policies and laws. When having
such an understanding, research and development processes can
visualize a policy and legal setting for their work. This
makes the work more acceptable, and more importantly can pro-
vide guidelines for improving existing laws and policies.

      Most of the laws and policies in Kenya related to land
relate to the high- potential lands and are based on
individual title deeds. This framework does not fully
comprehend the customary rules and regulations pertaining to
the pastoral systems and may actively undermine and weaken
them. Such pastoral customary rules and regulations are often
the result of hundreds of years of managing and thriving in
a high-risk environment. In such cases, risk management and
resilience are the keys to sustainable land management and
therefore the integral objective of customary law in these
areas. Once these laws  are degraded, ignored or destroyed,
without similar compensatory measures, increased risk, loss
of resilience and degradation are likely to occur. This has
been visible in many pastoral societies all over the world
and Kenya is no exception: dry season grazing or rich patch
vegetation has been excised for farm land, irrigation schemes
and settlements. Likewise land, for example in Maasai areas,
is being sub-divided into individual holdings which are not
likely to be environmentally sustainable in the long term.
These aspects have a common theme: that of sub-dividing
communal land into individual title deeds whether or not they
are ecologically or sociologically viable. Land tenure has
become a political and administrative issue which is not
based on ecology, environment or sociology.

      In the dry lands, tenure can therefore be seen as
another tool to marginalize the pastoralists. But this need
not be so. First, the role of pastoralism has to be un-
derstood in the light of sustainable land use management and
in terms of present day development and economic aspirations.
Customary practices epitomize the former and can be used as
the basis for bringing pastoralism into the latter. There is,
however, no room for romanticism; it has to be based on
pragmatic reality which implies change so that pastoralists
fully participate in local and national development.
Likewise, pastoralism has to be seen not only in ecological
and sociological terms, but also as having an important
economic role to play in local and national development. For
this to be fully realized customary rules and regulations
have to be adapted and given state backing, thus building
on‘not replacing‘the existing system.

      The examples cited in this paper provide an indication
of how this could be achieved through a better understanding
of both customary and State law, and how customary law can be
adapted and incorporated in the State framework. Management
of natural woodland, by communities or individuals, is
practiced by those to whom it belongs, so the understanding
of ownership must be on the initial focus of attention.(69)
This is summarized in the appendix which shows the importance
of understanding existing group and individual rules and
regulations, as a basis for land use improvement and also for
looking at such issues in a policy and legal context. It may,
in simple terms, be possible to  confer group land rights on
the grazing associations and allow for individual title deeds
to people‘s ekwar. While such an approach is simple to write
down here, in reality it would be much more complex.

      Where risk and resilience are dominant themes in
sustainable natural resource management in a harsh
environment, research and development, policy and the legal
system cannot afford to effect change that increases risk and
reduces resilience. To do so provides the ingredients for
ecological degradation and disaster during drought. Too many
examples in Africa provide testimony to this.(70)

      In general, agriculture and forestry are planned and
managed on the premise of cultivation and individual tenure.
Yet now, there is evidence showing the basic environmental
and sociological soundness of natural resource management in
the pastoral areas. The challenge is to translate this into
policy and use it to adjust the legal basis for tenure where
it already exists in terms of customary rights. State policy
and laws need not only be determined by national planners and
lawyers. We use the existing framework better to enable
important customary rules and regulations to have a legal
voice.


Notes

1.    See Sandford, 1983.
2.    Picardi and Siefert, 1976; Ingold, 1980; Brown, 1971;
      Lamprey, 1983.
3.    Hogg, 1987; Sinclair and Fryxell, 1985; Swift, 1977.
4.    Sanford, 1983; McCabe, 1985; Fry and McCabe, 1986.
5.    Baxter and Hogg, 1987.
6.    Okoth-Ogendo and Brokensha, 1987.
7.    Okoth-Ogendo and Brokensha, 1987.
8.    Ostrum, 1986, in Bruce and Fortmann,1988.
9.    Bruce and Fortmann, 1988.
10.   Bromley, 1991.
11.   Fortmann and Riddell, 1985.
12.   Leach and Mearns, 1988.
13.   Barrow et al., 1988.
14.   Barrow, 1991.
15.   Leach and Mearns, 1988.
16.   Fortmann and Riddell, 1985.
17.   Haramata, 1990.
18.   Okoth-Ogendo and Brokensha, 1987.
19.   Riddell, 1987.
20.   Okoth-Owiro, 1988.
21.   Fortman, 1987.
22.   Okoth-Owiro, 1988.
23.   Laws of Kenya, Cap. 300, 1985.
24.   Laws of Kenya, Cap. 288, 1970.
25.   Wanjala, 1990.
26.   Wanjala, 1990.
27.   Weekly Review, 1991.
28.   Wanjala, 1990.
29.   Wanjala, 1990.
30.   Storas, 1987.
31.   Okoth-Owiro, 1988.
32.   Scherr, 1989.
33.   Fortmann and Riddel, 1985.
34.   Scherr, 1989.
35.   Scherr, 1989.
36.   Okoth-Ogendo and Brokensha, 1985.
37.   Scherr, 1989.
38.   Bruce and Fortmann, 1988.
39.   Ecosystems, 1985.
40.   Brainard, 1981.
41.   Barrow, 1986.
42.   Ecosystems, 1985, pp. 3‘4.
43.   Hogg, 1986.
44.   Rev. Tony Barrett, Catholic Diocese of Lodwar, pers.
      Comm.
45.   Shepherd, 1991.
46.   Barrow, 1991.
47.   Chambers and Leach, 1987.
48.   Barrow, 1991.
49.   Storas, 1987.
50.   Burke, 1987.
51.   Storas, 1987.
52.   Laws of Kenya, Cap. 288, 1970.
53.   Such conflict has arisen at Katilu. See Broch-Due and
      Storas, 1983.
54.   Storas, 1987.
55.   Storas, 1987.
56.   Oba, 1989.
57.   Okoth-Ogendo and Brokensha, 1987.
58.   Norconsult, 1990.
59.   Lane, 1990.
60    Grandin, 1987.
61.   Franke and Chasin, 1980.
62.   Shepherd, 1991.
63.   Laws of Kenya, Cap. 385, 1982.
64.   Okoth Ogendo, 1987.
65.   Mathias-Mundy et al., 1990.
66.   Lane and Swift, 1988.
67.   Okoth-Ogendo and Brokensha, 1987.
68.   Little and Brokensha, 1987.
69.   Shepherd, 1991.
70.   Franke and Chasin, 1980.

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  worms - and more are expected to come crawling out. May 24,
  pp. 6-10.
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