Traditional natural resource conflict resolution vis-à-vis formal legal systems in East Africa: The cases of Ethiopia and Kenya

Abstract

The article analyses how the formal legal systems in Ethiopia and Kenya marginalised and prevented traditional forms of resolving conf licts over natural resources. Both countries best illustrate two rapidly growing economies in transition. However, in Ethiopia and Kenya, conflicts over natural resource have to be understood in relation to their respective histories, politics and legal frameworks. Ethiopia maintained its freedom from colonial rule with the exception of a short-lived Italian occupation from 1936 to 1941. Nonetheless, like all other African nations, it has a colonial heritage self-imposed onto its legal systems through the process of codification. In contrast, Kenya was a British colony until its independence in 1963 and its colonial administrative structures had different impacts on its traditional institutions and systems dealing with resolving conflicts of natural resources. The political dimension of natural resource conflicts in these two countries is manifested in the low recognition given to the traditional institutions. The political motives and justifications for marginalising traditional dispute-resolving mechanisms in both countries are primarily based on the belief that providing a uniform and modern legal regime would promote socio-economic development and also serve as a precondition for effective nation building. The main argument in this article is that the formal mechanisms for resolving conflicts over natural resources in both countries – which adopted the Western-style systems – need to be complemented by traditional institutional practices. It highlights the need for synergy between the formal and traditional institutions. This synergy is characterised as a form of hybrid natural resource conflict resolution. The article attempts to explore the regime of traditional natural resource dispute resolution in Ethiopia and Kenya, and recommends a way forward.

Keywords: Ethiopia, Kenya, codification, customary law, formal legal system, natural resources, formal conflict resolution and traditional conflict resolution