By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021.*
Conflict has been defined as a struggle over values or claims to status and resources, in which the aim of the conflicting parties is not only the desired values but also neutralize, injure or eliminate their rivals. Conflict is seen as an inevitable phenomenon in human society’s sphere of life since the entire life of humankind is manipulated by the prevalence of conflict within the society when people set opinion against opinion, run interest against interests. It has been observed that almost all societies, regardless of their location in time and space, have laws and mechanisms for handling disputes/conflicts and achieving resolution of differences. The causes of environmental conflicts vary across the globe and their manifestations differ considerably. Causes can range from control over vital environmental resources to contestations over natural resources at the community and/or household level. It, therefore, follows that such mechanisms are informed by knowledge originating from within such communities.
Traditional Ecological Knowledge (TEK) comes in handy when such communities are to deal with environmental conflicts. There has also been documented evidence to the effect that that if conservation and environmental management policies are not formulated and implemented in a holistic way to balance the needs and interests of conservation and people, it can lead to conflict. Environmental deficiencies supply conditions which render conflict all the more likely. They can serve to determine the source of conflict, they can act as multipliers that aggravate core causes of conflict, and they can help to shape the nature of conflict. Moreover, they can not only contribute to conflict, they can stimulate the growing use of force to repress disaffection among those who suffer the consequences of environmental decline.
While environmental conflicts take on different forms and have multiple and varying impacts in different contexts, the key points of conflict are in relation to climate change, conservation, water quality and availability, air quality and management aspects. Communities have special relationship with the environment in their areas and any adverse effect on such environment directly interferes with the livelihoods of the community. Shocks to natural systems are anticipated and where rights and processes are uncertain, this may lead to conflict. Such conflict can be between similar resource users (e.g. between pastoralists), or between users with different needs (farmers versus pastoralists), or even within families where gender based violence appears to surge with climate stresses.
Although customary laws vary widely between communities, underlying customary principles or values such as reciprocity, equilibrium, duality and brotherhood/solidarity are quite consistent across different ethnic groups. These principles give rise to the obligation to openly share bio- resources and TK; to reciprocate/ exchange equally; to maintain harmony in society; to help those in need; and to respect nature. The resilience of indigenous peoples and local communities, as sustained by their cultural systems which have adapted to local ecological niches over long timeframes, and the detailed and broad knowledge they have of adaptation, is affected negatively by the loss of land, ecosystem capacity, and alienation of culturally significant places, migration and losses in livelihoods.
The element of traditional knowledge includes moral and ethical statements about the environment and about the relationships between humans, animals, and the environment; the “right way” to do things. It has correctly been observed that ecological knowledge does not function in isolation but it is, instead, embedded in institutions and local social norms. Further, the structure and dynamics of institutions are critical for implementation of management practices based on ecological understanding in any society. The coordination of appropriate resource use practices is often entrusted with traditional leaders. Traditional conflict resolution practices reflect principles of reconciliation based on long-standing relationships and values. They tend to be effective in addressing intra-community and even intercommunity conflict, where relationships and shared values are part of the reconciliation process.
Traditional mechanisms are rooted in the culture and history of the African people. They emphasize group unity, reconciliation of individuals or groups, and peaceful reintegration into the community. Traditional techniques place the interest of the group above that of the individual. They assume that all parties are interested in and affected by the conflict. The goal is to reconcile the parties to the conflict so that there is a return to social harmony—the goal of cosmopolitanism. It has rightly been argued that social realities within societies should be taken seriously and conflicts should be viewed as non-isolated events in their social contexts. This is because when Africans sit down to discuss a conflict, the talking usually covers all kinds of relevant background and goes into the thoughts and intentions of others.
The elders from a family, clan or state see their traditional objectives in conflict resolution as moving away from accusations and counteraccusations, to soothe hurt feelings and to reach a compromise that may help to improve future relationships. They also dwell on values, aspirations, perceptions and visions. However, it has been asserted that while local people possess a great store of knowledge which they can draw upon to manage their environments, often with great success, such knowledge should not be seen as an unchanging set of rules for conduct. Indigenous knowledge-whether about farming or settling disputes, does not provide a set formula for community decision-making. It is simply a repertoire of ideas and actions from which individuals and communities faced with specific problems can draw, depending on their own level of knowledge, their preferences, and their ability and motivation to act. There has been emphasis on the importance of achieving constructive conflict resolution in natural Resource Management (NRM) and highlight the importance of local government structures and traditional leaders in managing conflicts in developing contexts.
In this regard, Community-based approaches to NRM and conflict resolution are deemed to be useful, particularly to promote locally based, indigenous management strategies. It has been suggested that drawing TK/IKS holders into decision-making and policy dialogue may valorize TK/IK knowledge, facilitate participation of traditional customary resource management institutions while informing and adjusting national or subnational policy to find equitable, socially just, and environmentally well-informed solutions during times of extreme weather shocks or threshold crises of natural resource systems. This is based on the assertion that participation in both decision-making and locally-owned conflict resolution strategies are more likely to be sustained and respected. Local institutions that are aligned to traditional values, clan systems or other local social network, may be able to identify opportunities for resolution that are not evident to outside arbitrators or judges. Since indigenous mechanisms of conflict management are based on the very values and tenets of the people, they maintain and protect the customs and traditions of the society. Thus, they are able to solve long standing disputes and promote durable peace.
*This article is an extract from the Article “Harnessing Traditional Knowledge for Environmental Conflict Management in Kenya” by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Harnessing Traditional Knowledge for Environmental Conflict Management in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2018/08/traditional-knowledge-and-conflict-management-29-september-2016.pdf (accessed 22 April 2022).
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