1
Customary Law And Integrated Water Resources Management:
A case for Indigenous Institutional Governance.
IWRM And Environmental Domicile.
Paper for the WATERNET/WARFSA Workshop 2004
Jim Latham and Claudious Chikozho
Centre for Applied Social Science
University of Zimbabwe
ABSTRACT
Catchment management is often perceived to be best achieved on a catchment wide basis.
This is the conventional view held by hydrologists and water engineers: i.e. by water
managers. (van Koppen, B; 2002)
Social Science and specifically social ecology would argue that natural resource
management is achieved by a congruence of the resource and the institutional
arrangements that best “fit” users’ worldviews and perceptions; that are understood by
the users and which can be enforced by local institutional sanctions (common law).
(Murphree and Mazambani, Prichard, L 2000; Davidson-Hunt and F Berkes, 2000 )
This raises issues of scale, both temporal and spatial. At what scale, and by what
definition of scale is the resource to be managed. As Prichard states, “What is the optimal
scale at which to manage? Given knowledge about environmental variability and
resource use variability, is it possible to vest institutional responsibility at the right
scale?” (Pritchard, L.2000) There seems to be a convergence of opinion that supports the
notion that the smaller the unit of management, and therefore the lower it is on the
hierarchical scale, the better. (Schumaker, Murphree)
Ecological and social processes are not bound by scale alone. Hierarchical levels are only
loosely coupled. The strength of the cross-scale connections varies over time. Large
systems move slowly through their cycle of renewal as opposed to smaller systems that
move at a more accelerated pace. (Ruitenbeek and Cartier) Thus the negotiation of
management authority may not always depend on “fit” because institutional changes are
seldom neutral in regard to the distribution of power and resources. Local powerful elites;
regional and State technocrats and bureaucrats influence the pace and effectiveness of
institutional acceptance of endogenous influences, as well as the degree and functionality
of decentralisation. In the case of Zimbabwe the dysfunction between formal second tier
government (rural district councils); catchment management institutions (catchment
councils) and indigenous institutions of government is exemplary.
“Culture” and “custom” are of course not immutable concepts. In conventional western
science the desired state was some sort of equilibrium, equating to the “carrying
capacity” of the environment. To achieve and maintain equilibrium, society it was
suggested, made use of rituals to effect changes. (Rappaport, 1967; Anderson, 1973;
Moran, 1979) A more contemporary view suggests on the contrary that society is
dynamic, ever changing, in the light of impacting influences from the wider environment.
The interface between ecological and social sciences fuses in a common desire to deal
with the science of complexity. (Davidson-Hunt, J and F. Berkes, 2000) The methods of
2
reductionist science have run into their inherent limitations and constraints.1 This has led
to the broader investigation of humans as part of the ecosystem. (Holling, 1973; Vadya
and McCay, Ostrom, E; Murphree, M; Scoones, I, Davidson-Hunt and F Berkes; Gadgil;
et al) Rappaport’s notions have been challenged by Vadya and McCay (1975). They
postulate that an on-going process within ecosystem/social systems, individuals and
societies enables iterative, adaptive change in the face of environmental challenges and
responses. Those societies that are effective in this process are said to have resilience.
Resilience is the opposite of stability, which implies an inflexible, condition less able to
adapt. Stable institutions are dependent on stable environmental conditions. They are
vulnerable to hazards and surprise (See also Ruitenbeek and Cartier, 2001, Holling, C
1986).
Any study of customary law as an appropriate vehicle for the management of water needs
to be cognisant of the notion of resilience as a prime ingredient of indigenous institutions
in their ability to manage surprise, exogenous intrusions and to sometimes rapidly
develop mechanisms for the management or co-management of resources. It is its very
dynamism that provides it with a competitive edge in the hazardous navigation of an
ever-changing environment. Indeed, this ability to adapt has given rise to the term
adaptive management (Jiggins and Roling; 2000). Resilience in this sense is coterminous
with flexibility (Davidson-Hunt and Berkes; 2000)
The other important facet demonstrated by the literature is that scholars have moved to a
position where they envision a human-in-environment holistic system rather than a
human and environment dichotomy. This we present as a paradigm where the
sociosphere and the biosphere overlap and merge. It is in this arena that researchers,
development practitioners and civil society engage in the management of complexity. It
is in this arena that we now speculate that it is customary law and practise that may offer
solutions to enduring, functional management systems, largely because customary law is
institutionally resilient, adaptive and, most important, relevant to the societies that depend
on it for the governance of their daily affairs. (Latham, CJK; 2002) Contrary to
perceptions held by scholars in the nineteenth and mid twentieth century, “custom” is not
immutable or slow changing. In circumstances of rapid change custom adapts to suit the
conditions it is faced with. (“Custom” like “fashion” is an expression of the current social
environment.)
Zimbabwe, in the management of water has moved to a position where it claims to
engage stakeholders’ participation in the management of water. The Water Act of 1998
empowers catchment councils to manage water resources within defined river
catchments. The Act de-concentrates some significant powers to sub-catchment councils.
SCCs are delineated by river basins. Some CC’s have determined that these sub-units are
spatially too large for local management to be effective and have introduced a third, nonstatutory tier, called a water user board or association. These emerging institutions will be
or are supposed to manage aspects of their common pool water resource. They are
empowered to recommend applicant water users for permits issued by the CC; monitor
use by those already issued with permits to ensure compliance; monitor water pollution
and environmental malpractices; and recommend potential water development schemes
as part of their integrated water resource management strategies.
1
Descartes, (1630) the father of reductionism, using his reductionist methodology deduced that a vacuum
was impossible - a graphic example of the limitations of Cartesian theory!
3
The dilemma faced by those engaged in the process has been how to reconcile these new
institutions with existing institutions: provincial and district central government
structures, statutory district local governments (rural district councils) and traditional
(indigenous) institutions of governance. There are immense problems in achieving any
sort of fit between the spatial dimensions of the resource and the institutions of resource
governance. Nested levels of jurisdictions are in place. Which of these will show
themselves to have relevance and applicability to local user communities may depend on
their resilience and upon their congruence with accepted perceptions. “It has been
documented …that local-level institutions learn and develop the capacity to respond to
environmental feedbacks faster than do centralised agencies.” (Davidson-Hunt and
Berkes;2000)
The Manyame Catchment Council and the Mazowe CC are two such areas that have been
the subject of a longitudinal study by researchers from CASS. (Latham, Chikozho,
Sithole) Concurrent and relevant studies have also been undertaken into resource use –
land, wildlife and their related institutional arrangements/complexities. (Derman,
Spierenburg, Welford, Latham) and have pointed to a disjunction between local
perceptions of resource utilisation and those envisaged by Central Government, Local
Government and in some cases, NGOs.
The Shona system of governance has three cardinal features that are important in an
understanding of their notions of governance.
The first is a system of nested levels of jurisdiction from the level of the chief through the
level of the ward headman down to the village headman. Secondly, at each level the
DARE (forum, assembly) consists of the traditional leader supported by a body of
advisors or councillors. All matters concerning daily life are the concern of the dare,
which addresses issues brought before it in a manner both inclusive and conciliatory.
Thus judicial cases are heard; land and other resource allocations and disputes are
arbitrated; decisions are reached with regard to traditional religious obligations to the
founding spirit ancestors (mhondoro) and development plans are considered. The word
used for these transactions is kutonga. Kutonga means to rule or govern. It also means to
adjudicate in a legal cause of action. The dare is a public forum. Anyone may attend and
speak. Women are not excluded. The institution is characterised by its inclusive nature
and by its primary function of encouraging community cohesion. Re-enforcing the
jurisdiction of the dare is a strong association of the living members of the community
with those of the ancestral spirits who in turn are communicants with the Supreme Being
(Mwari). Reinforcing sanctions of community condemnation for transgressors, is the
ultimate sanction of the shades.
Within the Manyame catchment is the proposed Dande Dam and Irrigation Scheme.
Because the perceived outcomes of this development are by no means seen as beneficial
to a large sector of the population, the spirit-mediums representing the affected
communities have been active in opposing it. Customary law and practise has been
invoked to support their position, which is a reflection of community concerns. This
strategy has had local, district, national and international ramifications. This paper
synthesises studies that have already been undertaken centred on the Dande Project. This
paper examines and analyses the data as a reflection of indigenous institutional resilience.
At a much lower and local level is the Murisa dam project. This is a small water point
partly serving a traditional ward community. It is the focus of a longitunal study as part
4
of a CBMNR participatory research programme. The dam and attendant micro-irrigation
scheme are in place. The local user community is embarking on determining and
codifying users’ rights of access and exclusion. This is to be done using customary law as
a base and the recently promulgated Traditional Leaders Act, (1998) as the legal
instrument providing institutional support. This is science in action and offers an
opportunity for researchers to combine with civil jurists, in the determinations that will
emerge.
The two case studies complement each other. They also provide contrasts of scale. Both
show how local communities use strategies rooted in “customary practises” and belief
systems (worldviews) to reinforce their positions and maintain a (controlling) influence
over their resources.
This paper is a
Bibliography:
Anderson, J.N. Ecological Anthropology And Anthropological Ecology. In Handbook
Of Social And Cultural Anthropology. Chigago; Rand Mcnally And Co.
Bennet, J. 1969. Northern Plainsman. Adaptive Strategy and Agrarian Life. Arlington
Heights; AHM Publishinh
Berkes, F. 1999. Sacred Ecology. Traditional Ecological Knowledge and Resource
Management. Philadelphia; Taylor and Francis.
Davidson-Hunt, I.J and Fikret Berkes. 2000 Environment and Society through the Lens
of Resilience: Towards a Human-in Ecosystem Perspective. IACP Conference,
Bloomington.
Gadgil et al The People’s Biodiversity Register Programme.
Holling, C.S. 1973. Resilience and Stability of ecological Sytems. Annual Review of
Ecology and Systematics 4:1-23
Jiggins and Roling. 1999.Adaptive Management: potential and limitations. Paper
presented at Workshop on Adaptive Management, Wageningen University, Wageningen.
Koppen van, B. Critical Analysis of River Basin Management in the Great Ruaha,
Tanzania. Paper presented to WATERNET conference, Tanzania 2002
Latham, C.J.K.1999 Local Level Management of Natural Resources; A longitudinal
Perspective. IUCN Vol. III.I
Latham, C.J.K. 2002a Nyika Vanhu: The Land is the People: An examination of natural
Resource Management in Zimbabwe APAD Leiden (Paper presented at Leiden
University, APAD Conf.)
5
Latham, C.J.K 2002b The Manyame Catchment Council; A review. In Physics and
Chemistry of the Earth; Elsevier
Latham, C.J.K 2002c Institutional Complexity and the Management of Water as a
common pool resource. Paper presented at the WATERNET conference, Dar es Salaam
Latham C.J.K. 2000d Worldviews, Science and Common Property Governance. Paper
presented to IASCP Conference, Victoria Falls.
Murphree M. 2000.Boundaries and Borders: The question of scale in the theory and
practise of Common Property Management. CASS UZ (Unpublished paper)
Murphree and Mazambani. (Forthcoming) Policy Implications of Common Pool
Resource Knowledge. A Background paper on Zimbabwe.
Ostrom, E. 1990 Governing the Commons. CUP.
Pritchard, L. 2000 Cross-Scale Dynamics and the Political Economy of Resilience.
IASCP Conference, Bloomington.
Rappaport, R. A. 1967. Pigs for their Ancestors: Ritual in the Ecology of a New Guinea
People. New Haven, Yale UP.
Ruitenbeek, J.and C.Cartier. 2001. The Invisible Wand: Adaptive Co-management as an
emergent Strategy in Complex Bio-economic Systems.
Schumaker, 1973 Small is Beautiful: As if People mattered. CUP
Scoones, I. 1999 New Ecology and the Social Sciences. Annual Review of
Anthropology.
Spierneberg, M. 2003. Strangers, Spirits and land Reforms. Conflicts about Land in
Dande; North Eastern Zimbabwe. Amsterdam school of Social Science.
Vadya, A.P. and B.J. McCay. 1975. New Directions in ecology and ecological
Anthropology. Annual Review of Anthropology 4.293-306
6