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ABSTRACT
Natural resource management institutions overlap in rural areas, particularly in the Global South. These institutions include state agencies, officials implementing state laws of property and resource use, informal authorities with local legitimacy, and new participatory institutions like community forest associations. For some scholars, their fractious interactions, often denoted as “legal pluralism,” present a problem for sustainable resource management. Others have pointed out the potential benefits of pluralism for sustainability, such as flexibility in response to social and environmental changes. This article attempts to open up this debate by applying a pragmatic legal pluralism analysis – analyzing the history and cultural context for legal pluralism among miraa farmers in Nyambene, Kenya. Miraa is a legal but sometimes criticized stimulant that, because of government neglect, has provided space in Nyambene for some informal natural resource management. Looking at the dynamic over time between state law and local institutions in Nyambene, it is possible to tease out two factors that are key to connecting legal pluralism and sustainable behaviors. These two factors are institutions’ semi-autonomy (the ability to make and enforce their own rules within legal constraints) and their moral rewards (the ability to promote individuals for adherence to a moral code).
Acknowledgements
This work was supported by the U.S. Department of Education under the Fulbright-Hays Doctoral Dissertation Research Abroad Program (2014). The author wishes to thank Isaac Mwenda Mauta, Ezekiel Mwithalii Kaituyu, Kennedy Opiyo, and Professor Harvey M. Jacobs for their generous contributions to this research project and also two anonymous reviewers for their insightful comments on an earlier draft.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. Meru County as a whole had a population density of 424.4 people per square kilometer in 2009 (KNBS Citation2009 Census). The story of rising population and shrinking smallholder plot sizes is a common one across arable lands in Kenya (Muyanga and Jayne Citation2014). This same story was told by many research participants in Igembe.
2. There was some disagreement among research participants as to whether a family could sustain itself on the food crops intercropped with miraa. Some farmers said that they could grow enough food on two acres, intercropped with miraa, to support a family (if there was sufficient rainfall). Others felt that increased miraa production in the mid-elevation zone had made it necessary to expand food production in lower zones. One person estimated that a farmer could earn the equivalent of 2500 to 5500 U.S. dollars per year from one acre of miraa (a very rough estimate since miraa prices are highly volatile and farm productivity is highly variable).
3. There is a long history of concern about miraa consumption in Kenya and a corresponding history of proposed regulation (see Carrier Citation2007, 13, 230–242, 250; Anderson et al. Citation2007, 101–106).
4. Reconstruction Committee Memorandum No. 1 1955, KNA (Kenya National Archives) DC/MRU/7/1.
5. Soil Conservation Report July–Dec 1946, KNA DC/MRU/2/2/16; T. W. Morgan, “Trees in the Meru Reserve,” 1 April 1955, KNA DC/MRU/7/1.
6. V. M. McKeag, “Native Land Tenure and Inheritance,” 29 July 1938, KNA DC/MRU/2/4/9; V. M. McKeag, “Native Land Tenure,” 26 November 1938, KNA DC/MRU/2/4/9; H. E. Lambert, “The Place of Stock in the Native Social System,” Meru District Annual Report 1938, KNA DC/MRU/2/4/9; V. M. McKeag, “Collective Farming in Meru,” 2 August 1944, KNA DC/MRU/2/4/9.
7. V. M. McKeag, “Collective Farming in Meru,” 2 August 1944, KNA DC/MRU/2/4/9.
8. Meru DC, letter to Central PC, 9 April 1946, KNA DC/MRU/2/4/9; Meru DC, letter to Church of Scotland Mission, Chogoria, 28 July 1950, KNA DC/MRU/2/2/16; C. W. Williamson, Meru District Agricultural Officer, letter to Meru DC, 1 August 1953, KNA DC/MRU/2/2/16.
9. The impact of age set on agroforestry is somewhat indirect. The main responsibility of age set councils (both male and female) was to regulate morality of members.
10. The age of circumcision has varied over time but in general is around 18 years.
11. Ishida (Citation2008) notes that an age set had a relationship of rivalry with the age set immediately above it. Rivalry might prompt some agricultural innovation (as Goldsmith suggests).
12. This is a complex story that has been told by others (e.g. Bernard Citation1972; Goldsmith Citation1994). Intercropping (particularly of multiple tree crops and mwenjela-yams) is a tradition that has been adapted to agricultural intensification. Notably, many of the farmers in the well-situated middle elevation zones are able to acquire other smallholder parcels, sometimes in lower zones and sometimes in the middle and high elevation zones. Buying additional small plots is a common investment strategy, and it complicates the mainline story of rising population pressure, consolidated parcels, increasing land fragmentation, and increasing agricultural intensification.
13. W. A. Burgwin, District Ag. Officer, Meru, letter to Asst. Dir. of Ag., Central Province, 18 January 1962, DC/MRU/2/2/16. See also Okoth-Ogendo (Citation1991).
14. E.g. Igembe Agricultural and Veterinary Committee Meeting Minutes, 27 August 1963, KNA DC/MRU/2/2/1 (discussing “stage development” plans for individual farms and how such plans can be imposed as a condition for agricultural loans).
15. E.g. Letter 19 September 1972, KNA DC/MRU/2/2/16 (complaining that people in Igembe and Tigania were being allocated private parcels on steeply sloping land and then were asserting their right to farm it against government land use rules).
16. Variability is apparent from frustrated letters from Meru officials asking why chiefs (most notoriously in Igembe and Tigania) had not been implementing land policies. See e.g. DC Meru, letter to Chief Albert Mathiu, Tigania, 11 March 1977, KNA DC/MRU/2/2/16; Ag. Officer, letter of 26 February 1971, KNA DC/MRU/2/2/16; District Ag. Officer, letter of 19 July 1969, KNA DC/MRU/2/2/16.
17. This includes e.g. the Agriculture (Basic Land Usage) Rules (forbidding cultivation beyond 35% slope, requiring contour plowing on slopes exceeding 12%, protecting land adjacent to watercourses); the Farm Forestry Rules (encouraging tree planting and restricting cutting in order to achieve the required 10% tree cover on all agricultural lands); and the Chiefs’ Act (giving chiefs discretion to issue their own orders to regulate tree cutting, to prevent wasteful destruction of trees, to prevent water pollution, and to prevent grazing in certain areas, among other things).
18. According to one official, the civil service has “performance-based contracting” which means that if an official improves in meeting policy targets, he or she can be recommended for promotion or even be given a bonus of one month salary. Lower marks of employees negatively affect the marks of the supervisor.
19. There is no shortage of existing land use bylaws. In addition to the land use enforcement powers of chiefs, there are the 1965 national Agriculture (Basic Land Usage) Rules, the 2009 Farm Forestry Rules, and the 2011 Land Use Guidelines by the National Environmental Management Authority. The Agriculture, Fisheries and Food Authority Act of 2013, Art. 21–23, requires the cabinet secretary for agriculture to make national soil conservation “rules” and “guidelines,” which the county implements (Art. 29(3)). The counties are authorized by the Act to issue land preservation orders to private landowners (Art. 32–39) and have their own authority to pass county land use legislation that is in accordance with national guidelines (Art. 29(3)). The 2010 Constitution also requires the state to “achieve and maintain a tree cover of at least ten percent of the land area of Kenya” (Art. 69(1)), and creates a general right and duty for individuals with respect to a clean and healthy environment, that would also cover land use, that can be enforced in court.
20. Ishida (Citation2014) obtained a written record of clan-level dispute resolution in Muringene village in Igembe. Of eight cases that he discusses, six involved land.
21. During research in 2014–2015, only one person was seen openly spraying pesticide on miraa, and this was a hired worker on a monocropped miraa farm near Meru National Park who worked for an absentee non-Meru landowner.
22. The negative consequences of being cursed could include anything, from crop failure to death. Research participants on numerous occasions gave examples of when a person's bad behavior led to that person being cursed which in turn led the person to go insane. See e.g. Bernardi (Citation1959, 203).
23. The Constitution of Kenya, 2010, 159(2)(c); Chief Justice Willy Mutunga, Remarks at the Induction Retreat for Cohesion and Integration Goodwill Ambassadors, Crowne Plaza Hotel, Nairobi (August 29, 2010).
24. This is part of a nation-wide effort to improve the Kenyan court system. The groups that meet quarterly are called “Court Users’ Committees.”
25. See e.g. Erastus Gitonga Mutuma v Mutia Kanuno et al. HCCC No. 132 of 2011 (Kenya), in which the High Court issued an injunction forbidding the Njuri from exercising jurisdiction and administering a traditional oath in a land dispute case in which one of the parties did not agree voluntarily to Njuri jurisdiction. “Njuri Ncheke is not a court nor a tribunal established under the Constitution of Kenya…”
26. V. M. McKeag, “Native Land Tenure,” 26 November 1938, KNA DC/MRU/2/4/9.