Developing Local Capacity for Management of Natural Resource Conflicts in Africa A Review of Key Issues, Approaches, and Outcomes

Developing Local Capacity for Management of Natural Resource Conflicts in Africa: A Review of Key Issues, Approaches, and Outcomes A Peter Castro Chair & Associate Professor Department of Anthropology Maxwell School of Citizenship and Public Affairs Syracuse University Syracuse, New York, 13244 Paper prepared for SANREM-CRSP Final Draft April 2005 Introduction1 My paper critically assesses key issues and approaches in community-based natural resource conflict management in light of USAID’s recent framework ‘Nature, Wealth, and Power’ (NWP) Its purpose is to provide a clearer understanding of challenges and options regarding natural resource conflicts and attempts to manage or resolve them Africa appears to be experiencing increasing conflicts concerning land and natural resources Although it is often noted that conflict can be a positive force for social change, our contemporary world also shows that localized conflicts can erupt into widespread violence and upheaval, resulting in human rights abuses, disrupted economies, and dislocated populations Because land and natural resources are so close to livelihoods and identities in Africa, conflicts over their access and use demand special attention for anyone concerned with its development There are four parts to this paper The introductory section contains a brief assessment about the NWP framework, including some of its assumptions about conflict management and the broader agenda of African development The framework offers a positive program for action but can be strengthened by contextualizing more clearly the conditions and trends it tries to address What are the sources of the issues and problems associated with nature/resources, wealth/economics, and power/governance highlighted in NWP? What contributes to their perpetuation? Such information is vital for proper planning, including overcoming obstacles and pitfalls arising from inaccurate or incorrect assumptions The next two sections of my paper try to address this need by examining the social and historical dimensions of African land and natural resource conflicts The analysis identifies the intractable nature of many of these conflicts, which originate in inequalities embedded in the national policy frameworks set up for administering land during the colonial era It also describes efforts in recent decades by independent African governments to reform their national policies through a range of interventions, including many recent participatory endeavors At the same time, the paper reveals how political, economic, demographic, and other socioeconomic factors are altering people’s relationship to land and to each other, triggering more conflicts Unfortunately, it is not possible to present detailed case materials in this paper, though hopefully readers will consult the references for further information Given this setting, the last part of the paper examines current practices in natural resource conflict management It opens with a discussion of some current patterns, especially how people make use of a range of legal orders and of conflict management processes in trying to resolve conflicts The paper next looks at strengths and weaknesses of three major modes of conflict management processes: Alternative Dispute Resolution, which is popular with international donors; national legal systems; and informal conflict management, which the NWP framework identifies as highly significant All three modes offer enormous potential, yet they all possess limitations, including all sharing problems of accessibility for women, the poor, and other socially marginalized groups It is also noted that evaluative studies of Alternative Dispute Resolution’s effectiveness and impacts are required to see if its apparent popularity and its negative imagine among critics are warranted Deciding which mode of conflict management to apply in a particular situation is something that needs to be decided on a situation-specific basis – there is no easy guide Overall, it is crucial for the NWP framework to maintain its focus on I am grateful to Carlos Perez, Carla Roncoli, and David Brokensha for their comments on previous drafts governance and power issues Good governance is a prerequisite for truly effective natural resource conflict management, which itself is an essential component for securing and improving livelihoods As Gay (2004: 80) observes, however, the meaning of “good governance” ought to be defined by people out of their national and local experiences and needs, rather than based on a supposed superior external model The Nature, Wealth, and Power Framework Nature, Wealth, and Power is a 35-page document offering a guide for future rural development investment in Africa At first glance its appealing design of text interspersed by wide margins, colorful information boxes, and figures make it appear to be light reading Yet there are many profound and compelling passages contained within it The NWP framework’s principles and action recommendations derive from a synthesis of the experience of natural resource-based interventions during the past two decades The core concept is that policies and programs must integrate environmental management (nature), livelihood/economic concerns (wealth), and good governance (power) The tone of NWP is not only positive but also upbeat, furnishing a forceful counterpoint to the chronic pessimism and gloom about Africa’s future The framework emphasizes the role of knowledge, social learning, capacity building, and incentives, as well as markets and other institutional settings where people can make choices about natural resources in their own self-interest NWP acknowledges the need to address political dimensions of resource access, particularly the pressing issues of exclusion and tenure insecurity, which can prevent people from exercising such choice Achieving the good governance necessary to fulfill the NWP vision of environmental and economic sustainability requires substantial reforms such as strengthening procedural rights for rural people, increasing their participation in decisionmaking, and establishing institutional forums or platforms, especially at the local level, where ongoing and inclusive communication about natural resource issues is possible It also requires making officials more accountable, reallocating authority to institutions best positioned to exercise them, and fostering pluralistic approaches to problem solving The principles and recommendations of the NWP framework have significant implications for managing natural resource conflicts, creating the potential for new rights regimes and policy frameworks that are more sensitive to the needs of most rural dwellers Importantly, NWP portrays conflicts in natural resource management as “learning opportunities.” But there is also the need to “facilitate conflict management,” including use of “nonformal” processes and mechanisms The NWP framework also warns of relying on consensual approaches to natural resource (and presumably conflict) management: Consensus is positive when freely given and adequately informed, but this is rarely the case In addition, consensus, even if reached, can impede creativity and productive effort Other approaches are needed that respect diversity, recognize restrained dissonance or bounded conflict, and respect the autonomy of others (NWP 2002: 31) The choice of words is somewhat ambiguous, since the phrase “facilitate conflict management” is often used to refer to alternative dispute resolution approaches, which rely on consensus Still, the framework is clear that “major obstacles” exist to the use of consensual approaches to natural resource management There is much to commend in the NWP framework, particularly its thoughtful attention to power and governance dimensions Recognition of procedural rights, participatory decision-making, accountability for authorities, the need for conflict management, and avoidance of simplistic consensual models are vital issues for strengthening livelihoods and promoting sustainable resource management In spite of its carefully crafted design, the NWP framework has troubling omissions that render it vulnerable into becoming yet another “blind rush into the unknown” (Bayart et al 1999a: 1) Surprisingly little information is given about current circumstances regarding nature, wealth, and power in Africa For example, the NWP framework states that despite the continent’s rich natural resource endowment, “many rural Africans remain mired in poverty, resources are often mismanaged, and rural people largely disenfranchised” (NWP 2002: 3) Ineffective and inequitable natural resource management is also portrayed as contributing to conflicts at the regional to local levels (NWP 2002: 31) How this appalling situation originated and is perpetuated is not revealed Indicative of this ahistorical approach is the absence of the word ‘colonial’ in the text.2 The text points out that a significant “transition” is occurring in Africa today, with rising “stakes for resource access and control… as evidenced in struggles over resource tenure throughout Africa In socioeconomic terms, there are both winners and losers” (NWP 2002: 15) This passage suggests that tensions and conflicts are increasing regarding land and natural resources, a perception that is widely shared but by no means fully supported by available data (for example, see Hussein et al 1999) Unfortunately, the NWP framework does not touch further upon this question The document does attempt to illustrate its overall points by presenting four cases (from Namibia, Mali, Botswana, and Madagascar), plus a concise “Current Outlook” information box in each section, but it is unclear whether these are typical or atypical success stories No one expects a lengthy historical analysis in a succinct development investment guide Yet, acknowledgment of the origins and complexity of present circumstances is needed, even if done briefly, such as a small textbox with references for follow-up by readers History conditions contemporary social action, and failure to take it into account results in disappointing policies, programs, and projects (see Uphoff 1991; Chambers 1997; Castro 1998; Bayart et al 1999b; Bryceson et al 2000; Nolan 2002) Indeed, it is impossible to divorce the analysis of resources, wealth, and power from their historical and social contexts, especially regarding conflict and conflict management processes As Berry (2002: 640) notes, appreciating the link between past and present is especially important in African land conflicts since competing claims are often based on “debates over historical precedents and their relevance to relations of property and power in the present.” I Conflict: Definitions and Dimensions The language of conflict management is notoriously imprecise, with the meanings of key terms such as ‘conflict’ and ‘dispute’ varying widely in the literature (Burton 1996; Warner 2001) For present purposes, ‘conflict’ is defined broadly here as “a state of opposition or hostilities… a fight or struggle [or]… the clashing of opposed principles” (Oxford Encyclopaedic English Dictionary quoted in Oucho 2002: 10) What is crucial is that two or more parties perceive some Other words curiously missing from the Nature, Wealth, and Power framework include pastoralist, herder, and cattle fundamental and underlying incompatibility of interest relative to an issue, thing, or situation related to the environment (Ochieng Odhiambo 2000: 8) This recognition of a fundamental incompatibility of interests sets apart a conflictive situation from a disagreement In a conflict one or more parties “are not prepared to accept the status quo (should that any longer be a possibility) or to accede to the demand or denial of demand by the other” (Gulliver 1979: 75) Natural resource conflicts revolve around access to, and control and use of, land, water, forests, pasture, and related environmental features Such conflicts can occur at all societal levels, from the intra-household to the global Thus, conflicts can differ in their social pervasiveness (the number and types of people involved), and in their geographical scale (ranging from highly localized events to ones on a national or even international scale) (Hussein et al 1999) It must be noted that having a ‘conflict of interest’ in a natural resource is not the same as being in a conflict over it Hussein et al (1999: 399-400) provide a clear statement on the pervasive nature of conflicting interests among natural resource users: Conflict of interest refer to the fundamental relationship between actors who permanently or temporarily co-habit an area, have different objectives and interests, and use similar local resources such as land, vegetation and water Conflicts of interest over the ownership and use of resources therefore may exist between any resource users (farmers and farmers, herders and herders, herders and farmers), and may be intra-household, inter-personal, intra-group, inter-group or in some cases between local users and outside interests such as corporations and the state… conflicts of interest [are] … part of the fundamental relationship between local resource users because they set the stage for competition among them, which in some cases ends in violent conflict Hussein et al (1999) point out that increasing competitive demand for resources can intensify apparent conflicts of interest, though conflict and violence are not inevitable Looking specifically at herder-farmer competition for resources, they observe the existence of “an array of possible outcomes”: people may rely on local natural resource institutions to clarify and enforce their resource rights; or they may engage in avoidance strategies, including retreating, diversifying livelihoods, or seeking new alliances Even if people acknowledge explicitly that a conflict exists, violence is not inevitable, as they may pursue their interests in litigation: “A complex patchwork of forums for pursuing litigation in semi-arid Africa comprises customary institutions (traditional rulers), state administrators and the formal courts, including supreme courts and courts of appeals which have adjudicated in natural resource disputes…” (Hussein et al 1999: 400-401) Analysts also differ in their definition of dispute.3 For present purposes, I will follow Putnam and Wondolleck’s (2003: 37) definition (also see Gulliver 1979) that a dispute refers to an episode where the fundamental and underlying incompatibilities of a conflict “becomes actualized in specific issues and events,” such as a fight, protest, appeal to authorities, or a lawsuit Thus, all disputes are conflicts, but not all conflicts may manifest themselves as disputes It is also useful to distinguish the term insecurity, which refers to situations where personal and collective security, including one’s livelihood, is undermined by conflict, whether manifested by endemic violence, disputes, or chronic tension (Ochieng Odhiambo 2000) Ramirez (2002), for example, essentially reverses the definitions of conflict and dispute used in this paper Latent Conflicts This broad definition of conflict draws attention to the issue of fundamental and underlying incompatibility of interests, rather than on purported manifestations of conflictive situations In part this reflects growing awareness of the importance of latent or structural conflicts in natural resource management Warner and Jones (1998: 2) describes these as: … structural inequalities inherent in legal definitions of land ownership and resource use; regional economic and political elites supporting commercial interests over-and-above those of local groups; and longstanding ethnic and cultural differences These latent conflicts often lie dormant until ‘re-awakened’ by a particular set of developmental pressures Therefore, the apparent lack of outward manifestations of discord or antagonism does not mean that relationships marked by conflict are not present As will be seen below, Africa is beset by latent conflicts concerning land and natural resources that generate tensions, disputes, and, in some places, insecurity These latent conflicts are deeply rooted in Africa’s historical political economy and its cultural institutions, and they are not easily or effectively addressed through local-level interventions such as conflict management training or peace committees Instead, their management or resolution calls for policy or legal reforms, as well as education and wealthcreation programs at the national or regional levels (Warner and Jones 1998) Manifestation and Emergence of Conflict Conflicts manifest themselves in many different ways Some are readily identifiable through open hostility and violence Power’s (2004: 63) account of “the decimated landscaped… the blackened and emptied villages” of Darfur, Sudan, for example, graphically illustrates the impacts of the region’s recent warfare As already mentioned, not all conflicts are so apparent People are not always open in revealing themselves In some cultures conflict is rarely discussed openly (Brenneis 1988) Conflicts are also allowed to smolder quietly because of fear, distrust, peer pressure, financial constraint, or for strategic reasons “Agrarian peace” may be, as Scott (1985: 40) states, “the peace of repression (remembered and/or anticipated) rather than the peace of consent or complicity.” In such situations underlying conflicts may be manifested in reflected in “the ordinary weapons of relatively powerless groups: foot dragging, dissimulation, desertion, false compliance, pilfering, feigned ignorance, slander, arson, sabotage, and so on” (Scott 1985: xv-xvi) Powerful groups may not “frame” (interpret) such actions as being related to a conflict, but instead portray it as criminal or deviant behavior Framing – “the process of constructing and representing the world around us” – is a crucial element of conflicts (Gray 2003: 12) It furnishes self-reports of the existence (or non-existence) of conflicts, and furnishes crucial insights into each party’s perspective, motivations, and possible strategies regarding conflict management At what point grievances or disagreement turn into conflicts is not always easily determined Not all grievances become conflicts, and not all conflicts erupt into disputes But what shifts a grievance into a conflict? First, it is important to recognize that the factors that affect people’s capacity to deal with conflicts are largely the same ones that affect their capacity to cooperate in local resource management institutions, including: perceived benefit of cooperating (over alternatives), size and makeup of the user group, the degree of heterogeneity of interests among both the user group members and their local leadership or elite, expectations and time horizons of resource users, the degree of communication among them, the degree of trust, the willingness to engage in cooperation, the contents of social norms, the skills and legitimacy of leadership, the stability of the group, catalysts to initiate or end cooperation, and cultural practices such as rituals that reinforce social solidarity (Rasmussen and Meinzen-Dick 1995 cited in Arnold 1998; also see Ostrom 1990; Hussein et al 1999; Vedeld 2000; Agrawal 2003) Shifts in these social and related variables alter the incentives or disincentives for cooperating or clashing The choice of individuals and of groups to engage in, or react to, the self-seeking of others, is in many ways analogous At both levels choice-making regarding conflicts, including structural ones, involves: Many considerations are involved in the question of timing, of when and where and against whom to turn a quiescent competitive positive into active into active hostile competition The most fundamental of these presumably have to with the degree of underlying pressure on power and resources, and the degree of encroachment of one’s competitors and the opportunities for bettering one’s own position Between counterpoised groups these basic pressures and positions tend to be long-term and the consequence of a cumulative series of events The issues involved may be so fundamental that they are much more far-reaching than any particular event in the series Yet active confrontation, if it is to occur, must happen at a particular time, place, and occasion (Moore 1972: 76) Ironically, it is this very specificity of time, place, and circumstance that may make a conflict appear to be a discreet, unique event, disguising their structural roots Moore (1972: 77) states: “The legal wrong, moreover, makes it possible to have a show-down without necessarily acknowledging the deeper long-term motives or objectives which may accompany such action.” Such shifts in power and resources, in degrees of encroachment, and in perceived opportunities for bettering one’s own position need to be understood in relationship to external or internal conditions that may shape the emergence and character of a conflict As Vedeld (2000: 126), drawing on Douglas (1986), observes regarding people’s shifts in willingness to engage in common property resource regimes, the issue “must be contextualised, made conditional, and studied as a dynamic process related to changes in social relationships.” Ramirez (2002: 10-11) suggests that two layers of conditioning factors may trigger such shifts in land conflicts: (1) An “accumulation of sources of tensions” that erode or breakdown in the institutional relations governing access to, or use of, land and other natural resources These sources include endogenous population increases, immigration, shifts in social consensus, alterations in land prices or productive potential, confusion over the sources of rules governing resource access or administration, and disagreement over arbitration procedures (2) In response to multiple grievances, a group may seek to “flip” or overturn a formerly balanced conflictive situation by trying to force its own agenda or aims Catalysts to flips include “external interventions, changes in weather, challenges to leadership structures, weak administrative systems or changes in rules or laws.” Another approach focuses on identifying perverse incentives within resource-use and other institutions that foster free riding, corruption, rent seeking, and other sources of conflict (Ostrom 1990) For example, Gibson (1999) argues that perverse incentives created by politically driven wildlife policies in Zambia, Kenya, and Zimbabwe produce poor conservation outcomes and generate numerous conflicts, including between rural communities and officials These types of analyses suggest that certain general thresholds – opportunities, capacities, and perceived costs, and incentives – need to be surpassed for conflicts or disputes to emerge The variables and relationships involved are still unclear, though, and context-specific analysis offers the best route for understanding (Ramirez 2002) Other analysts emphasize that land and resource conflicts are driven by increased competition, which itself is the outcome of demographic, economic, political, social, ecological, and other variables that need to be understood in historical perspective For example, Berry (2002: 639) states: In most countries, the causes of increasing competition and contestation over land have been similar Rapid population growth, environmental degradation, and slow rates of economic development that leave many people dependent on small-scale farming, livestock raising and foraging have transformed Africa from a continent of land abundance in the first half of the twentieth century to one of increasing land scarcity by its end In this view, land conflicts are seen as increasing through time at all socioeconomic levels Meanwhile, Africa’s recent economic, political, environmental, and epidemiological crises have rendered livelihoods more vulnerable, reinforcing the value of land, as people seek it for security Legal pluralism, institutional proliferation, and leadership contests since the colonial era add to growing confusion over land rights, but they also created a socio-political space where multiple claims can be dealt with through negotiations (Berry 2002) Peters (2004: 279) also sees land conflicts arising from Africa’s historical political economy, with increased competition “deriving from multiple sources… focusing on land relations.” Her analysis assigns greater emphasis to processes of exclusion arising from commodity production, livelihood diversification, growing social divisions, conservation programs, reserve appropriation elites, and macro economic policies In contrast, Hussein et al (1999), as well as Kratli and Swift (1999), urge caution in generalizing on conflict trends, particularly the claim that natural resource conflicts are increasing in number and intensity For example, Hussein et al (1999) argue that the lack of rigorous time-series data on herder-farmer conflicts prevents any such conclusion Yet another approach looks at the societal forces that propel widespread rural conflicts and violence concerning land and other resources Paige’s (1975) classic study on social movements and export agriculture examined the pivotal roles of class relations, particularly each group’s relative dependence on land versus either capital or wages for livelihood, in determining the direction and intensity of rural conflicts Buijtenhuijs (2000: 115) points out that by the 1980s “a new phenomenon of ‘predatory war’ emerged in Africa… insurgent movements [who seek]… to secure by force of arms the economic resources in those areas which combatants control.” Some studies attribute these conflicts to widespread poverty, failed governance, and high dependence on natural resources, with countries possessing oil and valuable minerals particularly vulnerable (Elbadawi and Sambanis 2000; Collier and Hoeffler 2002; Addison et al 2003) Others identify ideology, ethnicity, and regional politics as significant contributory factors (Herbst 2000; Oucho 2002; Draman 2003) Many of these analysts emphasize the drive for pecuniary gain as a main motive, with conflict and violence creating opportunities for economic gain not available in peacetime Taking a different track, Bayart et al (1999) argues that widespread African conflicts both reflect and derive from a “recomposition of identities” and a reformation of the state, which is increasingly characterized by the privatization and criminalization of power In contrast, Buijtenhuijs (2000: 119) reasserts the importance of “the age-old peasant concern with land,” and with livelihood, as factors driving Africa’s increasing rural violence The Social Complexity of Conflicts Many rural areas give the impression – at least to outsiders – of pastoral innocence How can conflicts occur in such a seemingly peaceful situation? Yet, André and Plateau (1998: 37) suggest that simmering tensions may not be far below the surface: Rural communities are far from being the havens of peace and the models of altruistic behavior which they are depicted to be in popular accounts inspired by a romantic view of indigenous life Of concealed behind the veil of multiple reciprocal exchange arrangements, there are often at work pervasive tensions and rivalries that must be carefully held in check to avoid disruptions of social order When disputes erupt, as they did in Rwanda, where André and Plateau (1998) conducted a detailed study of land conflicts, it often reflects multiple and deep sociocultural, economic, and political fissures Competition and conflict can follow “myriad social fault lines, pitting national and local elites against ordinary citizens, neighbor against neighbor, kinsmen again kinsmen, and husbands against wives ” (Berry 2002: 639) By the late 1980s in Rwanda, land scarcity and rising landlessness – due to population density, increasing inequalities in landholding driven by market and socioeconomic factors, and changes in inheritance and related customs – contributed to tensions and conflicts which reached not only deep inside communities but within the “very heart of family life” as children clashed with parents and siblings with each other (André and Plateau 1998) Land and resource disputes run the danger of generating more and deeper divisions, undermining the foundations of society, and reducing its ability to deal with largerscale political and social conflicts in a peaceful manner Africans natural resource and land disputes are clearly economic and, increasingly, class-based conflicts Yet, they are not solely reducible to these dimensions alone These conflicts occur within a sociocultural context, shaping and being shaped by it For example, Suliman (1999) argues that violent conflicts in rural Sudan mainly arise from resource scarcity, either from practices that exclude people’s access to them, or from environmental degradation Yet Suliman (1999: 219) notes: However, with the passage of time, ethnic, cultural, and religious affiliations seem to undergo transformation from abstract ideological categories into concrete social forces In a wider sense, they themselves become contestable material social resources and, hence, possible objects of group strife and violent conflict Although usually by-products of fresh conflicts, ethnic, cultural, and spiritual dichotomies can invert, with the progress of a conflict, to become intrinsic causes and, in the process, increase its complexity thereby reduce the possibility of managing, resolving, and ultimately transforming it The diverse Nuba people were forged by resource-based conflicts into a quasi-homogenous ethnic group, who largely perceived their troubles as rooted in ethnic, rather than economic, competition Intractable Conflicts The form and intensity of conflicts vary widely by place, and they also vary through time The phrase ‘intractable conflict’ is used to denote complex conflicts of considerable intensity that persist over long periods (Lewicki et al 2003) Putnam and Wondolleck (2003: 41) observe that: Complexity is linked to the number and interwoven nature of issues and parties in the conflict, the levels or layers of social systems in which dispute reside, and the difficulties of locating arenas in which to address a conflict In highly intractable situations the number and interconnectedness of issues escalates Intensity refers to the high level of emotionality and commitment felt by participants, with such conflicts becoming pervasive, permeating cultural, political, and institutions Not surprisingly, intractability is also marked by divisiveness – such conflicts can divide and polarize people The durability of intractable conflicts does not mean that it cannot be solved by legal, political, or consensus-based solutions, though these may be difficult to implement given its complexity Instead, it can reflect that for some parties the perceived costs of resolving the conflict are too high and outweigh the perceived costs of continuing with it (Putnam and Wondolleck 2003: 39) Importantly, many natural resource conflicts in Africa possess an intractable character, enduring decades through colonial and independent governments The next part of the paper focuses on the nature of these intractable conflicts Part II: Africa’s Policy Frameworks, Social Settings, and Conflicts Colonial Roots Many of the roots of Africa’s contemporary natural resource conflicts are in the colonial era Although the European powers varied somewhat in their approach, they shared and operated with, as Davidson (1983: 5) reminds us, “the same assumptions for the same purpose Each of them was racist and exploitative.” Legal, policy, and administrative arrangements were set up that served first and foremost diverse colonial interests The Europeans established colonies in a neo-mercantilist pattern in which “micro-level state economic controls and incentives were the norm not the exception” (Green 1977: 53) Colonial governments used legal mechanisms such as reception clauses (“received” law) to formalize their jurisdiction The implications for indigenous land rights were enormous: “All existing customary land laws were subordinated to the received law and so all existing rights in land were at the mercy of the incoming power” (McAuslan 2000: 80) European racial and cultural chauvinism fostered misperceptions and misunderstandings of African landholding and resource-use practices, many of which widely persist to the present Officials generally viewed indigenous land tenure as a pre-modern cultural relic, unsuitable to the demands of a modern economy In addition, colonial authorities often believed many indigenous resource-use practices, including pastoralism and swidden cultivation, to be environmentally damaging, underestimating or ignoring the substantial local and time-tested ecological expertise that provided the basis for such resource-use strategies The lack of legal recognition for indigenous land rights African resource-use systems as highly vulnerable to official intrusion Insecurity over land issues has been one of the most important sources of land conflicts in Africa Even as the racial dimensions faded with independence, the imbalances between the statutory and customary tenure systems still persist as a controversial aspect of African land issues, generating conflict (Bruce 1998) Africa and other world areas suggests that decentralization sometimes exacerbates, rather than reduces, conflicts related to natural resources at the local level (Ribot 1999, 2002) This is because local political and economic elites are at an advantage in pursuing new opportunities Ironically, disputing, including use of violence, may be one of the few options that less powerful groups can use to defend their interests Incorporating customary law into the formal legal system can serve to perpetuate the socially subordinate position of women, as has been the case in Kenya (Human Rights Watch 2003) Attractive and Constraining Procedures In spite of barriers, adjudication and arbitration can be attractive for a variety of reasons The right of equal treatment under the law can extend legal protection to women, strangers, and others not afforded equality under customary laws Griffith (1997) furnishes a detailed case study of women in Botswana who are excluded from direct participation in local arbitration forums called a kgotla that are operated by men They sometimes take their cases directly to the magistrate’s court, despite a language barrier (proceedings are in English) The court is seen as offering a less biased setting, as well as more timely justice There is no need to wait, as in the kgotla, until all relevant family members are assembled Finally, the court gives independence of action – women can handle the matter in a matter of their own choosing Colson (1995) observed a growing preference for local courts instead of customary moots in rural Zambia Gwembe Tonga communities increasingly prefer local courts to their customary neighborhood moots This change reflects new social and political realities: growing individualism regarding property, rejection of the authority of illiterate elders by schooled young people, and a desire to challenge opponents in matters once regarded as too trivial to convene local moots Filing a case with the village court is not expensive, and it bestows the satisfaction of seeing one’s opponent compelled to answer the complaint Beyond the local level, however, dealing with administrations and courts can be costly, their procedures unfamiliar, their decision-making slow, and their justice unpredictable Court fees increase, and lawyers must be hired For many people, lawyer fees are simply too high to afford The case is likely to be heard in a distant urban center, necessitating even more expenses Legal procedures can be complicated and confusing for non-specialists For example, Anderson (2003: 19) points out: “notions of identity and causation, are commonly at odds with the frame of reference used by local communities.” Disputes may not be settled in a timely manner In fact, they may linger in the courts or in administrative offices for years Given these constraints, many environmental advocates recommend lawsuits only as a last resort (Environmental Law Institute 2004) Capacity to Handle Community-Based Resource Management Issues Seeking to increase the scope of the national legal system’s involvement in community-based natural resource conflicts assumes that such institutions have the capacity to so A major issue for many countries is that their judicial systems are generally, if not sometime severely, underresourced, undermining their performance For example, Piron and Norton (2004: 31) note about Uganda: “Financial allocations to justice, law and order have been decreasing steadily, from 8.9% of government expenditure in the 1994/95 budget outturn, down to a projection of 5.9% for 32 the 2003/04.” Doubts about the current capacity of African state bureaucracies to carry out their roles and responsibilities have been raised Hirschmann (1999) offers an especially compelling analysis of bureaucratic decline in the donor-driven “anti-statist” structural adjustment era Bureaucracies are reeling from years of decline in budgets, size, policy-making roles, and material incentives due to donor-driven reforms aimed at economic liberalization and privatization The outcome is ominous: “The danger in many poor countries is that the real and relative salaries, the moral and ethics of the bureaucracy, and public trust in the bureaucracy, have all plummeted so far, that it may be too late to turn these trends around” (Hirschmann 1999: 287) He notes that the current emphasis by international donors on “good governance” may help redress some of this decline, recognizing that the state still has appropriate roles in many spheres Another aspect of capacity deals with the role of community resource management in national policy frameworks As mentioned earlier, community-based rights have been enhanced or strengthened in several countries by reform of national policy frameworks In Tanzania, for example, the Village Land Bill of 1998 contains provisions allowing for recognition of local customary rights This represents a significant shift from prior legislation and court rulings, which denied such rights (Ndonde 2000) Yet several obstacles exist in turning the law into action According to Ringia and Porter (1999), the Tanzanian government has a poor record in disseminating information about environmental laws and their implications Officials seldom allocate resources for media campaigns or capacity-building activities regarding new legislation In addition, few, if any, sanctions are established for failing to inform the public of its rights Not surprisingly, this pattern appeared to be replicated regarding the new land law Ndonde (2000: 121) reports: “little effort has been made to disseminate legal information to the bulk of Tanzanians, particularly in rural areas.” Village councils, which were allocated new responsibilities for land management, received little assistance in understanding its provisions It bears emphasis that these issues go far beyond Tanzania, and also beyond natural resource issues Rural dwellers throughout Africa, as well as other developing countries, often lack knowledge of their legal rights (for example, see BRAC 1990; Anderson 2003) They are also unaware of significant policies and legislation regarding land, natural resources, and other aspects of their lives and livelihoods For the most, they are aware of coercive laws and policies, rather than empowering ones The limited infrastructure available to support legal activities in developing countries adds to the problems The lack of legal publishing capacity in many development countries, for example, hinders comprehensive dissemination of information about laws The results can be tremendous: … knowledge of the law can depend largely upon personal contacts and proximity to the capital city, even for lawyers and judges Where even judges cannot get access to current legal materials, it is unrealistic to expect lawyers or their clients to have an understanding of their applicable legal rights (Anderson 2003: 19) Public outcry can cause governments to devote resources to information dissemination In Uganda, indignation over its lack of popular participation in shaping the new national land law prompted national officials to give priority to its dissemination To oversee the communication process, they created a Sensitisation Program consisting of representatives from government, civil society organizations, and the private media (Palmer 2000) 33 There is a lack of public-interest lawyers in Africa with expertise in community-based property rights Lynch (1997) suggests that professional biases often keep lawyers away from issues involving the customary laws or natural resource rights of poor rural dwellers In many parts of Africa, the absence of lawyers reflects the legacy of colonial policy Harrington and Manji (2003: 124), for example, note that in British colonies: “From the 1920s African legal systems were specifically designed to keep lawyers out the rural areas through the incorporation of the courts into the administration system.” Maintaining colonial domination was a primary motive, as officials wished to keep lawyers from using either the legal or political systems as mean of challenging their authority In addition, it was feared that lawyers might facilitate uncontrolled commercialization in the countryside Law training for Africans was not available within British colonies until after World War II, and then only reluctantly (Harrington and Manji 2003) The capacity for environmental law in Africa is increasing, particularly in some countries The IUCN’s directory of institutions active in environmental law includes university programs, research centers, and other organizations in Botswana, Cameroon, Kenya, Nigeria, Senegal, South Africa, and Uganda (http://www.iucn.org/themes/law/indi01.html) The Environmental Law Alliance Worldwide (E-LAW), which works with grassroots lawyers engaged in social and environmental justice issues, has partners in Cameroon, Chad, Kenya, Liberia, Malawi, Mauritius, Mozambique, Nigeria, South Africa, Swaziland, Tanzania, Uganda, and Zimbabwe (http://www.elaw.org/resources/regional.asp?region=Africa) the E-LAW network for critical legal and scientific tools African non-governmental organizations such as the Resources Conflict Institute, the Network of African Environmental Lawyers, the Lawyers Environmental Action Team, and the Institute for Law and Environmental Governance Groups such as the Environmental Law Institute, the Center for International Environmental Law, and E-LAW provide access to information and other support to African lawyers and non-governmental organizations Severe financial constraints often hinder these African institutions and networks Environmental Advocacy and Networking The process of democratization has opened political space in Africa for the emergence of environmental advocacy The Environmental Law Institute (2004: 11) uses the following definition: “Environmental advocacy refers to the act of speaking out in favor of, supporting, and defending the environment with a goal of having an impact on decision or policy.” Ochieng Odhiambo (2002) observes that the roots of environmental advocacy can be found in indigenous civil society organizations, as well as in popular organizations that spearheaded the movement for independence African advocates, particularly in non-governmental and community-based organizations, often put a heavy emphasis on the connections linking human rights, livelihoods, and the environment, rather than on purely environmental concerns (Environmental Law Institute 2004) Advocacy can be carried out at all societal levels, from the local to the global In fact, advocates emphasize linking people through networking and alliances as a strategy for mobilizing support Environmental advocates use a variety of strategies, including litigation, alternative dispute resolution, negotiation, and lobbying, as well as media and information campaigns, mass education, and sometimes resistance in pursuit of their objectives Coalition building through networking and alliances is seen as especially crucial in being able to mobilize the public and to influence government decision-making Although it is too early to draw firm conclusions, both the Kenya Land Alliance and, especially, the Uganda Land Alliance, for 34 example, appear to offer significant national forums for discussion of land issues, as well as platforms for lobbying However, severe funding constraints, as well as the issue of how to forge consensus given their increasingly diverse membership, are major challenges for national-level networks (Ochieng Odhiambo 2002) A recent publication by the Environmental Law Institute (2004) presents summaries of nine cases studies from seven African countries illustrating experience with environmental advocacy Settings included advocacy for community involvement in tourist development related to the Madikwe National Game Park, advocacy for public participation in planning processes for the Bujagali Hydroelectric Project in Uganda, legal opposition to government excision of state forest lands in Kenya, alliances to examine the impact of oil development in the Niger Delta of Nigeria, and investigating conflicts related to gold mining in Tanzania The studies show the importance of networking and alliances, making use of a range of tools and strategies, including litigation and alternative dispute resolution, and of capacity building through training and information campaigns They also indicate that advocates, their organizations, and their allies are at risk in terms of human rights abuses Governments have suppressed organizations and individuals perceived as troublesome Nonetheless, the importance of environmental advocacy appears likely to increase in the future with increased pressures for democratization and the spread of internet technology that fosters information sharing Global, National, and Local Concerns In legal proceedings in common law traditions in Africa, citing cases from other counties is allowed where such case law does not contradict statutory law Judges often regard it as a way of informing their decisions, and of building a persuasive argument for it A judge in Uganda, for example, supported a claim for compensation by farmers from a forestry project displaced by industrial development near Kampala His decision included citations of similar cases from Dominica and Mauritius (Kazoora 2003) In granting an injunction brought on behalf of rural households in Kwale, Kenya, against a Canadian-owned mining corporation, the judge not only cited national statues and cases, but also American cases and even a book on environmental law (http://www.elaw.org/resources/regional.asp?region=Africa) The inclusion of international perspectives into judicial decisions does not necessarily mean that community-based litigants are more likely to prevail In deciding against a lawsuit brought by representative of the Ogiek ethnic group against their eviction from Tinet forest reserve in Kenya, the judge cited cases from India, Sierra Leone, and Australia in supporting the government’s right to act Nonetheless, many activists and analysts contend that integrating universal notions of human rights and of environmental sustainability into legal decision-making will serve to enhance people’s wellbeing and their livelihoods (Moser and Norton 2001) The Ogiek eviction case points to another issue regarding the incorporation of local needs into judicial decision-making Approximately 5,000 members of the group were ordered to leave their homes and communities in Tinet state forest reserve by provincial and forestry officers, for purposes of environmental protection Ogiek community representatives emphasized their deep ties to Tinet, with both their livelihood and cultural identity closely attached to the forest The government officials disagreed, doubting the supposed primordial ethnic identity of the group, and citing their engagement in farming, non-farm income sources, possession of material assets 35 as modern-style houses, and reliance on markets as evidence of their abandonment of traditional ways It was the latter argument that especially appeared to sway the judge, who found their current livelihoods and life-style contrary to their professed Ogiek traditions and also inimical to the goal of sustainable forest conservation In this regard the Ogiek faced arguments similar to those encountered by the Cree of Quebec, Canada, whose aboriginal land rights were challenged by provincial officials who cited the Cree’s acculturation and their involvement in non-traditional livelihood pursuits (Richardson 1991) With many rural communities in African now increasingly reliant on non-agricultural income diversification, the straddling urban and rural markets, or other alterations of long-time livelihood practices (see Bryceson et al 2000), debate about the legitimacy of land right claims based on traditional resource-use pursuits is more likely to become commonplace Impartial and Biased Decisions Impartial enforcement of legal standards on the basis of individual rights can provide people with opportunities for advancing or protecting their interests Appealing to judicial or administrative officials through the national legal system may allow people to overcome entrenched interests at the local level The ability to obtain access to justice in an impartial manner may be constrained by many factors: the domination by political or economic elites of administrative or judicial institutions, the lack of an independent judiciary, and corruption Numerous studies document officials making arbitration or adjudication interests in land or natural resource disputes based on self-interest, including the interests of either their own patrons or clients (for example, see Bruce 1998; Ribot 1999; Peters 2004) The lack of judicial independence is illustrated in Nixon Sifuna’s recent lawsuit seeking an injunction against the Kenyan government’s plan to degazette about one-tenth of its forest reserves Sifuna filed suit in the High Court, and given the public’s interest in the case, the judge allowed open-air sessions, something rarely done Before the judge rendered a decision, however, she was replaced The new judge reported dismissed the case “in a record ten seconds” on a technicality, ordering Sifuna to pay court costs (Environmental Law Institute 2004: 80-81) Corruption flourishes in settings where information can be concealed from the public or from regulators, a common condition in many bureaucracies The demoralization of bureaucracies, including the reduction of pay and benefits, in the wake of structural adjustment has stimulated or increased self-seeking actions (Hirschmann 1999) The separation of powers, obligation to provide information, and a free media are among the diverse ways needed to corruption and bias in decision-making Critics of national legal systems as a mechanism for conflict management often point to its adversarial process and its winner-loser outcomes as inherently negative features However, there is no concrete evidence whether this consideration matters for those seeking to resolve their conflicts in Africa Although people often appear to have a preference for resolving disputes through informal processes, this may have less to with avoid adversarial situations and winlose outcomes per se, and more to with avoiding what is often filled as arbitrary and risky official processes Similarly, proponents of national legal system note that it creates legally binding outcomes This feature needs to be tempered by the understanding that decisions may not be enforced by the courts or by officials As revealed in Kazoora’s (2003) case study of Ugandan farmers who successfully sued a government agency, sometimes one needs to go to court to get one’s successful verdict acted on 36 Summary of Strengths and Weaknesses Table presents a summary of lessons learned about key strengths and limitations of national legal systems, including both administrative and judicial bodies, in dealing with natural resource conflicts Table National Legal Systems for Managing Natural Resource Conflicts Strengths Limitations  Use of official legal systems strengthens  Can be inaccessible to the poor, women, the rule of law, empowers civil society, and remote communities, or other marginalized fosters national environmental groups due to cost, distance, language accountability barriers, political obstacles, discrimination, or intimidation  Are officially established with standardized  People lack knowledge of processes, rights, rules, and procedures, as well as procedures are cumbersome, and judicial and technical specialists adjudication of cases may take a long time  Provisions for community resource  Judicial and technical specialists may lack management are increasingly incorporated information, expertise or skills required for into laws and policies participatory natural resource management issues  Emerging environmental advocacy  Environmental advocates and their movements offer potential for increasing supporters still remain vulnerable to community access to national legal repression from the state or other powerful systems stakeholders  National and international concerns or  Community-based knowledge, institutions, issues may be taken into consideration and needs might not be integrated into procedures or decisions  Decisions are supposed to be impartial,  Lack of judicial independence, domination based on the merits of the case, with all by the elite, or the prevalence of corruption parties having equity before the law within bureaucracies may undermine the possibility of impartial decisions  Result in decisions that are legally binding  Promotes a winner-loser situation, and officials may be unwilling to enforce certain decisions Adapted from Matiru 2000 Informal Practices for Managing Natural Resource Conflicts African communities often possess a repertoire of informal strategies and techniques for addressing natural resource conflicts which people draw on depending on their level of knowledge, their preferences, and their ability and motivation to act The focus here is on informal dispute resolution processes that are not a part of the official legal system, even though authorities may acknowledge or recognize their decisions The main techniques are negotiation, 37 mediation, arbitration, and adjudication People also frequently use two additional strategies: avoidance and coercion, with the latter manifested in peer pressure, gossip, ostracism, public humiliation, witchcraft, and the fissioning of kin or residential groups Participation and Differentiation The greatest strength of informal dispute resolution is that it is rooted deeply in the norms, values, institutions, and practices of communities (for example, see Gluckman 1956; Bohannan 1967; Gulliver 1979) Not surprisingly, this is also one of its main limitations Processes such as negotiation or mediation seem to work best in intra-group disputes, where members are knowledgeable and trustful of one another (Castro and Ettenger 1997) People will know much of the context that surrounds a conflict – the principals, their interests, and events leading up to the dispute Handling the dispute takes places in the local language, and within a cultural context with which people are comfortable Customary practices usually offer several advantages: low cost, flexible scheduling and procedures, inclusion of local knowledge, reference to local norms, and participation by the public Community leaders and notables can serve in mediation roles, facilitating negotiations and promoting conciliation (Greenhouse 1985 Or they may act in facilitation or adjudication roles, if the parties are unable to reach a mutually acceptable solution Popular participation is often a vital ingredient Trying to sway public opinion often compels parties to temper their views, allowing discussions to move beyond impasse Agreements, when reached, may be arrived at through consensual decision-making, arbitration by local notables, or even imposed by the public Whether or not people base their decisions on cultural norms, they usually can refer to them in justifying their positions (Moore 1969) In many cultures, agreement is marked by a ritual or ceremony, which not only denotes the end of the dispute, but also fosters a sense of reconciliation (Gulliver 1979) Indeed, traditional African conflict management has been portrayed as emphasizing, or as reinforcing, unity and solidarity Gluckman (1956: 2), for example, argues: “The result is that conflicts in one set of relationships, over a wider range of society or through a longer period of time, lead to the re-establishment of social cohesion.” Importantly, informal conflict management processes not necessarily produce more equitable, harmonious, or longer lasting settlements than other conflict-resolution processes (Colson 1995) As with other conflict management mechanisms, accessibility is an issue, with women, the poor, lower castes, migrants, and others seen as “strangers” often lacking standing in such forums (Griffith 1997; Castro and Ettenger 1997) Many studies now emphasize the domination or heavy influence of locally powerful individuals and groups in formal and informal dispute resolution forums (Moore 1986; Ribot 1999) Instead of being a forum where disputes can be resolved through reference to local norms, informal conflict management processes may serve only as an arena for testing the strength and position of local factions It is easy to over-simplify either the consensual or conflictive nature of such processes, however, as they are dynamic entities that reflect their own societies For example, Somali women in northeastern Kenya have assumed greater roles as mediators and peacekeepers in recent years, with their informal roles even becoming part of district-level efforts (Elmi 2000) Providing such legal recognition to informal conflict management processes can bolster their legitimacy, yet it can also have a deleterious effect as well In South Wello, Ethiopia, for instance, government representatives tried incorporate religious leaders who possessed informal conflict management roles into tree protection campaigns Because the trees were often planted on local pasture, they proved highly 38 unpopular within communities The religious leaders were reluctant to get involved as it posed a threat to their moral authority (Pankhurst 2003) There are additional drawbacks to informal conflict management resolution processes They often not work where significant social or geographical separates the disputants Enforcing decisions can be difficult, as it often depends on peer pressure Such decisions often lack legal standing Nevertheless, informal conflict management practices have considerable resiliency, withstanding processes of cultural change Moreover, the reestablishment of localized conflict management processes can be a major part of community renewal after shocks such as wars or population dislocations Summary of the Strengths and Weaknesses Table summarizes key points about the strengths and weaknesses of informal conflict management approaches in addressing natural resource conflicts Table Informal Systems for Managing Natural Resource Conflicts Strengths Limitations  Encourage participation by community  Authority of informal dispute resolution members and respect local values and may not be recognized officially, or customs supplanted by courts and administrative laws  Are more accessible because of their  Are often inaccessible to people on the low cost, their flexibility in scheduling basis of gender, class, caste or other and procedures, and their use of the factors local language  Involve informal or formal leaders,  Local leaders may use their authority to who serve as conciliators, mediators, pursue their own self-interests, or that negotiators or arbitrators of affiliated social groups  Promote decision-making based on  The outcome may reflect the testing of local norms in a collaborative manner, the parties’ social strength, instead of with consensus emerging from widederiving from a consensual agreement ranging discussions involving based on interests and shared norms community members  Contribute to processes of community  Often cannot accommodate conflicts empowerment and cultural renewal between distant social groups or between a community and the state  Local customs and rituals may help  Enforcement of an agreement depends promote reconciliation of the disputants largely on voluntary compliance among after an agreement is reached the parties, especially where customary procedures are not recognized legally Adapted from Matiru 2000 39 Conclusion The Nature, Wealth and Power framework is on track in giving explicit attention to issues of natural resource conflict management Africa appears to be experiencing increasing conflicts Although these conflicts are triggered by competition for resources propelled by policies, population increases, commercialization, and other socioeconomic factors, the underlying foundation is often the imbalance between statutory and customary tenure systems Addressing these conflicts requires a multifaceted approach, including attention to issues of democratization, national policy and legislative reform, 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dispute resolution, and of capacity building through training and information campaigns They also indicate that advocates, their organizations, and