THE OPEN UNIVERSITY OF TANZANIA

RESEARCH PROPOSAL

PAUL T. WAHOME

REG. NO. HD/L/048/K.13

FACULTY OF LAW

TOPIC : Contribution of Legal Pluralism in Land Law to Conflicts and Violence in

The Mau forest Complex Region.

DATE OF PRESENTATION: JUNE, 2012

Presented as partial fulfillment of the award of a Masters of Laws

Degree of the Open University of Tanzania

i
TABLE OF CONTENTS
TABLE OF CONTENTS......................................................................................................ii
Abstract:...............................................................................................................................iii
List of Abbreviations and Acronyms....................................................................................iv
CHAPTER 1..........................................................................................................................1
1.1 Background to the Study.............................................................................................1
1.3 Statement of the Problem............................................................................................3
1.4 Objectives of the study................................................................................................4
1.5 Research Hypothesis...................................................................................................5
1.6 Justification of the study..............................................................................................6
1.7 The Assumption of the Study......................................................................................7
1.8 Scope of the study.......................................................................................................7
1.9 Lists of Cases Cited.....................................................................................................8
1.10. Definition of Terms..................................................................................................8
CHAPTER TWO: LITERATURE REVIEW......................................................................10
CHAPTER THREE.............................................................................................................18
RESEARCH METHODOLOGY........................................................................................18
3.1 Research Design........................................................................................................18
3.2 Location of the study:................................................................................................18
3.3 Target Population.......................................................................................................19
3.4 Sampling procedure...................................................................................................19
3.6 Instrumentation..........................................................................................................20
3.6 Reliability and validity of the instruments................................................................20
3.8 Data Collection..........................................................................................................21
3.8 Data Analysis.............................................................................................................21
RESEARCH BUDGET.......................................................................................................23
REFERENCES....................................................................................................................25

ii
Abstract:

The Mau forest complex is a large highland forested area in Kenya. It is the largest water
tower in Kenya. Many rivers into Rift Valley lakes and Lake Victoria start at the Mau.

In recent times the Mau forest has had large areas of the forest excised and allocated to
individuals. Even the unallocated part has been invaded by loggers, charcoal burners and
firewood seekers. This has led to destruction of a large part of the forest. Due to this
destruction the supply of resources sourced from the forests has dwindled. These resources
include firewood, timber, thatch, honey, livestock fodder and even human food.
The last is especially important to the Ogiek community who depend on forest to support
their hunter and gatherer lifestyles. In addition areas adjacent to the forest have
experienced increased environmental problems due to the drying up of rivers and streams
that originated from the forests. Increased surface runoff resulting from destruction of
forest cover has seen these adjacent areas experience increased soil erosion and flash
floods all of which have contributed to even more reduced productivity in farms
neighbouring the forests. These resources are dwindling while at the same time the
population that require them has dramatically increased. This is due to high birth rates but
even more importantly increased settlement in the forest lands. It does not help matters
that the new settlers are of different ethnic groups to the people who had settled in the
region earlier. In addition the two communities seem to exist in a state of belligerence
even in the best of times. As a result there are continuous reports of hostilities between the
various ethnic communities that sometimes breakout into outright ethnic conflicts. Even
though this is most apparent in election years, conflict in this region is continuous and
violence and even deaths often results.

In this research I propose to measure by how much multiplicity of laws in land and forest
management has contributed to conflicts in the Mau region. This situation of legal
pluralism results inconsistencies, conflicts of law and even loopholes that allow
manipulation for personal gains.

iii
List of Abbreviations and Acronyms
Legal Pluralism Legal situation where activities are regulated by

DC District Commissioner

CC Country commissioner

KANU Kenya African National Union

NEMA
National Environment Management Agency
CFA
Community Forestry Associations.
Cantonization.

iv
 CHAPTER 1

1.1 Background to the Study

The Mau Forest is a large forest in the western escarpment of the Rift Valley. It is the
source of many rivers that drain into the Rift Valley lakes and Lake Victoria, the second
largest fresh water lake in the world. Lake Victoria itself is the source of River Nile the
longest river in the world and the one that supports millions of people downstream from
Uganda to Egypt. It is regarded as the largest water tower in Kenya.

Lately there has been a lot of destruction of the forest in the Mau. A lot of the forest land
was excised by the former president of Kenya Daniel Moi and allocated to people
perceived to be his political supporters and who belong to his ethnic community. There are
allegations that the president and his cronies used the peasant settlement to allocate
themselves large tracts of forest land in the Mau. Daniel Moi used powers that the
constitution had bestowed on the president to allocate public land more or less as he
deemed fit.

Destruction of the forest and environment did not end at the allocated land. During the
forest clearing frenzy the enthusiasm spilled over into the unallocated forests that
themselves were heavily logged almost turning them into bushy grasslands rather than
tropical indigenous forests that the once were.

Almost hand in hand with the forest destruction there arose ethnic conflicts in the Mau
forest region. The new settlers, the Kalenjins were of a different tribe from the existing
communities the Kikuyu1. It did not help matters that the two communities regarded each
other as opponents; one having produced the first Kenyan president and the second having
produced the second Kenya president. Each group viewed the other as having received
undue favours in allocation of land in the Mau. At the same time, the settlement coincided
with clamour for multiparty democracy in Kenya.

1
The first president of Kenya belonged to the kikuyu tribe while the second president belonged to the
Kalenjin tribe.
v
The Kikuyu were at the forefront of agitation for multiparty democracy. 2 The Kalenjin
viewed their agitation as an attempt to topple a Kalenjin from the presidency. The spark of
political incitement was enough to light the flame of ethnic conflict and violence and the
Mau has never been the same again. The conflicts have simmered in the background but
ignite at every election time resulting in death, human displacement and suffering. The
disputed 2007 elections saw the highest escalation of this ethnic conflict with thousands
dead and displaced in the rift valley. While the election may have been the spark, the
underlying cause of the conflicts can be attributed to competition for dwindling resources
of the Mau that a bigger and bigger population demands. The Mau forest itself seems
unable to withstand the demands for resources placed on it and has continuously degraded
until there are fears that soon there will be no forest to talk about.

It is generally agreed that a situation of ethnic tension is not desirable anywhere in the
world. There has been various attempts to solve the Mau ethnic conflicts. Most of these
have been centered around elder negotiations. In addition the Kenya forest Act 2005 was
passed with the hope that it would address the problem of forest destruction. It was hoped
that the new law would encourage conservation of forests by making the neighbouring
communities stakeholders through the Community Forest Associations.

So far attempts at ethnic conflict resolution have been unsuccessful in reducing ethnic
tension and another election season is approaching that promises to be as acrimonious and
hard fought as the last one. There is therefore need to urgently address ethnic tension in
the region in a new way.

There have been arguments that Kenya’s ethnic strife is due to its many tribes. However
Tanzania to the south has as many if not more tribes than Kenya. And Tanzania is famous
for its peace and tranquility. Could it be that Kenya’s main problem is many bad laws
caused by unthought-out legislation tailored to satisfy the whims of the presidency. It is
possible that the Kenya forest act, 2005 is just another addition to the many laws that
purport to control land tenure in Kenya. It therefore might not be a solution but might be
complicating the problem of legal pluralism that exist on the ground.

2
One of the major leaders of the opposition movement was a Kikuyu Kenneth Matiba.
vi
1.3 Statement of the Problem

For a long time, Kenya has had a good reputation as an “island of peace”. This reputation
shouldn’t fool you. It is only relative peace as compare to most of its neighbours who
seem to be permanently warring. Kenya has had its own share of internal violent conflicts
but they fade in comparison with the large-scale incessant coups, rebellions and counter
rebellions of most of her neighbours.3

Land has always been dear to Kenyans. This is probably due to the fact that there are not
many alternative means of livelihood in Kenya.4 Industrial revolution did not take off in
Kenya as envisaged after independence. Indeed development goalposts kept on being
shifted forward time after time by the politicians after realizing that they could not be
achieved in the set timeframe. First it was by the turn of the millennium. Then it was by
2020 and currently the country has vision 2030 by which time, the politicians say, Kenya
will have become a fully industrialized society. As of now Kenyans have to make do with
what they have and that is land. Most of the land is utilized for subsistent agriculture with
little inputs and even less yield with the results that in most cases, the farmers can hardly
feed themselves.

Competition for resources has been cited as one of the major causes of conflict in the
world. This is quite apparent in Africa where resources have been associated with
violence. In fact oil, a major resource that has made the Middle East countries rich is more
often than not referred to as the curse of Africa. Many African countries break out into
violence or existing conflicts are exacerbated immediately oil is discovered. 5 There are
even fears that Kenya could fall into that curse now that oil has been discovered.

Kenya has not had any significant natural resource up until now. Conflicts there have been
over the meager resources available. This is mostly land and forest resources.

The Rift valley has had a history of land problems ever since Kenya was a colony. It
therefore has been a major conflict zone that has even threatened the existence of the
Kenya nation.

3
This is with the exception of Tanzania which really has been an island of peace in the region.
4
Or indeed the whole of Africa.
5
This was the case in Angola, Nigeria, and the Sudan.
vii
The Mau is located in central Rift Valley. It is here that one of Kenya’s water towers is
found.6 It is a high altitude, high rainfall, highly forested region. Most Kenyan rivers
draining into Lake Victoria originate from the Mau. Thus activities in the Mau have
repercussions not only in Kenya but the whole of East Africa and countries through which
the Nile flows.

The Mau is most famous for ethnic clashes that have constantly plagued that area. Among
there reasons that have been advanced as to the causes of ethnic conflict in the area has
been:-

- competition for forest resources

- historical injustice

- tribal animosity

- political incitement

While all these are valid causes of the ethnic conflicts, such situations exist in many parts
of world and do not read to violence. I therefore propose that multiplicity of laws are a
major contributor to ethnic conflicts and violence. This is because when there is no clear
legal alternative to dispute resolution people may be inclined to resort to violence. The
question therefore is could conflicts in the Mau be largely caused by competition for forest
resources and could the resultant violence be brought about by multiplicity of in laws
governing land and forest resources and negative altitude towards the justice system in
Kenya.

1.4 Objectives of the study

1. To find out if there exists conflicting legal pluralism in land administration in the
Mau.

2. To compare the Mau region’s resident’s age with knowledge of land and forest
laws that operate in Kenya.

6
The other being Mt. Kenya and the Aberdare ranges
viii
 3. To find out readiness of the Mau residents to use legal means to solve conflicts if
such means are available.

4. To find out the proportion of the population that thinks they have no legal recourse
in case of conflicts.

5. To analyze legal aspects of historical injustice and its contribution to conflict and
violence in the region.

1.5 Research Hypothesis

a) There exists a plurality of laws that govern land and forest administration in
Kenya.

b) Most residents of the Mau have limited knowledge of the laws governing land and
forest resources in Kenya.

c) Most Residents of the Mau region usually do not involve the judicial system in
conflict resolution

d) The main reason for failure to use the Kenyan justice system in Kenya is due to
lack of trust that justice will be done.

Independent variables Dependent variables

Residents of the Mau region

Knowledge of land and
Educational level
forest laws applicable in
Land and forest laws Kenya.
Readiness to resort to the
judicial system to solve
conflicts
Incidences of conflict of
law

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1.6 Justification of the study.

The Mau Forest complex is important. It is one of the two major water towers in the
Kenya. Lots of rivers originate from the Mau. Some of these rivers flow either into Rift
Valley lakes like Baringo, Nakuru and Turkana. Others flow westwards into Lake Victoria;
the source of the Nile. On their way to Lake Victoria they flow through wildlife areas that
are major tourist attraction sites in Kenya like the Maasai Mara game resource providing
drinking water to wildlife and people along the way. Whatever happens in the Mau has
consequences to the economy and livelihood not only of Kenyans but of the whole Nile
valley region inhabitants. Conflict and violence in the Mau usually results in destruction of
forest and the environment in the region whose repercussions reverberate far beyond the
region. Conflict and violence in the region is therefore not only morally objectionable but
also politically and economically.

A lot of effort has been put in solving the perpetual ethnic conflicts and violence in the
Mau region. So these efforts have not been spectacularly successful. There are small scale
conflicts that do not even make it to the news and therefore the rest of the country does not
know about them. It is these small conflicts that lead one to conclude that the Mau
situation is only dormant, but not extinct. It is only waiting for lighting of the fuse to blow
up into full scale conflict that it once was.

Conflict resolution efforts have centered on elder mediation and negotiation, increased
policing, and even cantonization and population shifting. One glaring omission in these
efforts is the legal aspect of the conflicts. It has been established that people rarely resort
to violence when they have legal means of addressing their complaints. Legal pluralism
resulting in ambiguity and even outright incomprehensibility may therefore be a major
cause of these conflicts and ultimate conflicts. It is therefore necessary to find out whether
in multiplicity of laws have played major roles in the cause of conflict and violence in the
Mau. It would then be possible to amend/reform these laws so that they play their role in
ensure a stable, just and peaceful ethnic co-existence in the region.

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1.7 The Assumption of the Study
This study will be guided by the following assumptions

(i) That Responses given will be honest to permit their use in the analysis

(ii) That the altitudes of the sample selected will be representative of the general
population of the Mau inhabitants.

1.8 Scope of the study

The study will cover the areas neighbouring the Mau forest in the counties of Nakuru,
Narok and Kericho. Among the people to be interviewed will be:-

- Land owners in the region.

- Administrators in the region.

- Squatters in the region

- Students above teenage (these usually from the bulk of the attack or defense
forces)

The secondary sources of data will include:-

1. The Constitution of Kenya

2. The Forest Act No 7 of 2005

3. Cap 300 The Registered Land Act

4. Cap 295 The Land Acquisition Act

5. Cap 288 The Trust Land Act

6. Cap 280 The Government Lands Act

7. Cap 287 The Land (Group Representatives) Act

8. Cap 290 The Trusts of Land Act

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 9. Cap 284 The Land Adjudication Act

10. Cap 282 The Land Titles Act

11. Cap 302 The Land Control Act

12. Cap 18 of 1990 The Land Disputes Tribunals Act

13. Cap 4 of 1995 The Arbitration Act

14. The Penal Code

1.9 Lists of Cases Cited

Cardwell v. American Bridge Co.

Commonwealth v Tasmania
Federal Power Commission v. Tuscarora Indian Nation
Haida Nation v. British Columbia (Minister of Forests)
Kivalina v. ExxonMobil Corp., Et al.
Lyng v. Northwest Indian Cemetery Protective Association
M. C. Mehta v. Kamal Nath
People v. the Brooklyn Cooperage Company
United States v. 50 Acres of Land
R. v. Marshall
Vaughan v Menlove

1.10. Definition of Terms

Legal Pluralism – A situation where there exist different laws be they customary or
legislative that governs the same thing and which may cause ambiguity
or even conflict.

Cantonization - Division of a country small districts

xii
White Highlands - Land in the Rift Valley escarpments previously settled and farmed by
Europeans during the colonial period.

Water Tower – A highland region which receives high rainfall and is therefore the source
of rivers and streams.

xiii
CHAPTER TWO: LITERATURE REVIEW

The Mau ranges are a system of hills that from the Western Escarpment of the Rift Valley
in Kenya. These hills are the sources of many rivers draining into the Lake Victoria basin
and Rift valley lakes. The Mau is therefore rightfully regarded as the largest water tower in
Kenya. The region is beautiful and cool by tropical country standards. It also has fertile
soils that result in high productivity. But this paradise is not quiet. Destruction of the
environment in the Mau has resulted in many climate related problems. These include
drying of Rift valley lakes and flooding in the Lake Victoria basin. In addition the region
has had a history of violent conflicts especially since human settlement started in forest
regions.

Before 2007, Kenya always prided itself as an island of peace in the midst of warring and
internecine conflict ridden countries that neighoured her. 7 The apparent peace hid the fact
that it was imposed by Mugabe style president for life. When the one party dictatorship
was brought down through elections, the same freedoms it brought about resulted in
increased conflicts between the various tribes. It was quite a loss of face when Kenya had
to depend on previously unstable countries like Uganda and Rwanda 8 to intervene to sort
out the mess.

Kenya is one state where legal pluralism is found almost in every sector. Having been a
British colony many of the laws applicable to Kenya are based on the British system. Also
applicable is the common law9 and customary laws that differ from community to
community. In theory written laws or statutes take precedence over all other laws. Even
the codified law in Kenya has seen a lot of manipulation especially during the one party
dictatorships that used parliament as rubber stamps. This resulted in passage of unclear,
inconsistent, conflicting and ambiguous laws that seems to be created to satisfy the whims
of one individual. While this situation itself led to legal pluralism in Kenya there also
exists customary laws that differ wildly form one community to another. It does not help
matters that these customary laws are recognized as part of the laws of Kenya and are

7
Almost all countries that neighbour Kenya have had long histories of violence to the point of being
classified as failed states like Somalia. This is with the exception of Tanzania which Kenya has seemed to
look down upon as backward and impoverished.
8
These two countries are still under what are regarded as dictatorial leaders i.e. Yoweri Museveni – Uganda,
and Joseph Kagame – Rwanda.
9
System of judge made laws that developed in England.
xiv
routinely enforced by courts. In addition most Kenyan society have a set of elders who
exert a lot of moral and arbitration authority that resolve most conflicts before they can
enter the justice system.
Conflict has various mostly been defined as situations where there is civil strife, hostility,
civil war or political instability. Abdalla Bujra, for example, defines conflict in Africa as a
violent and armed confrontation and struggle between groups, between the state and one
or more group, and between two or more states (Bujra, 2002). However, Tom Pätz argues
that conflict has to be seen as an inevitable feature of all social relations, and that it is one
of the most powerful positive factor for change and development (Pätz, 2003). Hence, he
discussed that the ubiquity of conflict can be seen by describing as a relationship in which
each party perceives the other’s goals, values, interests or behaviours as antithetical to its
own. Similarly, Teshome Mekonnen wrote that conflict is a natural phenomenon and
occurs as a result of incompatible goals of human beings (Teshome, 2003). He further
explained that conflicts can be driven by the unfulfilled needs and fears of the society
expressed in different situations and forms: the sense of justice, autonomy, identity, basic
needs, rights of the individual, rights of property and land (Ibid.).

Pätz also discussed that if conflicts are not properly handled they could easily turned into
violence and become serious obstacle for socio-economic development (Pätz, 2003). For
him conflicts have a beginning before violence occurs and they can then escalate into
violence and worsen over time, and eventually they abate.

Conflict can be categorised in various ways depending on the type of criteria one uses.
For example Bujra classifies African conflicts on the bases of actors involved in a conflict
as follow (Bujra, 2002):

 Inter-state conflict: caused by claims over borders.

 Internal conflicts: under this category Bujra listed down the following types.
While States are actors in some of these conflicts, other groups within the countries
involve in the rest.
o A Rebellion to overthrow a government: such as a rebellions, by group
outside the military establishment of a country and which aim to overthrow
a government, are the most common type of political conflict in African
countries;
xv
 o Secessionist Rebellion: often driven by their perceived political, economic
and cultural oppression.
o Coup d’Etat: violent and undemocratic change of government by military
forces,
o Cold-war sustained conflicts: the 1970s and 1980s vicious competitions
between the super powers in Africa was an important factors, if not in
starting conflicts certainly in sustaining them.
o Many-sided conflicts to seize state power: where several rebellions emerge
independently, each of which is trying to capture the capital and take over
the power.
o Rural conflict over resources: these are conflicts over grazing land,
over cattle, over water points and over cultivable land.
o Urban violence and conflict: most politicians mobilise their supporters and
organise political activism, which often results in conflicts between these
supporters who are mostly ethnically based.

In various societies and fields there exists situations where the law and legal institutions
are not “subsumable within one “system’ but have their sources in the self regulatory
activities which may support, complement, ignore or frustrate one another. 10 This results in
a complex and unpredictable rules on the ground that may be quite different from the one
in the books. While some view the state of legal pluralism as a welcome and liberating
others hold the view that there is nothing inherently good, progressive, or emancipatory
about it.11

As the world population has risen from around 1 billion at the turn of the 20 th century to
the 7 billion it is now pressure on land and resources has increased. This is to be expected
as there are more and more people competing for finite resources. This has resulted in
conflict around the world but especially in the developing world where the population
increase has been the highest. At the same time this is the region of the world where the
economy of has stagnated or even declined. Not surprisingly this is the region that has had
the most conflicts in the world. In Africa most conflict is ethnic based. Wars between
10
Griffiths, ‘What is legal pluralism?’, p. 39
11
For support of legal pluralism see Sack, Peter and Minchin, Elizabeth (eds) 1986, Legal Pluralism:
Proceedings of the Canberra Law Workshop VII, p. 1. For a contrary opinion see Santos, Toward a New
Legal Common Sense, pp. 89, 91
xvi
countries are not as common as internal wars between different tribes. During the cold war
most countries were kept stable by military dictators or dictators backed by the military.
While peace was enforced for some time, this situation was almost always guaranteed to
end in even greater conflagration as those without power sought to oust the ones in
power.12 In some cases like Uganda, the rebels were successful; in other cases like Angola
the rebels failed to oust the government. Whatever the results of the conflicts there was a
lot of human suffering and ecological destruction in this countries.

The Rwanda genocide woke up the world to the need to resolve conflicts before they get
out of hand. There therefore has been concerted efforts in the world intervene in countries
that seem unstable or about to fall into conflict situation. This was the case in Kenya in
2007 when disputed general elections led to the largest conflict in the country’s history.

Research into conflict resolution has identified a number of methods that can be used to
resolve conflicts.

Theories of ethnic conflicts

Three theories have been put forward as to the cause of ethnic conflicts. These theories are
primordialist, instrumentalist, and constructivist.

Primordialist

This theory argues that conflicts are caused by ethnic resemblances and differences. Since
people of the same ethnic group tend to have the same features they tend to trust each
other and distrust people who have different characteristics. Eventually checking one’s
ethnicity becomes a shortcut to identify friend or foe. This has led to the criticism of the
theory that ethnic conflict is nothing but a fight for political and economic power. The
critics argue that it leads to an essentialist conclusion that certain groups are doomed to
fight each other but fighting is actually a result of political decisions.

Instrumentalist

The theory argues that ethnic conflicts are used only as instruments to power by
community leaders “who used their cultural groups as sites of mass mobilization and as

12
This was the case in various countries e.g. Uganda, Rwanda, Burundi, Zaire and Central African Republic.
Public.
xvii
constituencies in their competition for power and resources, because they found them
more effective than social classes”.13 Thus ethnic conflicts are only a means to an end or
just instruments.

This has been cited as a major cause of conflict in Africa. It is suggested here that ethnicity
per se, in the absence of its politicization, does not cause conflict. There is evidence to
suggest that where ethnic conflict has emerged in Africa, there have always been political
machinations behind it (see e.g. various studies in Nnoli 1998)

Constructivist accounts

This theory of the origins of ethnicity is based on Jean Piaget’s theory on how knowledge
is acquired.

Piaget suggested knowledge can be acquired by accommodation and assimilation. In

assimilation the individuals incorporate the new experience into an existing framework
already formed in their minds. This is especially so if the new knowledge is in line with
the individuals experiences and mental representations of the world. Assimilation can also
occur due to failure to change faulty understanding or misunderstanding of new
information or even deciding that an occurrence is just a fluke which should not change
their world view. In accommodation learners have to change their mental representation of
the external world due to experiences contradicting it. During the reframing of their
mental framework accommodation of the new experience is possible.

The constructivists then argue that ethnic groups are mentally constructed based on
Benedict Anderson’s concept of the imagined community. This theory is important in
explaining the Rwanda and Burundi conflict which were between the same people who
had been misled to believe they were different. The previous colonial power Belgium
classified the natives according to physical features, cattle ownership and church records.
Identity cards were then issued on this basis classifying one as either a Tutsi or a Hutu.
These cards played a prominent role in the genocide of 1994.

The fall of the Soviet Union and the end of the cold war resulted in increased ethnic
conflicts as groups within former unified states sought secession. Secessionist groups were
found in Yugoslavia, Moldova, Armenia and Georgia.

13
Anthony Smith (2001) Nationalism: Theory, Ideology, History, Cambridge: Polity, pp. 54-55
xviii
Before the end of the cold war there had been disagreement as to whether ethnic groups
could be considered rational or irrational actors.14 If they are irrational or even semi-
rational then true explanations or prediction of ethnic violence would be impossible.

Currently scholars seem to have a consensus that ethnic groups are in fact rational actors
and their irrational activities must be explained some other way. There is therefore a
possibility of a general explanation of ethnic violence.

There are arguments that democratization rather than reducing ethnic violence actually
increased it. This is by giving power to an impoverished majority. If there is an
economically successful minority, it may experience persecution and even genocide.15

Kenya’s strong man Daniel Moi headed de jure a one party that he inherited from the first
president Jomo Kenyatta. Until the fall of the Soviet Union, Moi had managed to keep all
opposition in check by a myriad of imprisonments, abductions, detentions, censorship and
even alleged outright assassinations. There are allegations that all this was with support or
at least connivance of the western powers that saw Moi as a bulwark against the spread of
soviet and Chinese influence.

After the fall of the Soviet Union and the end of the cold war, the value of African
dictators suddenly plummeted. The western powers previously supported Moi suddenly
withdrew their support and even were at the forefront in demanding changes and
democratization of the political system in Kenya. For single party rule it was clear that the
end was near. Moi finally acceded to democratization demands and sections 2A of the
constitution that made Kenya a de jure one party state was repealed.

Still Moi was able to survive as the president of Kenya for another two 5 year terms.
Several factors lead to this; among them fracturing of the opposition, fear of large tribe
domination by the small tribe, gerrymandering and even alleged orchestration of ethnic
conflicts.

Gerrymandering was achieved by resettlement of members of supportive ethnic groups to

areas where the opposition ethnic groups were a majority. The hope was to dilute this

14
Stathis N. Kalyvas (2006) The Logic of Violence in Civil War, New York: Cambridge University Press
15
Some advance this as one of the major causes of the ethnic conflict in Kenya. The kikuyu although the
largest tribe is only about 20% of Kenya’s population. The tribe is the most widespread in Kenya with farms
and businesses all over the country. During the 2007 election’s almost all other tribes united in an attempt to
oust the incumbent – a kikuyu.
xix
majority and hopefully lock out the opposition from garnering 25% in at least 5 provinces
as the constitution stipulated.

Conflicts were alleged to be with 2 aims. One of the aims was to displace opposing ethnic
communities and therefore prevent them from voting. The other was to intimidate them
into voting for Kanu’s presidential, parliamentary and civic candidates. Conflicts were
engineered by incitements and cries of historical injustice. There was also allegation of
police being ordered to turn a blind eye as violence was perpetrated and even prevent
defensive actions of the attacked.

Conflicts in the Mau has had negative effects on both the human population and the
environment.

There has been large-scale displacement of populations. This has resulted in internal
refugees, popularly known in Kenya as Internally Displaced Persons (IDPs). Mistrust of
other ethnic communities has increased and altitude towards other ethnic communities has
hardened. Consequently determination to ensure that they are able to place one of their
own in power has increased. This has led a state of war readiness and willingness to
perpetrate violence against other ethnic communities with the slightest provocation.

Ethnic conflict has also resulted in massive destruction of the environment around the
Mau. Destruction began when president Moi started settling his tribesmen into the forest.
They commenced on an orgy of slash and burn activities that even infiltrated the
unallocated forest lands. Destruction was exacerbated by increased land tenure
uncertainty. This resulted in people settled around the Mau trying to take as much out of
the land as they could while at the same time putting as little into the land as they could.
There was no guarantee that they would be there tomorrow.

It is clear that conflicts around the Mau are of no benefit to either the aggressors or the
aggressed. In addition it results in massive destruction of the environment in the region
that not only affects the inhabitants of the Mau region but also the whole country. Often
several factors have been speculated upon as the causes of conflict and violence in the
Mau. These include:-

(1) Historical injustice

xx
(2) Competition for forest resources

(3) Unclear laws

(4) Political interference.

xxi
 CHAPTER THREE

RESEARCH METHODOLOGY

3.1 Research Design.

The researcher will use descriptive research methods. Survey design method will be used.
Survey design is appropriate because variables will not be manipulated. 16 This design also
enables the researcher to study large and small populations. In addition Sharma 17 says that
survey is the best design as it is he one where the researcher can carry out an inquiry in
large number of people where both questionnaires and interviews will be used. Questions
used both in the questionnaires and interviews will be the same. Interviews will only be
necessary in case of illiterate respondents or where a misunderstanding might occur. The
questions will be closed ended using the Likert type scale due to simplicity in statistical
analysis.18

In addition library research will be done. The research and/or assistant will analyze cases
and statues and document cases of ambiguity, conflict or out rightly legally wrong
reasoning.

3.2 Location of the study:

The research will be conducted in the regions neighbouring the Mau forest complex in Rift
Valley province of Kenya. This will include the people settled in what were formerly
called the White Highlands19 where the first president of Kenya Jomo Kenyatta settled
with a majority of his tribesmen and the land excised from the Mau forest where the

16
Warwick & Liningery, 1975
17
Sharma 1985
18
Jackson, S.L. (2009). Research Methods and Statistics: A Critical Thinking Approach 3rd edition.
Belmont, CA: Wadsworth.
19
The highlands were called white because they formed large scale White European farms allocated by the
British colonial government.
xxii
second president Daniel Moi settled his own tribesmen. Specifically the study will be
centre in the following villages:-

 Mau

 Ndeffo

 Likia

 Nessuit

 Teret

 Kapsita

3.3 Target Population

The target population will be the people settled in the study location. This will include
landowners, tenants, workers and government administrators in the region. Where the
study population is large, a sample of the population will be taken using random sampling.
Where the population is small the whole population will be studied.

3.4 Sampling procedure.

Random sampling will be used to select samples of farmers, workers, tenants,

administrators and students. According to Nwadiuto (1997), random sampling allows each
item in the population an equal chance of being included in the sample. He also
recommends a 50% sample for a small population i.e. in hundreds and 5 – 20% for a large
population that runs into thousands. To ensure that each region is represented the study
location will be divided into the following regions.

xxiii
3.6 Instrumentation

Questionnaires will be used in the research. The questionnaires will be designed by the
researcher to collect information on Age, gender, education level, occupation, land
ownership, attitude on legitimacy of title to the land, knowledge of law related to land and
forests applicable to Kenya, attitude towards the justice system in Kenya, past experience
of conflict and violence, readiness to resort to violence to resolve conflicts and reasons for
the method chosen to resolve conflict. Questionnaires are appropriate where the sample
population is large. It also makes coding easy. The questionnaires will be administered to
the population sample either directly or the questions will be read to them in case of
illiteracy.

In addition desk research will be done on the laws governing forests and areas of
ambiguity conflict and incomprehensibility. Scholarly articles on African custormary laws
governing land matters especially those related to tribes settled in the Mau will also be
studied.

3.6 Reliability and validity of the instruments.

A pilot study will be carried out to establish the clarity and meaning of each item in the
questionnaire. The pilot study will also be useful in determining the time needed to get
information from the respondents. Expert opinion will be sought from the LLM supervisor
and also from experts in legal, administrative, and environmental fields.

After the piloting, the instruments will be improved. Cronbach’s alpha coefficient will also
be used to determine reliability. Only one administration of instruments will be done.
(Hernerson, Morris, Fits & Gibbons, 1987). This will provide a good measure because
holding other factors constant, the more similar the test content and conditions of
administrations are, the greater the internal reliability. The instruments will be considered
reliable if their reliability coefficient is at least 0.74.20
20
Mugenda and Mugenda (1999)
xxiv
3.8 Data Collection
A research permit will be acquired from the Ministry of Higher Education. Also
permission will be sought from the Provincial Administration, The Forest Department, The
Ministry of Lands and the Judiciary. The researcher will seek these permissions personally
by direct visits to the concerned offices.

The questionnaires will be delivered personally to the respondents. This will be done by
the researcher and 3 research assistants. They will explain to the respondents the purpose
of the study and its objectives. If necessary, e.g. in case of illiteracy or language barrier the
researchers will read the questions themselves and mark the given answers. Care will be
taken not to introduce bias or prejudice. The researcher and the research assistants will
collect the questionnaires immediately after they are filled to ensure a high rate of returns.

3.8 Data Analysis

The data will be coded and digitized by manual entry into computers. The coding will
ensure that each category of data is separated according to the type of data and the source
of data. Statistical Package for Social Sciences (SPSS) will be used to get analysis like
frequencies, percentages and tables.

Interpretation of the statutes and their by various legal scholars will also be studied. The
researcher will also study applicable jurisprudence on conflicts and environmental
conservation.

Interviews

The researcher will carry out interview of a sample of people who will be selected from
the inhabitants of the Mau forest region. Included in the sample will be politicians,
government officers, local NGO personnel, women group leaders, youth, church elders,
traders, farmers, landlords, teachers, and others. Care will be taken to include the youth in
the research sample. The youth are usually the most active in perpetrating violence during
conflicts and therefore their knowledge and altitudes are important consideration in
attempts at conflict resolution.
xxv
xxvi
 RESEARCH BUDGET
COST@ NO TOTAL
ITEM Kshs. /AMOUNT UNIT Kshs. Justification

Type Questionnaires 40 20 Pages 800

Photocopy 10,
Questionnaires 5 2000 Pages 000
30,
Assitants (3 in number) 3,000 10 days 000

Stationery
2,
Paper reams 700 3 Reams 100

Pens 20 20 No. 400

Pencils 20 20 No. 400

Files 50 12 No. 600 4 researchers 3 each

15,
Digital Camera 15,000 1 No. 000 Pictures and audio record
50, For internet research and
Laptop 50,000 1 No. 000 data collation
4, Communications and
Modem 4,000 1 No. 000 Research

Proposal Writing
2,
Typing services 40 50 No. 000
2,
Photocopy 5 400 8 copies 000

Binding 100 8 Books 800 Spiral Binding

Piloting & training

24,
Transport 2,000 12 3 Days x 4 000 4 people for 3 days
12,
Subsistence 1,000 12 3 Days x 4 000 4 people for 3 days

Data collection
10 days x 40,
Transport 1,000 40 4 000 4 people for 10 days
10 days x 40,
Subsistence 1,000 40 4 000 4 people for 10 days
2,
Telephone 500 4 Voucher 000 4 X 500 airtime voucher
4,
Data Analysis 4,000 1 Analyst 000 An expert data analyst

Draft Report Writing

Typing 40 100 Pages 4,
xxvii
 000
4 copies x 2,
Photocopy 5 400 200 000 4 Copies of 200 pages
4,
Corrections 40 100 Pages 000 Making Rec. Corrections
4 copies x 2,
Photocopy 5 400 200 000 Corrrections required

Final Research Thesis

4,
Typing 40 100 Pages 000
10 20,
Printed Copies 10 2000 copiesx200 000 10 Final copies
10,
Binding 1,000 10 Books 000 Hard Cover Binding

286,
Total Cost 100

xxviii
REFERENCES

Annan, Kofi. (1998) Keynote Address to the Conference on Preventing Deadly Conflict
Among Nations in the Twenty - First Century. University of California at
Los Angeles, 22 April 1998. UN Press Release SG/SM/6534.

Cassidy, M. (1995). A Witness for Ever. The Dawning of Democracy in South Africa.
Stories behind the Story Hodder & Stoughton Ltd, UK.

Coakley, J. (1992) The resolution of ethnic conflict: Towards a Typology, International

Political Science Review 13(4), pp. 343-358

Edgar H, The Balkans: a Short History from Greek Times to the Present Day, Vol 1972,
Part 2, pages 68 and 83

Horowitz, D. (1985) Ethnic Groups in Conflict, Berkeley, CA: University of California

Press, p. 57

Jackson, S.L. (2009). Research Methods and Statistics: A Critical Thinking Approach 3rd
edition. Belmont, CA: Wadsworth.

Kenya Human Rights Commission (KHRC), Killing the Vote: State Sponsored Violence
and Flawed Elections in Kenya (Nairobi: KHRC, 1998).

Mahmood M. (2001) When Victims Become Killers: Colonialism, Nativism, and the
Genocide in Rwanda, Princeton, NJ: Princeton University Press

Moore, S. (1978), Law as Process: An anthropological approach. 56. Belmont, CA:

Wadsworth.

National Elections Monitoring Unit (NEMU), Courting Disastter: A Report on the Ethnic
Conflict in Kenya. Nairobi: Kenya.

Nwoye, A. (2010) Role of Women in Peace Building and Conflict Resolution

in African Traditional Societies: A Selective Review. Kenyatta University,
Nairobi Kenya

xxix
O’Leary, M. and O’Leary, B. (1993) ‘Introduction: The macro-political regulation of
ethnic conflict’, in John McGarry and Brendan O’Leary (eds.) The Politics
of Ethnic Conflict Regulation: Case Studies of Protracted Ethnic Conflicts,
London: Routledge, pp. 1-40

Orindi V. Huggins, C. (2005) The dynamic relationship between property rights, water
resource management and poverty in the Lake Victoria Basin.
Johannesburg, South Africa

Richardson, J. and Seen, S. (1996) Ethnic Conflict and Economic Development: A Policy
Oriented Analysis School of International Service, American University
March 24, 1996

Smith, A. (2001) Nationalism: Theory, Ideology, History, Cambridge: Polity, pp. 54-

Stathis, N. (2006) The Logic of Violence in Civil War, New York: Cambridge University
Press

Vasu,G. and Hussein S. Conflict Resolution in Africa: A Comparative Analysis of Angola

and South Africa.

Vindelov, V. (2012) Reflexive Mediation with A Sustainable Perspective. DJOF

Publishing, Copenhagen, Denmark.

../AppData/Local/Desktop/New Folder/Ethnic_conflict.htm - cite_ref-18Wallensteen, P.

and Sollenberg, M. (1995) After the Cold War: Emerging patterns of armed
conflict 1989-94, Journal of Peace Research 32(3), pp. 345-360.

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