2013 Best Graduate Student Paper

The IUCN Academy of Environmental Law awarded Ms. Elizabeth Gachenga of Strathmore University Law School in Nairobi, Kenya the Best Graduate Student Paper Award at its Annual Colloquium held at Waikato University in Hamilton, New Zealand on June 26th this year. The Selection Committee received 19 papers from post-graduate students from all over the world.

From left to right: Professor Willemien du Plessis, Elizabeth Gachenga, Ben Booth of Edward Elgar Publishing

Ms Gachenga's paper was selected based on the quality and originality of her research. The title of her paper was Customary law systems for water governance and the human rights based approach to water: a case of the Marakwet of Kenya. She did field research in the community to make an unknown customary law system known the world. She combined her knowledge of human rights and environmental law to provide a novel approach to water governance in Kenya. According to her paper, "many common law jurisdictions, legal systems for water resource governance are conceived primarily in the context of statutory law. However, in many cases water resource development and management, particularly at the local level, is governed by informal norms, practices and institutions developed by the resource users. Many indigenous peoples and local communities use customary law systems to govern their natural resources. The importance of customary systems for water resource governance is particularly evident in Sub-Saharan Africa where land and water resources are regulated by plural normative systems including statutory law and customary laws of different ethnic groups. For example, Kenya has a long tradition of customary governance as demonstrated by the Marakwet customary water governance system, which dates back to approximately 400 years ago. These customary institutions play a vital role in water resource management particularly in rural areas where two-thirds of the country’s population lives. In spite of this, water reform in most of these countries has focused primarily on the statutory legal systems, with little attention given to customary law systems. Kenya’s water law, as the case with most modern water law, contains limited provisions for the recognition of customary law and the accommodation of customary law institutions.

The failure to accommodate or integrate customary law systems with statutory systems of water governance adversely affects the capacity of society to attain sustainable development. Various models for recognition of customary law systems of water governance such as land rights and native title approaches as well as agreement-making have been debated in environmental law scholarship. This paper uses a case study of the Marakwet, and critically evaluates the utility of these models in the context of non-settler countries with an indigenous population such as Kenya. The paper explores the potential of using the human right to water and the recognition of the rights of indigenous peoples as a basis for the application of the HRBA to the recognition of customary law systems for water resource governance in the context of a case study of the Marakwet of Kenya".

Many congratulations to Elizabeth and special thanks to the members of the Best Graduate Student Paper Selection Committee for their extra work in reviewing the many papers for this year’s competition. We would also like to thank all the graduate students who submitted their papers for the competition.

The IUCN Academy would like especially to thank Edward Elgar Publishing for their generous donation of a new book entitled Dictionary of Environmental and Climate Change Law edited by Professor Nicholas Robinson, Wang Xi and Lin Harmon and Ms. Sarah Wegmueller which was presented to Elizabeth as a prize for winning this competition.

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