57 Natural Resources Journal 1 (2017)
Formal legal systems comprise a major part, but not the only part, of the “rules of the game” that structure social and social-ecological interactions. Throughout the twentieth century, centralization and consolidation of legal authority were dominant themes among many, if not all, legal systems. That process may have been successful in some cases, but in others the presumed economies of scale from consolidation and centralization either did not materialize or were offset by other social costs, including the failure to accommodate local knowledge, expertise, and preferences. In what could become a theme of the twenty-first century, many countries, including developing countries, have started to experiment with more polycentric legal systems, as the Nobel Laureate Elinor Ostrom referred to them, where local users and user groups have a substantial say in designing and administering rules that apply to them.
This case study of Kenya amounts to a history of trial-and-error in efforts to develop an effective legal regime to govern use of irrigation water, in a country that has suffered for more than a century from seasonal water scarcity, inefficient water use, and user conflicts over water resources. From colonial efforts to import British riparian law to complete centralization of legal authority early in the post-colonial period, pressure on irrigation water resources and water users only increased. Beginning in 2003, however, the government of Kenya has been engaged in a process that is not one of simple decentralization or devolution of authority; rather, it is a story of increasing polycentricism, with meaningful participation by local, regional, and national actors in law-making and administration. The starting point actually occurred in 1997, when local water users (advised by NGOs) formed Kenya’s first Water User Association (WUA) to help avoid and minimize local water-use conflicts. It worked so well that the national government took notice. In 2003, Kenya’s parliament enacted a brand new Water Act, which not only legally recognized the existing WUA, but actively encourage and facilitated the creation of what the statute referred to as Water Resources Users Associations (WRUAs). This move to polycentricism appears to have reduced problems, including conflicts, relating to periodic water shortages; and recently drafted (but not yet adopted) legislative proposals would have the effect of strengthening Kenya’s embrace of polycentric legal control over irrigation water management.
Cole, Daniel H.; Carpenter, Stefan; and Baldwin, Elizabeth, "The Polycentric Turn: A Case Study of Kenya's Evolving Legal Regime for Irrigation Waters" (2017). Articles by Maurer Faculty. 2460.