John Plastow opened the meeting by highlighting that the study ‘Rules of the Range’ was the result of collaboration between ODI and CARE through ECHO-funded Regional Resilience Enhancement Against Drought programme. RREAD grew out of a frustration with knee-jerk responses to drought in the Horn of Africa. This partnership has focused on the more fundamental problems related to drought.

Sara Pavanello began by observing that the suffering portrayed in the media in recent months has once again shown that the resilience of pastoralist communities in the Horn of Africa is being weakened. This can be attributed to a number of factors, an important one being pastoralists’ access to their natural resource base, especially water and grazing land. Pastoralist institutional arrangements around natural resources management – in other words the set of customary rules, norms, and principles governing access to water and pasture land – have become increasingly eroded. Ms. Pavanello went on to discuss key findings from the study, which analyses the formal and informal institutional frameworks and key actors regulating natural resources activities in the Kenya–Ethiopia border areas.

She discussed three types of institutions – customary, formal and hybrid institutions. For customary institutions, Ms. Pavanello noted that pastoralist communities view rangeland as a communally owned resource, but at the same time, ethnic groups and clans exercise control over a specific territory. Sets of access rights have been developed whereby members of one group can access land controlled by others. Mobility, natural resources management and the management of relationships among pastoralist clans and ethnic groups are intimately linked. However, these customary rules have long been under multiple pressures, for example competition for scarce natural resources. It is crucial that actors not view natural resources management in purely technical terms, but recognise the social arrangements and institutional mechanisms. 

Ms. Pavanello then moved onto the role of formal institutions, both at the national level and in the cross-border context. In the national policy discourse of Kenya and Ethiopia, pastoralism is surrounded by perceptions of backwardness. Land tenure security for pastoralists is weak or non-existent. Pastoralists migrating across borders in search of water and pasture are in a very precarious position, with mobility more dependent on the whims of local officials than on a sound policy and legal basis.   Hybrid institutions, specifically cross-border committees, were then discussed. Some NGOs have supported the establishment of cross-border committees, involving local representatives of both state and customary institutions. Some are significantly involved in natural resource management. However, for such arrangements to be successful, a number of issues need to be addressed: power imbalance within the committees between customary and formal institutions, committees have no legal status and no leverage to influence upper levels of decision-making, and finally there are issues of representation.

Ms. Pavanello closed by offering the following recommendations:

• Full recognition of the links between conflict and natural resources management must be made.
• A broad vision and strategy is needed for supporting pastoralism at a regional level.
• The governments of Kenya and Ethiopia need to establish policies which recognise and permit the cross-border nature of pastoralism.
• Securing land rights for pastoralists to prevent the expropriation of the best part of the rangeland and put their land rights on the same footing as those of farmers.
• Any external support to these hybrid institutions and committees should be premised on a thorough understanding of their roles, functions, accountability and representation.
• External interventions to enhance the productivity of the rangelands must be informed by a deep understanding of the institutional picture, rather than by technical perspectives alone.  

Jeremy Swift began by noting that the paper provides an excellent summary of a complex issue, which leads us into key pastoral land issues that will be the focus of his remarks.  

He began by noting that we often make a mistake of talking about ‘customary law’ as though there was only one set of customary laws in Africa. In fact, we need to recognise the different sets of highly diverse laws that exist. Customary law in its different forms has then been subject to formal legal systems, which adds more layers and complications. The outcome is three types of regimes: regimes dominated by customary rules and institutions, regimes dominated by formal institutions and ‘hybrid’ or ‘mixed’ regimes where formal institutions and laws sit uneasily with customary ones.  It seems likely that hybrid regimes are quite important and in many cases work quite well.   

A greater role for hybrid institutions will mean bringing customary and formal law closer together, which has some problems – they come from different places, formal land law is generally uniform and customary law is often more complex. Bringing these together is difficult and requires a real delegation of authority by government to hybrid institutions. He then cited two caveats about hybrid institutions. The first is that customary institutions are not just sitting there on shelf waiting to be picked up and used; it is important to be careful and not damage the wider system they are a part of. The second is the danger of ‘forum shopping’, meaning that people can switch between different legal institutions in order to get the result that they seek. The existing potential of formal law must also be recognised, as it has resources that can and should be used. Amongst other examples, he noted processes in Mongolia, where the government has allocated long rolling to leases to certain pastures.   Related to institutional design, he noted that there are general principles that should underpin the creation of new pastoral institutions: the need for flexibility and diversity in design; promoting subsidiarity (delegating tasks down the chain of authority rather than having decisions being made in faraway capitals) and reducing transaction costs, such as ‘tagging on’ additional tasks to existing customary institutions, rather than creating new institutions to undertake them.  

The final issue discussed by Jeremy Swift concerned cross-border institutions. To work effectively, these committees need clear powers, the ability to cope with local differences, and they require capacity building and technical support. The AU pastoral policy and the AU Border Programme might be able to provide support.

He closed by offering the following conclusions:

• If customary rules are to be the basis for hybrid regimes, this diversity of rules needs to be taken into account;
• Other things being equal, hybrid regimes, combining elements of formal and customary institutions, are likely to be the most successful;
• Whatever regime is chosen, the state’s full approval is essential;
• With multiple source of authority, there is danger of forum shopping.
• Keeping transaction costs low will make a substantial contribution to the success of a chosen institutional regime;
• Look for innovative solutions and new ideas about institutional potentials.

John Morton expressed agreement with the main points, such as how pastoral resilience is being eroded by outside pressures, as well as the major recommendations of the paper. He began by emphasising the importance of recognising other processes in addition to recognising rules. There is often a strong tendency to assume that there is a body of rules, rather than seeing pastoral politics and negotiation as being based on principles that are expressed in different ways. We tend to focus on nouns rather than verbs, such as looking at ‘council’, ‘assembly’, ‘rights’, but not the words to ‘confer’, ‘allow’ and ‘grant’. Also, it is often not recognised that traditional systems are already fairly hybrid and that there are different degrees of skill already within them, and that they can bring resources external to the political process. Referring to previous comments on transaction costs, Prof. Morton noted that administrative effort should be perhaps focused on the ‘difficult’ cases and not on the cases where pastoralists are already interacting harmoniously. He was impressed by the way that the paper links natural resource management and peace; which is not just the absence of war, but is itself a positive process that facilitates building livelihoods. Taking slight issue with the sole focus of institutions over the technical aspects of range management, Prof. Morton noted that not enough is known about what certain pastoralists do to manage resources. He emphasised that we need to engage more with ethnicity and also better understand issues related to nationhood and statehood.

Q&A
Firstly, water was discussed. Who has control of large water points? And when NGOs create new water supplies, such as in camps, do they take account to whom these will belong to in the future? A second comment focused on the need for formal land rights, but that a problem of legal land tenure is that boundaries need to be agreed upon. An alternative is to look at the control of water points.  An audience member then asked whether sedentarisation was one of the papers recommended solutions. Finally, a comment was made on the need for state approval of institutional initiatives. How does one get it in a cross-border situation?

Ms. Pavanello noted that the study sees mobility as the solution, not sedentarisation. Regarding the question on water, the paper did address water in addition to land, and focused on the broad picture of the insitutional setting around these resources rather than delving into each resource. For the question of who manages water, she provided an example of the joint management of a water source in Magado and Forole by a cross-border committee, which emphasises that cross-border committees have a substantial role in natural resource management in these areas.

Jeremy Swift noted the need to distinguish between small-scale and large-scale. Many of these cross border initiatives are relatively small scale, and that the African Union might be well placed to deal with larger scale issues. He gave examples of cross-border livestock marketing and control of animal diseases across borders, which indicates that there are existing activities that could lead to greater coordination across borders.   Simon Levine, co-author of the report, noted that there was a need for some caution about hybrid institutions, and emphasised the need to consider power relations are at play. Sara Pantuliano, the head of the Humanitarian Policy Group at ODI, then made a comment about the need for new models and new approaches. She added that we don’t know enough about the technical aspects of range management; are there suggestions about what should be looked at in greater depth and how?

Regarding the technical aspects of land management, John Morton suggested that one issue to examine is how pastoralists ‘rest’ an area as it is overstressed. He noted that we should be scrupulous about talking about climate variability, and that it’s important to strengthen pastoralists’ adaptive capacity. Jeremy Swift added that we are at the beginning of thinking about hybrid institutions, and that we need to better grasp issues about what occurs in very dry pastures, and that science has gotten way ahead of institutional dynamics.

Ms. Pavanello closed by noting that, while there weren’t foreign land acquisitions in the study area, there are processes that are super-imposed by governments and customary and hybrid institutions do not appear to be able to exert necessary leverage to influence these decisions.