Full Text 02

UPPSALA UNIVERSITY
Department of Peace and Conflict Research

Master’s Thesis
Spring 2016
Supervisor: Emma Elfversson
ROLE OF STATE WEAKNESS IN

CUSTOMARY CONFLICT RESOLUTION
CASE OF KENYA AND TANZANIA
BY
ANDREI LAHUNOU
ABSTRACT
The only way to resolve existing conflicts, mitigate consequences and reduce risks of their
reoccurrence is to have efficient instrument for justice delivering. In many weak states and areas
across the globe factual absence of a state’s infrastructure, corrupt court system and unbearable
litigation costs leave conflict parties no other option, but to resort to violence. It forces affected
population to seek for alternative dispute resolution mechanisms (ADRs). In African societies,
especially in rural areas, the answer is frequently found in Customary Conflict Resolution (CCR) 1.
Customary conflict resolution, in many cases, is the only present means preventing bloodshed and
consequent spiral of violence. This thesis tries to find out how does state weakness affect usage of
customary conflict resolution mechanisms, attempting to underline importance of coexisting of the
both. I propose main hypothesis – state weakness will have positive correlation with CCRs usage.
I argue then that, widely accepted by scholars, in the selected cases, it will hold true. I test my
main argument on two segments of the Kuria tribe living across the border in Kenya and Tanzania.
Surprisingly, the main argument is not supported by the research results, indicating that state
weakness doesn’t increase usage of CCRs in the selected cases. Moreover, by not finding support
for the hypothesis, case of Tanzania, suggests that a stronger state will have higher usage of
customary conflict resolution mechanisms. Therefore, the research contributes to both theoretical
and practical domains – academia (by testing existing theory and challenging widely accepted
causal story) and policy (by suggesting CCR-related tactics for grassroots NGOs and respective
national governments).
Keywords: Restorative Justice, Ebharaza, Baraza, ADR, Customary Conflict Resolution, State
weakness, East Africa, Tanzania, Kenya
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The thesis is based on profound idea that customary conflict resolution mechanisms are capable to prevent and
resolve conflicts in communities without access to conventional statutory justice systems. The idea is backed by
theoretical findings of scholars and the author’s personal field-work experience in Migori county in Western Kenya.
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ACKNOWLEDGMENT
This thesis would not have been possible without support of my family, friends and loved ones.
I would like to thank my M.A. thesis’ supervisor – Emma Elfversson – for amazing motivation
and professional guidance throughout writing of this research. I want to say thank you to my
internship supervisor and one of the brightest people I’ve ever known – Doreen J. Ruto – for giving
inspiration to write this thesis on the chosen topic. My gratitude goes to incredible team of Daima
Initiatives for Peace and Development, who made my field trip to Migori county possible and
George Chacha, who provided both amazing guidance to the Customary Conflict Resolution
mechanism of Kuria and in-depth interview material in Kenya. I would like to thank Swedish
Institute’s team and the Visby Program manager – Markus Boman – for the offer that gave me
once-in-a-lifetime experience of studying in Uppsala University. Finally, many many thanks go to
our Master’s program coordinator – Liana Lopez – for always being helpful and supportive, to the
best in the world classmates 2014-2016 and to lecturers of the Department of Peace and Conflict
Research for giving us cutting-the-edge knowledge.
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ABBREVIATIONS
ADR(s) – Alternative Dispute Resolution (mechanisms)

CCR(s) – Customary Conflict Resolution (mechanisms)
CCM – Chama Cha Mapinduzi (dominant political party in Tanzania)
DV – Dependent Variable
FSI – Fragile States Index
NGOs – Non-Governmental Organizations
TDRM – Traditional Dispute Resolution Mechanisms
TJ(s) – Traditional Justice (systems)
IV – Independent Variable
SFI – State Fragility Index
UN – United Nations
UNDP – United Nations Development Program
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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................................... 6
PREVIOUS RESEARCH............................................................................................................. 8
THEORETICAL FRAMEWORK ................................................................................................ 11
Conceptualizing State Weakness .................................................................................................. 11
Conceptualizing Customary Conflict Resolution ............................................................................ 14
Conceptualizing State Weakness and CCR ..................................................................................... 17
My Argument .............................................................................................................................. 18
RESEARCH DESIGN ............................................................................................................... 20
Case Selection.............................................................................................................................. 21
Indicators and methods ............................................................................................................... 25
Data collection and time period ................................................................................................... 27
EMPIRICS ............................................................................................................................ 28
National (macro-level) background............................................................................................... 28
Local (micro-level) background ..................................................................................................... 29
Case of Kenya .............................................................................................................................. 30
Case of Tanzania .......................................................................................................................... 32
ANALYSIS ............................................................................................................................ 35
State Weakness ........................................................................................................................... 35
Power vacuum ............................................................................................................................. 37
Usage of CCRs .............................................................................................................................. 39
Limitations of the research ........................................................................................................... 43
Alternative explanations .............................................................................................................. 44
CONCLUSION ....................................................................................................................... 46
BIBLIOGRAPHY .................................................................................................................... 48
APPENDIX ........................................................................................................................... 55
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INTRODUCTION
One of the profound and distinctive characteristics of any state is its monopoly on organized
legitimate violence. Absence or insufficient performance of this function by a state undermines its
legitimacy and authority over citizens.
Many states across Sub-Saharan Africa are unable to extend their authority to geographical,
cultural or temporal frontiers of the country. The factual absence of a state creates a power vacuum
that local authorities fill. In many cases, this local authority comes from traditional practices of
communal living in Africa and various institutions related to communal decision-making.
Moreover, practices of colonial (indirect) rule implied extensive usage of local traditional
authorities: chiefs and councils of elders. Some researchers argue that even post-independence
indigenous governments used the same strategies to deal with the problems inherited from colonial
periods (Zeller 2007).
In public and popular perception traditional leaders, as actors, are frequently more respected
than official authorities (Buur 2007). The authorities are perceived to be corrupt and brought from
outside by colonial powers whereas traditional leadership and practices performed by them
believed to have historical continuity, higher moral value, and local ownership. These local
practices of customary conflict resolution (CCR) can and do substitute demand for justice
delivering and security provision - functions that the state is unable to perform.
Thus the overall Purpose of this study is to examine how state weakness is related to usage of
CCR mechanisms by communities.
My Research gap, in turn, could be found in two controversial approaches about how state
weakness affects customary conflict resolution usage in a country:
On the one hand, such authors as Mac Ginty argue that state weakness makes impossible service
provision and effective justice delivering, creating a power vacuum in communities. This power
vacuum forces communities to seek an alternative framework of social organisation to replace the
state. In Sub-Saharan African societies, this framework is deeply enrooted into principles of
communal living and traditionalism. The subsequent process of “Retraditionalization” increases
usage of customary conflict resolution mechanisms by communities.
On the other hand, other scholars, such as Englebert (State Legitimacy and Development in
Africa, 2002), argue that weak state is reluctant to empower CCR institutions and practices since
they directly challenge the state’s jurisdiction, undermining its legitimacy and sovereignty. The
reluctance of the government to empower customary institutions and traditional authority
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decreases CCR usage in a given community. The decrease is caused by an absence of official
support, hostile attitude and risk of CCR decisions be overruled by national courts.
Theoretically, the two approaches contradict one another prompting opposing dynamics.
Therefore, the research question is how does state weakness affect usage of customary conflict
resolution mechanisms?
Empirically, this research attempts to find out whether widespread “Power vacuum” approach
will be supported by findings in the selected cases of Tanzania and Kenya in 2014-2015. For this
reason, I use my hypothesis – greater state weakness will lead to greater usage of CCRs. I assume
that the hypothesis will hold true in the selected cases.
Surprisingly, outcomes are opposite to the expectations. The hypothesis doesn’t hold true. It
means that in contrast to established understanding of relationship “the weaker a state the more
CCRs are used” in Kenya and Tanzania opposite dynamics take place i.e. stronger state has higher
usage of CCRs. Implications of this are varying from the casual research design drawbacks to
ambitious questioning of the mainstream theory of power vacuum – CCRs relationship.
Current thesis, therefore, contributes to the mentioned theoretical debate in peace and conflict
studies field. It also gives empirical evidence for the policy recommendations to aid/developments
agencies and respective governments, as well as institutions working on preservation and
revitalization of customary conflict resolution, alternative dispute resolution and restorative justice
mechanisms.
I begin my analysis by reviewing previous research done as well as latest findings and
developments on the subject. Then I proceed to conceptualization of my independent and
dependent variables and exploring their relationship theory-wise, finishing the section with my
hypothesis and main argument. Following section is revealing how the research is conducted,
elaborating on the design, case selection, indicators and methods justification. The chapter after is
the place where relevant empirical data on the both cases is presented. Finally, analysis is
conducted in the chapter after, followed by final remarks on the limitations, alternative
explanations and conclusion.
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PREVIOUS RESEARCH
Customary/traditional/indigenous conflict resolution mechanisms attracted scholars’ attention

for a long time. The subject is interdisciplinary per se and had been studied by anthropologists,
peace and conflict researchers, political scientists, law scholars, and practitioners.
Customary conflict resolution, as a phenomenon, was explained through different but,
overlapping positions. First, CCR is analyzed due to presence of unique components and
application of main principles of restorative justice. It’s believed to contain answers for
contemporary problems i.e. having traditional cures for modern conflicts (Zartman 2000). Second,
CCR is considered to be context-caused. The tradition of indirect rule, empowerment of local
leaders and thus traditional practices over the time gave these mechanisms number of advantages
over other means of conflict resolution. Finally, the special importance of CCR lies in a nature of
state where it operates. It’s believed that state’s malperformance causes increased usage of CCR
on the ground. However, others argue vice versa i.e. it’s strong state’s privilege to give away
powers for traditional peacemaking.
One of the prominent authors working in this field is Roger Mac Ginty. In his works, the author
uses a concept of “indigenous peacemaking”. He argued that topic of indigenous peacemaking is
on rise since official recognition of 1995-2004 years as a decade of Indigenous peoples by the UN
(Mac Ginty 2008). He pointed out three factors that affected increase in the general interest:
1. Deeper understanding of conflict complexity and absence of unified recipe for conflict
resolution by means of international organizations and coalitions;
2. Greater interest in topic of sustainable development and arguably profound role of local
communities in the process;
3. Increased importance of participation of local communities in the peacebuilding process.
Another important factor in growing interest about CCR among scholars is fact of frequent state
malfunction and subsequent failure in many countries across Sub-Saharan Africa. In search of
recopies for keeping this vast region peaceful, researchers turn their attention to practices that were
used long time before creation of a modern state on the lands of chiefdoms and kingdoms of pre-
colonial Africa.
For example, Von Trotha argued, that “formal use of traditional authority as intermediary
institutions linking the state to its local orders is a sign of the limits of state power to organize
directly” (Von Trotha 1996, 83). Mac Ginty further conceptualized this kind of “neo-indirect rule”
actions naming it “mediated state”, on which I will elaborate more down below in the thesis.
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A number of scholars were focusing attention on an actor-centered facet of CCR - traditional
authorities. Since customary conflict resolution mechanisms directly connected to traditional
authorities (chiefs, councils of elders etc.), current research uses a lot of findings on the subject.
In line with this, there is case study evidence that suggests that customary mediators are indeed
better able than state-led interventions to address and resolve the causes of conflict (Elfversson
2013, 6).
Many useful case studies could be found in the book “Traditional Cures for Modern Conflicts”
by Ira William Zartman. The work mentions a lot of examples across Africa when local, and
frequently based on custom, peacebuilding practices were more successful than state or extra-state
interventions. For instance, Eghosa E. Osaghae mentioned that tradition (and traditionalism) is
clearly present in modern African politics and it’s a sufficient reason per se to rigorously consider
traditional sources and strategies of conflict management. She also noticed that there were attempts
to use and “entrench” traditional ways even on national level. Despite mainly serving interests of
political elites to maintain power they promoted traditional peacemaking nationwide as side effect
(Osaghae 2007, 203). The same processes were noticed by Englebert, he mentioned that relatively
strong states e.g. South Africa, Namibia, Ghana, Zambia, and Uganda devoted significant powers
to traditional authorities on a national level (Englebert, 1997).
Mac Ginty, by contrast, argued that it’s important to not over-romanticize indigenous peace-
making (read customary conflict resolution) since in some cases it may be exclusionary and affect
the tendency of preserving power at hands of chiefly classes (Mac Ginty 2008). Furthermore, he
argued that customary conflict resolution and indigenous practices of peacemaking could work
only at a grassroots level, making it hard to replicate in other parts of the country, and subsequently
having a low extent of national importance.
Not surprisingly, there is no consistency in scholars’ opinion when it comes to the explanatory
part of this paper - mechanisms. Some argued that state weakness would force its’ elites to devolve
more powers to local, but non-state authorities (Menkhaus 2008). Others argued that the same
cause would lead to decentralization which in certain conditions could play a positive role in
strengthening CCR mechanisms as well (Faguet 2014). Specifically, Lars Buur argued that
“Directly or indirectly, the adoptions of multiparty democracy and commitments to
decentralization have opened up new public spaces for traditional leaders, among other local,
nonstate actors” (Buur 2007, 6).
Englebert, by contrast, claimed that it's not weak or failed states, but stronger ones that are
prone to widening and enlarging juridical strength and status of traditional leaders, and
consequently increasing the role of practices these leaders perform (Englebert, 1997). One of these
practices is customary conflict resolution. The author provided vivid examples of post-apartheid
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South Africa and Namibia. He also assumed that weak and/or failed states have a tendency to
diminish the extent of formal recognition of traditional authority because of the fear of oppositional
cast i.e. decreased legitimacy of the state. Thus the paper aims at testing Englebert’s (1997) claim
by comparing two culturally identical ethnic communities in two neighboring countries.
Another reason for state’s reluctance to sanction CCRs could be found in dynamics of and logic
behind decentralization. It’s argued that hierarchical and patrimonial nature of government and
governance in post-colonial Africa prevents devolution of powers to local (and sometimes
traditional) authorities. As Jorge Martinez-Vazquez and François Vaillancourt put it: “Perhaps
among the hardest obstacle to decentralization is presented in those countries where the “dead
hand” of history because of culture, colonial influences, and other factors ally themselves to create
an environment of hierarchy and power that is antithetical to devolution of power and self-
governance by local entities” (Martinez-Vazquez 2011, 7). Since the increase in Customary
Conflict Resolution practices and heightened role of local traditional elites usually go along with
the processes of decentralization, the argument supports Englebert’s (1997) claim.
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THEORETICAL FRAMEWORK
Conceptualizing State Weakness
Concept of state strength/weakness is a subject of continuing debate field among scholars. What
aspects should be included to accurately define whether a state is strong? How weak states act
externally and perform internally? In the following section I will try to conceptualize it. The
academic literature contains many competing methodologies of defining how strong/weak is a
state. For my thesis, I picked Rotberg’s findings for defining state weakness:
In contrast to clear and seemingly logical division (dichotomy) between weak and strong states,
current theoretical focus shifted towards gradation or continuum of the concept. 2 It’s argued that
weak states show a mixed profile, fulfilling expectations in some areas and performing poorly in
others (Rotberg 2012). “The worse states perform, criterion by criterion, the weaker they become,
and the more that weakness tends to edge toward failure, hence the subcategory of weakness is
termed failing. Weak states include a broad continuum of states that are: inherently weak because
of geographical, physical, or fundamental economic constraints; basically strong, but temporarily
or situationally weak because of internal antagonisms, management flaws, greed, despotism, or
external attacks; and a mixture of the two. Weak states typically harbor ethnic, religious, linguistic,
or other intercommunal tensions that have not yet, or not yet thoroughly, become overtly violent.
Urban crime rates tend to be higher and increasing. In weak states, the ability to provide adequate
measures of other political goods is diminished or diminishing. Physical infrastructural networks
have deteriorated. Schools and hospitals show signs of neglect, particularly outside the main cities.
GDP per capita and other critical economic indicators have fallen or are falling, sometimes
dramatically; levels of venal corruption are embarrassingly high and escalating. Weak states
usually honor rule of law precepts in the breach. They harass civil society. Weak states are often
ruled by despots, elected or not” (Rotberg 2012, 4).
The Author proposed continuity of state strength/weakness instead of regarding it as a
separate phenomenon.
Strong Weak Failing Failed Collapsed State

State State State State
Figure 1. State weakness continuum
2
For the same reason, one of the most well-known indexes of state weakness changed its name from “failed state
index” – prior to 2013 - to “fragile state index” in 2014 and 2015 reports.
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Therefore, I conceptualize state weakness along Rotberg’s (2012) continuum (Figure 1).
However, following the research question, state weakness of selected cases isn’t restricted to fall
into different categories. Here, an aspect of relativism should be underlined. For example, both
cases for analysis could be in the weak category according to Rotberg, but one significantly weaker
than the other in relative terms.
The author also separated particular aspects of a state (so-called political goods) looking at
which it’s possible to categorize governmental strength (and subsequently our mechanism of
power vacuum). They surprisingly resemble Maslow’s (1943) hierarchy of needs for an individual.
But here, state is the one fulfilling these needs instead an individual. This reinforces idea of social
contract theory which would be mentioned below.
They are:
1. Security and Safety. According to social contract theory, people deliberately transfer part
of their responsibilities to a state for exchange of some of their liberties. If the state doesn’t fulfil
its obligations, subjects can choose not to comply. Simply put, if state doesn’t guarantee national
and international security (border control, policing etc.) citizens opt to care for their security by
themselves (carrying weapons, formatting militias or vigilantes).
2. Rule of Law and Transparency. By taking some of the responsibilities and liberties state
also gains some obligations before its subjects. One of such obligations is accountability before
citizens and provision of open and fair justice.
3. Participation and Respect for Human Rights. Status of a citizen also entails opportunity to
choose whom to delegate right of decision-making from his/her behalf. Functionally it means
electivity of government’s representatives.
4. Sustainable Economic Development. Loyalty to the government is not fixed in time and
space, it’s dynamic. Therefore, state’s obligation is to motivate loyalty among citizens by
providing “carrots” i.e. opportunity to live better and have increasing standard of life.
5. Human Development. State is responsible for building comfortable conditions for living
i.e. building schools, hospitals, roads and other crucial infrastructure. This one of the most visible
(and thus persuasive) aspects of state efficiency for citizens.
State weakness could reveal itself both on national (macro) and local (micro) levels. The thesis
scrutinizes both of them. In order to provide “bridge” for the both levels, I define state weakness
(from macro to micro level) in line with Fukuyama (2013) and Weber (1978) i.e. not by strength
of its institutions but through the effectiveness of governance over certain territory and population.
Therefore, I refer to the concept of relative state weakness.
Relative State Weakness is an extent to which the state is unable to perform functions of
governance over population and/or territory in strong-to-collapsed state continuum.
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Ability for governance, in turn, is defined through 5 political goods outlined above by Robert
Rotberg (2012). This choice is caused by the author’s high rate of reference, subsequent wide
usage of his framework and, as an outcome, increased comparability of outcomes of the paper.
Moreover, the 5 political goods are easy to measure/operationalize for assessment of the
mechanisms (more detailed in research design section).
As Pierre Englebert in his article “Postconflict Reconstruction in Africa” argued: - “Africa is
unique in the extent to which some of its states were already dysfunctional prior to collapse and
failure. Most African states have never had effective institutions, relying instead on the
personalized networks of patronage. They have never generated sustainable growth. Factionalism
has always been politically prevalent, and states have never more been often instruments of
predation and extraction than tools for the pursuit of public goods” (Englebert 2008, 110).
Particularly, insufficient delivering of the first two political goods (Security, Safety and Rule
of Law, Transparency) is strongly connected to the idea of mediated state. Mediated state is a
concept introduced as a part of pre-modern study of state formation in Europe. It was actively used
by Ken Menkhaus (2008) to explain inclusion of non-state actors into what would normally be
exclusive domains of state jurisdiction, namely – policing, service provision and justice.
Concept of mediated state is tied to spatial reach of the government. In many countries around
Sub-Saharan Africa the issue of border control and de-facto imposing state sovereignty is a major
issue. In some cases, state resources are scarce so the government redirect efforts to the most
important areas. Areas without any economic or strategic significance become marginal and state
intentionally withdraws from there. To address rising issues, government could employ tactics of
partnership with local authorities or NGOs. A state, supporting this kind of operating mode is
called Mediated state.
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Conceptualizing Customary Conflict Resolution
The term conflict refers to a situation of hostility between individuals, groups, or states resulting
from competition over resources, power, or opposing interests in other areas (Fukuyama, Francis
2006). In certain contexts, one of the ways a conflict situation could be resolved is via customary
conflict resolution mechanisms. 3
Customary Conflict Resolution is a process of organized resolution of a conflict situation by
traditional leaders according to customs of parties involved in dispute. CCR, thus, is a type of
alternative dispute resolution techniques, focused on tradition. Customary Conflict Resolution is
a conceptual triad. I define it through the three parts:
Actors. On of the key elements of the system is leadership i.e. who leads/mediates the process.
Here, common pattern in all around Sub-Saharan Africa is a presence of elders in this role. Elders
are usually respected men in their community, people with wide knowledge and relatively high
socio-economic status. Many scholars argue that leadership is a dominant role in «CCR triad»
(Azebre 2016; Pkalya 2004).
Practice. Another important element of the system is particular actions it performs and
principles it’s based upon. CCR uses customary and traditional practices aimed at conflict
resolution and subsequent reconciliation of parties involved. The performance consists of ritual
and non ritual parts, using principles of arbitration, dialogue and, usually, public openness.
Place. Last component of CCR is a place where the performance takes place. Usually it’s a
place of symbolical significance in a particular community. Applicability of the performance is,
as a rule, restricted to small and mid-size communities where traditional leadership still exists.
Actors
• Traditional
Authorities
• Custom-based
Practice conflict
resolution
• Small and
Place mid-scale
communities
Figure 2. CCR triad
3
Other authors used such concepts as Indigenous, Communal or Traditional conflict resolution interchangeably,
despite the fact the terms are focused on different aspects of CCR and therefore explain slightly different things.
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In conflict and post-conflict settings, peace could be reached in different ways and approaches.
One way to look at it is through lens of ultimate goal of a particular method. In this sense, there
are two broad models: retributive and restorative.
Retributive justice – approach that implies restoration of just balance by subjecting perpetrator
to equal harm/damage. Underlying principle for it is punishment/sanction that discourage others
to commit similar crimes. On local and national levels, this approach represented by courts of
various instances and regulated by statutory law.
Restorative justice – a strategy that implies usage of principles of forgiveness and restoration
of good relationships between parties at first place. In contrast to retributive justice, this approach
genuinely allows for reconciliation of parties involved and, as a rule, could be found in the form
of Alternative Dispute Resolution.
ADR is “a wide range of procedures and approaches other than litigation that aim to identify
resolutions to conflicts that will be mutually accepted by the constituent parties.”- as defined by A
glossary of terms and concepts of Peace and conflict studies (Miller 2005). ADR could take
different shapes, for example, on local level - as our dependent variable and main focus of this
paper – i.e. Customary Conflict resolution mechanisms.
Customary conflict resolution processes are usually described as participatory and emphasizing
consensus-making, reciprocity and restoration of relationships. Mediation is carried out by a
person or persons of high social standing, commonly chiefs or elders, who use their social
legitimacy and facilitative skills rather than manipulation and sanctioning to reach agreement
(Boege 2008, 7-9).
Thus, the whole practice is related to moral aspect of authority/mediator and social pressure
since conflicts that CCR mechanisms are capable to resolve are small and local by nature (villages
and small communities).
As Zartman argued “Many of the practices associated with traditional African conflict
resolution management are classical mediation, or negotiation with a third-party catalyst, within a
particularly strong integrative spirit” (Zartman 2000, 25).
Customary Conflict Resolution is a concept gaining noticeable attention in context of inefficient
performance of a country’s legal system. In contrast to latter, it’s based on local ownership, respect
for tradition, cultural continuity and local customs, but lacks enforcement aspect, relying solely on
social pressure and communal control.
As a result, there is consensus among scholars of ADR and narrower - CCR that these
mechanisms can’t completely replace statuary law in context of modern statehood. As it was put
in Practitioner Guide to ADR: “Although ADR programs can accomplish a great deal…they
15
cannot replace formal judicial systems, which are necessary to establish a legal code, redress
fundamental social injustice, provide governmental sanction, or provide a court of last resort for
disputes that cannot be resolved by voluntary, informal systems.” (Brown 2000, 48) On the other
hand, legal plurality (practice of coexistence of several legal systems in a country) is possible and
even advisable in some cases. After all, in case of inefficient performance of modern legal system
or general state’s instability, it’s a powerful instrument of justice delivering on the local level
(villages, small towns and neighbourhoods).
For example, Emma Elfversson argued that “Case study evidence and anthropological research
points out strong advantages of locally driven conflict resolution practices in addressing local
conflicts between communal groups. Such processes often draw upon customary and indigenous
conflict resolution mechanisms, and ideally score high on legitimacy, community participation and
consensus-building” (Elfversson 2013, 6).
Modern law in Eastern Africa, in many cases, is not a preferable instrument for conflict
resolution on local level since it’s too expensive, time-consuming and susceptible to corruption.
For example, national judiciary in Tanzania and Kenya was established by colonial, western
powers using principles and values that would later compose what is known now as "liberal peace".
Thus newly established artificial state structures ignored cultural and local components of
territories under control. The British were using the same recipe for many of their colonies, and
Eastern African “possessions” were not exception. Thus process of justice delivering usually was
ineffective and costly for local population who got used to traditional ways of peace-
making/conflict resolution.
CCR processes are usually characterized by positive-sum orientation of the parties,
rehabilitation and reinsertion back into community, instead of exclusion
(imprisoning/incarceration) of a perpetrator. The practice also contains principles of shared
responsibility for the conflict’s causes and shared responsibility for the conflict resolution, re-
establishment of harmony. In general, “African approach” to CCR implies treatment of perpetrator
as an ill person that needs to be cured, not punished.
Zartman had also argued that traditional conflict management techniques still exist due to
existence of “communal spirit” and will to deal with conflicts intra-communally (Zartman 2000).
Thus relationships and values are essential preconditions for CCR to happen, and practice could
be successfully performed only in societies with high presence of symbolism and low level of
social atomization. These characteristics are inherent features of Chiefdom and tribal models of
socio-political organization i.e. precolonial state of Sub-Saharan Africa.
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Conceptualizing State Weakness and CCR
The paper falls under a category of greater theoretical debate over liberal peace-making vs.
indigenous/local ownership. In recent years customary peace-making or bottom-up approach has
gained significance even among main "pillars" of liberal peace – UN, World Bank and major
Western powers. Another viewpoint is presented by a number of authors arguing for the greater
role of cultural aspect in conflict resolution (Avruch 1998, 63). More broadly, the field of
customary ADR has gained increased attention by both academia and practitioners. This thesis
attempts to deepen and enrich existing knowledge on how different types of state strength affect
CCR usage. In order to do this, conceptualization of how both variables interact should be made.
Weak states have a low level of justice delivering and incapability for service and security
provisions. The government is interested in showing its presence in communities out of
jurisdiction’s reach, but it is unable to do so 4. In this context of state absence, alternative dispute
resolution mechanisms are means that becoming more and more popular for a community to look
at. In many African countries, ADR is nested in traditional practices or customary conflict
resolution.
This is a case in two countries that had been picked for analysis – Kenya and Tanzania.
Moreover, the tribe I consider in the countries is still systematically using customary conflict
resolution mechanism called Ebharaza. Perceived as rather primitive people by other tribes, living
in border area where the weak state is usually having low presence, case of Kuria could potentially
provide a good example of a community affected by power vacuum mechanism. Thus I formulate
my main argument as state weakness would lead to increase in CCR mechanisms’ usage by local
communities.
Additionally, state weakness reveals itself in accompanying negative developments.
Specifically, four of the negative developments, causing push (power vacuum) forces, changing
levels of usage of customary conflict resolution instruments. The four factors are:
Conflict along rigid identities (religion, ethnicity, ideology). I’ll look at the presence of major
intrastate conflict since country’s independence as well as evidence of ethnical, ideological or
religious tensions.
Economic inequality and disproportional development. I’ll look at how equally territories are
developed and wealth distributed among population via Gini Index (2015).
4
However, sometimes, a weak state prefers to give away some of its’ inherent responsibilities to non-state actors. If
the government has no negative perceptions about traditional leaders and practices – duty of justice delivering might
be allocated to CCRs. This type of state is called Mediated State.
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The level of corruption. I will use Transparency International’s Corruption Perception Index
(2015) for the both countries under analysis.
Policies, Politics, and Elites. I’ll investigate general policies of the states under analysis along
liberal-socialist dichotomy, presence of predatory political elite and means the latter utilize for
gaining a power.
I argue that the four developments have a major influence on CCRs due to direct impact and
visibility for potential users of CCRs. For the local population in largely rural Migori Country and
Rorya District choice between conflict resolution mechanisms is based on trust/authority of justice
provider and the ultimate goal of achieving justice.
The above mentioned negative developments, tangible and visible for rural population and
caused by state weakness, undermine popular trust in a state-run justice, and setting priority for
customary conflict resolution mechanisms. High presence of these negative developments impedes
a state’s capability to provide 5 political goals, outlined above. Incapability to provide “the five”
is causing distrust in state-run conflict resolution and forces affected population to rely on
traditional methods - CCRs.
Hypothesis: The higher extent of state weakness the more likely increase in usage of customary
conflict resolution mechanisms by local communities.
My Argument
From the hypothesis, I derive my main argument. I argue, that in the selected cases the
hypothesis will hold true. It means that a case with higher extent of state weakness is expected to
have higher usage of CCR.
State is not directly related to CCR practices. Decisions of many customary conflict resolution
mechanisms don’t require executive body due to relying on values of respect, communal
acceptance, reputation and commitment. Compliance is driven by communal/social pressure. It is
invoked not to punish individual but to restore good relationships between conflicting parties.
State malperformance in such areas as Conflict along rigid identities, disproportional
development and economic inequality, high level of corruption as well as inconsistent policies and
predatory elites are main drivers of the state’s dysfunction on the local level. Dysfunction and
passivity of the state generate power vacuum in the affected communities.
Presence of power vacuum, which implies inefficient delivery of crucial functions by a state,
directly affects and stimulates people to use alternative to courts conflict resolution platforms. The
mechanism acts as push factor, producing a need for a change. The justice provider is found in
18
customary conflict resolution mechanism with its relative simplicity, transparency, low costs and
proximity. The need causes shift in priority towards CCRs, increasing usage of them.
Apart from understanding a state as a push factor, it is important to mention how engaged a
state is in the process. It is not an active participant in the mechanism of the power vacuum. Here,
state weakness works as favorable condition or reason for CCRs to prosper, and impulse for an
increase in CCRs usage is need-based and locally driven.
Consequently, I assume my causal argument will have moderate impact, since it aims to explain
variation in dependent variable. I look at the CCR usage through lens of state passivity and active
local engagement in the process (via Power Vacuum), but specifically focusing on a state weakness
as a cause. However, I’m aware of other possible explanatory variables and mention them in study
limitations/alternative explanations part.
National Weak State (IV)

(Macro) level
Local (Micro)
level Power vacuum CCR usage (DV)
Figure 3. Causal diagram
As illustrates the figure above, the Independent Variable and the Dependent Variable are
located at different levels of analysis – Macro and Micro respectively. Consequently, the case
selection and the analysis to follow will be twofold i.e. targeting both levels.
19
RESEARCH DESIGN
This research is confirmatory by nature i.e. based on existing theory/concepts and built on
hypothesis testing (Koestler 2015). For the research, I use method of structured focused
comparison. Research is structured since a set of the same questions applied to cases. Research is
focused since I compare only certain aspects of selected cases (Bennett and George 2005, 70)
A comparative case study is chosen as design for this paper. The design allows measuring
variation in dependent variable – CCR usage – via a process of comparison. Furthermore, since
there is no unified dataset for CCR usage, a Large-N study is impossible to conduct in allocated
time. The scope of the paper, therefore, is reduced to qualitative study with two cases of Kenya
and Tanzania. The thesis has process-tracing facet due to focusing not solely on correlation
between IV and DV, but scrutinizing underlying causal mechanisms. Finally, qualitative research
design allows for deeper and closer analysis of the causal mechanism and the theory in a whole.
Since qualitative research implies selection of cases by a researcher (no possibility for random
sampling) I use most similar case selection design or Mill’s method of differences. The method
implies variation in dependent variable (CCR usage) while holding a maximum amount of the
other variables constant. On the other hand, manual selection of the cases hides danger of selection
bias. In order to avoid it, I rely on a technique called “appropriate frame for comparison” (Collier
1996). Firstly, the technique implies research having “contrast space” – measurable variation of
DV in two cases. Secondly, the technique requires similarity in causal mechanisms – processes
linking IV and DV are likely to be the same in two cases.
Empirically, it’s challenging to pick two cases according to a difference in DV due to the lack
of available data. CCR practices are usually recorded on a paper, but not shared publically. The
thesis’s assumption thus is that CCR usage in selected communities will be higher in Kenya than
in Tanzania. For the purpose of the research, I apply “the contrast space” to Independent variable
i.e. picking relatively strong and weak state for comparison. On the other hand, both cases have a
similarity of the causal mechanisms. Most importantly, the cases were chosen according to the
best possible basis for comparison – controlling for a maximum amount of variables.
Two cases, selected for the study were Tanzania and Kenya. The neighboring countries share
cultural, historical, ethnical and linguistic similarities. It dramatically increases the number of
control variables in the research, limiting space for possible alternative explanations. However,
both countries show a significant difference in terms of the independent variable. The extent of
state weakness in Kenya is significantly higher than the one in Tanzania. It benefits the research,
enabling testing the hypothesis in favorable conditions.
20
For deeper focus, I consider a tribe, whose members live on opposite sides of the border – Kuria
(Abakuria). Two segments of the tribe were physically separated by border during colonial times.
At allowed state jurisdiction to be the main factor affecting developments in tribal communities.
At the same time, Kuria’s mechanism of CCR – Ebharaza – is still widely practiced, in contrast to
many other tribes in both countries. This provides unique research context, where a maximum
amount of other variables can be controlled. Generalizability of this research reaches a broader
population of Eastern African states and countries with existing structures of CCR.
Lastly, a qualitative design of any case study doesn’t allow for full control of inclusively all of
the possible variables. Therefore, revealed confounding, intervening or any other variable,
possibly shifting strength of the original co-variation, will be discussed in limitations and
alternative explanation section.
Case Selection
I pick cases from East Africa region (Rwanda, South Sudan, Kenya, Tanzania, Burundi,
Uganda, Somalia, Ethiopia). The region is generally characterized as dominantly British colonial
domain, with specific institutional and cultural base for state formation. The population thus is
limited mainly to the countries in Eastern African context but could be considered applicable to
other parts of the world with similar socio-political characteristics.
Two cases - Kenya and Tanzania were chosen for analysis. The chosen cases fall under “macro
level” category. Case selection is based on variation in independent variable i.e. Case I has high
state weakness, and Case II - low. It’s important to underline once again that, instead of looking
at state weakness in absolute terms, I look at relative state weakness.
Kenya is not the most unstable/fragile country in Eastern Africa. Somalia, for instance, is
number two in the world in terms of fragility, but the country was omitted from possible case
choice for several reasons:
First, it’s considered to be failed state with on-going civil war. Many scholars argue that civil
war itself is destroying customary conflict resolutions, interrupt practices of CCRs in communities.
Second, it’s impossible to assess my second mechanism due to necessity of functioning state to
include CCRs in legislature. Lastly, three parts of Somalia have different colonial past and usage
of CCRs (Xeer Soomaali) in Southern Somalia is significantly lower than in Northern
(Somaliland) and Eastern Somalia (Puntland).
Second, according to the fragile State index (2015) other Eastern African countries in the same
risk group have approximately the same level of state fragility as Kenya (21st position) - alert:
21
Burundi (18), Ethiopia (20), Uganda (23), Eritrea (24), Rwanda (37). It allowed me to be more
flexible in the first country choice.
Third, the case of Kenya is closer to the author of this thesis because of conducted field work
for half a year in the country, advanced knowledge of Kenyan context and established connections
with some of the peace-workers in the country.
Lastly, Kenya has adopted new constitution in 2010 with broad provisions for power
devolutions and decentralization. Many researchers (e.g. Faguet 2014) argue that these processes
lead to weakening the national government of a country in a whole by strengthening local
governance. Specifically, Article 159 of constitution of Kenya makes the case more interesting to
analyze. This article mentions TDRM – Traditional Dispute Resolution Mechanisms and
responsibility of local governments and courts to assist and promote it.
Tanzania, as the second country for comparison, was selected due to several reasons:
First of all, due to being the only country in Eastern Africa that falls under the different and
more stable category of state fragility (63rd position) – high warning. Despite neighboring
relatively weak Kenya and significantly destabilized Burundi, the country has been continuously
the most stable in the region.
Second, Tanzania is the closest country to Kenya culturally and linguistically. Both countries
are mainly Swahili and English-speaking. Many tribes could be found on opposite sides of the
border (Maasai, Kuria, Luo etc.) and thus two countries are sharing a great cultural similarity.
Population-wise, two countries stand closely to one another, having approx. 51 million inhabitants
in Tanzania and 46 million – in Kenya.
Lastly, tribal factor still plays an immense role in both Kenya and Tanzania. In latter though,
political conflicts are focused around party-lines and generally detached from an ethnic/tribal
dimension, so prevalent in Kenya.
For the same reason, in both countries, I focus on a tribe level for micro analysis. Case-selection
was based on a) Salient practice of customary conflict resolution mechanism in order to assess
intensity of its usage (rural area/low level of urbanization & industrialization); b) Presence in both
Tanzania and Kenya in order to apply the independent variable; c) Geographic concentration of a
tribe in measurable administrative entities in order to quantify level of power vacuum perception;
The chosen tribe – Kuria – is a part of larger “Bantu” cultural group. I focused on selecting a
case from the same cultural group because picking two different cultural groups, i.e. different
tribes, would imply a higher risk of differences in traditions, a level of socio-economic
development and external perception of them by other tribes and states.
When it comes to tradition, both Tanzanian and Kenyan Kuria speak the same language, and
share identical cultural treats, such as: female genital mutilation, polygamy, early child marriage
22
and big families. The two chosen segments of the tribe represent mainly agriculturalist tradition.
The factor was taken into account while selecting particular communities for analysis since the
different way of life (nomadic/pastoralists and settled/agriculturalists) will have different reasons
for conflict, methods for its resolution and extent of CCR usage. 5 Moreover, identical type of
societies allows for control for types of crimes (expected to be identical) the most frequently
occurring in the communities.
Both segments of the tribe remain interconnected by family and clan structures sprawling across
the border. It was also observed by the author on the ground and confirmed by the interviewee that
despite present visa regime between two countries, crossings of the state borders by people from
neighboring districts without official authorizations are prevalent and largely ignored by police.
Therefore, active remaining connections and great extent cultural and social similarity were taken
into account.
Socio-economically, Rorya (Tanzania) and Migori (Kenya) districts, where Kuria tribe has
significant presence, are underdeveloped and largely marginalized. Both regions have low level of
industrialization, with only few working soap, milk and leather production enterprises, practically
not providing population with jobs. However, according to Afrobarometer (6th Round, 2014-2015),
employment rates (part and full time) are almost identical across the border with 77,1% in Migori,
Kenya and 75% in Rorya, Tanzania. Both tribes rely mainly on crops production and livestock
keeping as a main source of revenue and employment. Low level of industrialization, high extent
of illiteracy and specific cultural practices of Kuria contribute to negative image of the tribe. Other
tribes in Tanzania and Kenya generally perceive Kuria as rather primitive and backward people
(Chacha, interviewed 12-04-2016).
However, the assumed “backwardness” contributes to the greater visibility of traditional
practices of conflict resolution and comes to be beneficial for the research. Considered by many
as retrogressive, the practices of the tribe are well preserved and respected by its members. In
contrast to many other non-nomadic tribes, CCR is consistently practiced by the Kuria people.
Therefore, high extent of historical memory of the ethnicity is another reason setting them aside
from other possible case selection choices.
Finally, the Kuria people, in contrast to other neighboring tribes (e.g. Maasai, Luo), are not well
researched. Not much academically documented and known about the instrument of conflict
resolution in Kuria communities. Relatively small size of the tribe, dispersion between two
countries and negative perceptions contributed to a lack of scientific interest both locally and
5
However, I encountered several unreliable, non-academic statements (without quantitative evidence) that Kuria in
Tanzania remain generally pastoralists whereas Kenyan Kuria live mainly on crop production.
23
internationally. This aspect, therefore, makes the tribe extremely interesting case to select and
study.
Image 1. Approximate area, where Kuria (Black) compose majority
Additionally, a physical location of the tribe (on the border of the country) gives better salience
and visibility for state weakness since those areas are one of the first to be affected by power
vacuum mechanism. Being aware of other geographical factors, affecting state strength in an area,
such as distance from the capital, a size of a country, terrain and landscape, the case selection is
tribe and practice centered. Nevertheless, the mentioned factors should be rigorously considered
and controlled in future studies.
Access to data played a significant role in choosing the tribe for analysis. Having contacts of
local peace coordinator, who has been consistently recording and documenting CCR practice of
the Kuria people – Ebharaza – was crucial for subsequent empirical analysis.
Finally, and most importantly, the tribe was selected due to being present both in Kenya and
Tanzania. Case selection thus resembles the one presented by Posner, D. N. (2004), where he
studied the same tribe in two neighboring countries - Malawi and Zambia. According to Kenyan
Census 2009, there are about 260.000 Kuria people living in Kenya. In Tanzania, according to
24
different estimates, it’s about 600.000-700.000. 6 The tribe members, therefore, were physically
separated by the border and thus different state’s policies and state effects for more than a century.
Consequently, the assumption is that there are high chances for variation in CCR usage.
Indicators and methods
For collecting data for independent and dependent variables I use methods of observation and
interview. I also use both quantitative and qualitative data as indicators for variables of interest
and explanatory mechanisms.
National government’s strength doesn’t equal to local government’s strength. By the same
manner, bad performance of national government doesn't mean bad performance of local
government. However, my assumption in the research is that both Micro and Macro levels would
have a positive correlation. In the sake of approval of the assumption, I use two different indicators
for assessing the national and local strength of both states.
For assessing the independent variable, I use the Fragile State Index (FFP 2015). The index
is a product of The Fund for Peace and it includes all important aspects of fragile i.e. weak state
and allows for case selection according to variation in the independent variable. However, as much
as not all of the characteristics of a weak state will affect CCRs to the same extent, not all of the
FSI indicators are related to the level of usage of customary conflict resolution mechanisms. In
order to conduct structured and focused analysis, I’ll use FSI indicators corresponding to four
major negative developments of a weak state, visible on the ground and having direct effects on
CCRs usage, namely:
Conflict along rigid identities (ethnicity, religion, ideology); Economic Inequality and
disproportional development (Gini index 2015); Level of corruption (Transparency International
CPI 2015); and Politics & Elites.
I’ll analyze two country-cases to be selected and find out which state is relatively weaker along
these characteristics. The country, performing worse along the four is expected to have a higher
level of CCRs usage according to the main hypothesis.
For assessing mechanism of a power vacuum, I use data from Afrobarometer. For each
outlined “political good” I picked one indicator using quantitative data from Afrobarometer. The
set of the same questions was asked in both countries, therefore, I consider it reliable. Since power
vacuum is something that could be adequately measured only by those, subjected to the power the
indicator is valid for use. Thus, each response from Afrobarometer survey indicates how
6
National cohesion and identity-building policies in Tanzania are affecting official data on tribal composition. In the
latest 2012 general population Census data (statistical tables and the final report) there is no data on ethnic
composition of Tanzania whatsoever. Interestingly, word “tribe” was never mentioned in the 181 pp. document.
25
weak/strong perception of power vacuum is. Combination of responses to the five questions will
indicate relative power vacuum in two communities. Analysis will be conducted using SPSS’s
Crosstabs function.
For the first political good, Security and Safety, I use answers to the question “Over the past
year, how often, if ever, have you or anyone in your family: Felt unsafe walking in your
neighborhood?”. Answering this question, respondent indicates the extent of public security.
Ensuring public security, in turn, is an essential duty for the government.
The second indicator is Rule of Law and Transparency. For operationalization, I use answers
to the question "In your opinion, how often, in this country: Are people treated unequally under
the law?".
The third indicator is Participation and Respect for Human Rights. Since small and mid-size
communities interact with local government mainly I chose answers for the question "How much
do you trust each of the following, or haven’t you heard enough about them to say? Your Local
Government Council" as the indicator.
Fourth political good for operationalization is Sustainable Economic Development. The
answers to the question "How well or badly would you say the current government is handling the
following matters, or haven’t you heard enough to say? Managing the economy" was chosen.
The last indicator is Human development. The answers for the question "How well or badly
would you say the current government is handling the following matters, or haven’t you heard
enough to say? Improving the living standards of the poor" suit well for operationalization.
Dependent variable – CCR usage, is qualitatively assessed through share (number) of cases of
conflicts/disputes brought to community meetings (baraza) for consideration by traditional
authority in a process of justice delivering (ebharaza). By traditional authority I imply council of
elders or any other collective body/person responsible for decision over the brought case to
“baraza” – community meeting.
Quantitatively, the variable is assessed through level of community meetings attendance
(SPSS’s Crosstabs). Since process of justice delivering “Ebharaza” happens only during open
community meeting “Baraza”, for assessing extent of CCRs usage quantitatively, I rely on
measuring level of community meetings attendance. The following question was picked:
"Here is a list of actions that people sometimes take as citizens. For each of these, please tell me
whether you, personally, have done any of these things during the past year. If not, would you do
this if you had the chance: Attended a community meeting?"
26
Data collection and time period
For measuring independent variable, I use the fragile states index 2015. FSI is a straightforward
quantitative tool, allowing to accurately assess how fragile state is. It is based on twelve socio-
political and economic indicators of the CAST methodology. 7 The Conflict Assessment System
Tool was developed by The Fund for Peace in order to asses a state’s vulnerability/weakness. The
tool uses qualitative and quantitative data from public sources and it is utilized to quantify FSI.
For measuring the mechanism of a power vacuum, Afrobarometer data 2014-2015 is used. For
analysis, I look at the tribe that lives in both Kenya and Tanzania - Kuria. I will also pinpoint
particular areas (administrative districts/counties), according to an availability of data, where
Kuria ethnicity represents a significant share of the population.
To gather data for the dependent variable, I will invoke document analysis i.e. open internet
sources and papers on local customs and practices. I will also conduct a semi-structured interview
with an expert on the ground (George Chacha Musa Mwita 8, Peace and Conflict Consultant, an
elder of Mabera). Due to specific (quantitative) nature of the dependent variable and lack of open
data, there are significant limitations for effective triangulation of the dependent variable. To
improve it I will compare levels of community meeting attendances between the countries using
quantitative data from Afrobarometer (2014-2015).
The time period of the research is 2014-2015. This period is chosen due to having a potential
for providing up-to-date conclusions/findings.
Variables/Mechanisms: Indicators 9:
Independent Variable: State weakness State Fragility Index (Indicators, related to CCRs usage)
Mechanism: Power Vacuum Aggregated data from Afrobarometer
Share of cases submitted to consideration by CCRs;
Dependent Variable: CCR usage
Additional* Ratio of systematic attendance of baraza 10
Table 1. Variables, Mechanisms, and their Indicators
7
It’s important to mention that the paper puts equal sign between state fragility and weakness.
8
The interviewee was chosen due to having relevant professional and educational backgrounds. The person is
constantly involved in monitoring and documenting practices of Ebharaza both in Tanzania and Kenya. He is also an
elder of his village, who has good name and respect in his Migori county and beyond.
9
Mechanism II and the Dependent Variable have additional indicator each for strengthening empirical analysis.
10
Baraza (Swahili) – community meeting.
27
EMPIRICS
National (macro-level) background
Macro level of the research is concentrated on a national level. Two cases chosen for the
research are Kenya and Tanzania with a focus on state weakness as the independent variable.
In order to enforce the independent variable, along with the State Fragility Index’s data I’ll
mention four most salient negative developments of a weak state, affecting usage levels of
customary conflict resolution mechanisms on a local level, namely: Conflict along rigid identities
(ethnicity, religion, ideology); Economic Inequality and disproportional development (Gini index
2015); Level of corruption (Transparency International CPI 2015); and Policies, Politics & Elites.
The first case for the study, Kenya, as we know it nowadays, was initially formed as a British
colony. In 1964 the country gained independence as a de-facto one-party state. The party system
existed until the end of the cold war, after which, a resilience of the state was challenged by
external Western powers, who lobbied the government for shifting to electoral democracy. Under
foreign pressure, Kenya transformed itself into multi-party democracy in 1991 (Sabar 2002).
Elections became highly debatable and hot issue ever since. Politicians, seeking for additional
votes, were focusing their campaigns on ethnic, territorial and economic differences, widening
existing socio-economic cleavages. Hate-speech and large-scale electoral fraud exploded into
post-electoral violence in 2007-2008. The crisis left more than a thousand killed, dozens of
thousands injured and more than half a million displaced people.
As a response to the violence, the government of Mwai Kibaki adopted revised constitution in
2010. The new document provided space for broad decentralization and devolution in following
years. Local governments received significantly more powers, whereas the national government
lost share of responsibilities.
The second case, Tanzania, is a result of a merge of two colonial regions – British-controlled
mainland Tanganyika and Arab-ruled Zanzibar archipelago in 1964. Soon after the appearance of
the country on political maps, the policy of wide nation-building (Ujamaa) has begun. The state
supported adoption of principles of shared language (Kiswahilization), religious secularism,
detribalization, and monopartism (Wangwe 2005). The policy thus was targeting weak spots of
the country - uneven economic development of households and territories, and extremely complex
ethnoreligious composition.
Tanzania has about 125 different ethnic groups. As well as Kenya, the tribes have differences
in culture, traditions, and mode of living. However, in contrast to Kenya, tribal differences pay a
significantly lesser role in everyday life. The policy of socialism, established by Arusha
28
declaration in 1967, was continuously pursued by the Tanzanian government. The modern high
sense of shared identity of Tanzanians was forged by Mwalimu Nyerere – a first leader of
independent Tanzania and his policy of Ujamaa (translated as “familyhood” or “socialism”).
Local (micro-level) background
Micro-level of the research is limited to an ethnic group (tribe) and CCR practices of this tribe.
Two tribal segments, picked for research are Kenyan and Tanzanian Kuria.
Kuria is a tribe in Western Kenya (Kuria district of Nyanza province) and North-Eastern
Tanzania (Rorya, Tarime and Serengeti districts of the Mara region), a part of larger Bantu-
speaking ethnic group. The tribe is settled in lush favorable for agriculture area on eastern shores
of Lake Victoria. The area is largely rural with biggest towns of Tarime (340.000 inhabitants) and
Migori (47.000 inhabitants). Population-wise, Kuria consists of about 860.000 – 960.000 in the
both countries (Kungu 2015).
Both Tanzanian and Kenyan Kuria lead exactly the same lifestyle having the same culture,
beliefs, and traditions. Historically Kuria were pastoralists, but dwindling of animals forced them
to shift towards farming (Chacha, interviewed 12-04-2016). Perception-wise, Kuria considered
being rather primitive and backward by other tribes in Kenya and Tanzania, inter alia, due to their
preference for traditional methods of conflict resolution and largely unchanged way of living.
Customary conflict resolution mechanism in the Kuria tribe is called Ebharaza (Baraza –
community meeting in Swahili). The community meeting thus is a platform for collective resolving
of conflicts. The system is almost identical to practices of other agriculturalist tribes in the region.
As well as many other traditional justice systems, Ebharaza is composed of the three components:
Actors: Council of elders - elected by a community, women (approx. 30%) and men (approx.
70%). The men and women are usually elders in their village, people of “honor and integrity”
(Rural Secrets 2014), who make a decision on the conflict situation. Both parties/representatives
of the parties might be summoned for the sitting, depending on the case type/severity.
Practice: Ebharaza – a process of conflict resolution. The elected Ebharaza members act as a
jury giving a ruling in one or several sittings. All community members can attend the sittings and
have a right of consultative voice. When the ruling is made, parties oblige themselves to comply
with the decision (e.g. deadlines for a compensation). If the parties, mediated by the elders can’t
reach an agreement, the case might be redirected to higher court/chief’s office. It costs around 4$
for a case to be considered by Ebharaza. The price for the decision is paid by the party that lost a
dispute.
29
Place: Baraza – community meeting. Meeting once or twice per week at symbolic to
community place, as a rule, represented by a tree. Therefore, the practice is usually referred as
“justice under the tree”.
Case of Kenya
The Kenyan government was progressively losing its strength. From a 33rd place in 2006, the
country went down by 12 positions, according to the ranking of state weakness (FSI 2006-2015).
In 2015 Kenya was ranked 21st out of 178. The country falls under “Alert” category which implies
malperformance in 12 areas. The country harbors presence of almost all preconditions of state
failure. Among others, there are several developments in Kenya, pointing at state weakness:
Conflicts on ethnic and religious grounds: Kenya has 3 large ethnic groups: The Bantu, the
Nilotes, and the Cushites. These groups are composed of 42 tribes (Kenya Information Guide
2016). Each of the tribes has distinct culture, traditions, and customs. By the same manner, each
tribe/ethnicity is treated differently by the state itself. Not surprisingly, many conflicts are based
on ethnic and intertribal conflicts. Politics are based around intertribal struggle. The identity of
Kenyans primarily comes from their tribe, and only then nationality.
Another development is religious tensions. Despite being dominantly Christian country, Kenya
has significant Muslim minority. There are around 11% or about 4.3 million people practicing
Islam (The world Factbook 2016). Muslim minorities, especially those of Somali origin are
discriminated on an everyday basis, and Kenyan government is often criticized for extra-judicial
killings of Muslims and state-run executions of presumably radical Islam preachers.
Economic inequality and disproportional development: According to Gini Index, in 2005,
Kenya was ranked 153 out of 176 (Gini index 47.7 %), taking place in the top 25 countries with
the highest economic inequality in the world (The world Factbook 2016). Unequal distribution of
wealth takes place not only between individuals but territories. There are a number of marginalized
regions such as Turkana, Wajir, Mandera etc. where the state has limited or no presence at all.
Governance devolution in 2010 implied a further decrease in the equal development of the regions.
Corruption and misuse of power: Corruption is on of the main signals of state weakness. Kenya
has been ranked 139 out of 168 countries in terms of corruption perception, taking place among
the top 30 most corrupt countries in the list 11 (Transparency International CPI 2015). Since the
introduction of the multi-party system, every government of Kenya was involved in a scandal
related to corruption or/and misuse of power. Corruption is directly linked to the poor provision
11
Although reliability of Transparency International’s Corruption Perception Index (CPI) could be debatable.
Surprisingly, creation of TI CPI itself was inspired by Kenya (Wagner 2014)
30
of services, deteriorated security, a prevalence of patronage and nepotism in Kenya (Ombaka
2015).
Predatory elites: Generally speaking, predatory behavior of the political elites is a widespread
phenomenon across post-colonial African states (Bates 2008). Particularly, in Kenya, predatory
elites are the quintessence and the main reason of the state weakness. Self-enriching and benefiting
mainly specific ethnic groups, political elites cause erosion of the government institutions. These
actions are also significantly undermining people’s trust in the elected governments.
Undermined trust causes power vacuum both in perceptions and factually. Since the mechanism
could be assessed by joint consideration of all the relevant aspect of the state weakness on micro
level (subjective), data from Afrobarometer is used:
“Over the past year, how often, if ever, have you or anyone in your family: felt unsafe walking
in your neighborhood?”
Never: 47.8%; (22) Several times: 26%; (12) Always 0%; (0)
Just one or twice: 19.5%; (9) Many times: 6%; (3) Total: 46
“In your opinion, how often, in this country: Are people treated unequally under the law?”
Never: 17.7%; (8) Often: 35.5%; (16) Don’t know: 0%. (0)
Rarely: 2.2%; (1) Always: 64.4%; (20) Total: 45
"How much do you trust each of the following, or haven’t you heard enough about them to say?
Your Local Government Council"
Not at all: 10.6%; (5) Somewhat: 46.8%; (22) Don’t know: 0%. (0)
Just a little: 27.6%; (13) A lot: 14.8%; (7) Total: 47
"How well or badly would you say the current government is handling the following matters,
or haven’t you heard enough to say? Managing the economy"
Very badly: 57.4%; (27) Fairly well: 8.5%; (4) Don’t know: 4.2%. (2)
Fairly badly: 29.7%; (14) Very well: 0%; (0) Total: 47
or haven’t you heard enough to say? Improving the living standards of the poor"
The tribe I picked for the analysis is not an exception. Kenyan Kuria (13% of tribe lives in
Kenya) moderately use their CCRs. According to the local peace coordinator, approximately 40%
of cases are submitted to Ebharaza. The main obstacle, reportedly, is an absence of recognition of
Ebharaza’s decisions by national courts in Kenya.
31
Quantitative data, in turn, shows following:
"Here is a list of actions that people sometimes take as citizens. For each of these, please tell me
whether you, personally, have done any of these things during the past year. If not, would you do
this if you had the chance: Attended a community meeting?"
No, would consider: 19.1%; (9) Yes, Several times: 48.9%; (23) Don’t know: 0%. (0)
Yes, once or twice: 12.7%; (6) Yes, often: 17%; (8) Total: 47
Case of Tanzania
Despite having enormous negative side effects such as a regulatory economy, mass starvation
and foreign aid dependency, ideas of Ujamaa positively affected the strength of the postcolonial
Tanzanian state. It has been a relatively stable country without any intrastate conflicts since its
independence (UCDP 2015), being a rare exception not only in the Great Lakes region but in Sub-
Saharan Africa in general. Moreover, Tanzania was ranked 63rd fragility-wise in 2015, lifting the
country to the status of having the highest governmental strength in the Eastern Africa.
The religious composition of the country is unknown. There is no comprehensive external
research on the topic, and the government was continuously excluding any questions on ethnic or
religious affiliation in censuses since 1967. However, the US CIA data estimates 61% of the
country being Christians, and 35% being Muslims (4% others) (The world Factbook 2016).
Economy-wise, Tanzania is one of the poorest countries in the world. It has been in a deep
economic crisis during the Ujamaa era (between 1967 to 90s). Only after 90s liberalization, the
country started to show moderate growth of GDP, but mainly due to exporting natural resources.
Surprisingly, low level of economic development and sharp economic decline didn’t generate
sufficient level of grievances for violent armed resistance.
The socialist policies left a relatively positive footprint in wealth distribution. In contrast to
Kenya, Tanzania performs significantly better in terms of economic equality. It was ranked 100
out of 176 (Gini index 37.8%) in 2015.
The level of corruption in the country is among the lowest in Eastern Africa. In contrast to
Kenya, Tanzania was ranked 117 out of 168 (Transparency International CPI 2015), making it to
the third place out of the seven East African states. Nevertheless, corruption is prevalent in state-
run structures (Wangwe 2005).
One-party system prevented Tanzania from radically changing the way of development.
Political elites were relatively controlled by large state apparatus and dominant party hierarchy.
There were no scandals involving country’s political elites during the Ujamaa period, and officials
were forced to be loyal to the party and hence - the state.
32
The political landscape has changed after 1992 constitutional amendments, which opened up
Tanzania for contestable elections. However, the country is still dominant by one party – Chama
Cha Mapinduzi (CCM). The party has 75% of seats in the parliament, allowing it to effectively
control decision-making in the country, enhancing overall governmental strength.
Perception of power vacuum in the country is derived from Afrobarometer:
“Over the past year, how often, if ever, have you or anyone in your family: felt unsafe walking
in your neighborhood?”
Never: 77.7%; (14) Several times: 11.1%; (2) Always 0%; (0)
Just one or twice: 11.1%; (2) Many times: 0%; (0) Total: 18
“In your opinion, how often, in this country: Are people treated unequally under the law?”
Never: 21%; (4) Often: 47.3%; (9) Don’t know: 0%. (0)
Rarely: 31.5%; (6) Always: 0%; (0) Total: 19
"How much do you trust each of the following, or haven’t you heard enough about them to
say? Your Local Government Council"
Not at all: 31.5%; (6) Somewhat: 31.5%; (6) Don’t know: 0%. (0)
Just a little: 10.5%; (2) A lot: 26.3%; (5) Total: 19
or haven’t you heard enough to say? Managing the economy"
or haven’t you heard enough to say? Improving the living standards of the poor"
Very badly: 55.5%; (10) Fairly well: 11.1%; (2) Don’t know: 0%. (0)
Apart from general data on the status of these mechanisms in Tanzania, the local peace
coordinator gave approximate estimates of the percentage of usage of CCRs by Tanzanian Kuria.
He emphasized that the usage in Tanzania is higher and more intense. Approximately 70% of cases
observed were submitted to Ebharaza at first place (Chacha, interviewed 12-04-2016). The main
reason behind high extent of usage is reportedly respect for recognition of CCR decisions by low-
level state courts.
33
Quantitative data shows following:
"Here is a list of actions that people sometimes take as citizens. For each of these, please tell
me whether you, personally, have done any of these things during the past year. If not, would you
do this if you had the chance: Attended a community meeting?"
No, would consider: 18.7%; (3) Yes, Several times: 5.5%; (1) Don’t know: 0%. (0)
Yes, once or twice: 33.3%; (6) Yes, often: 44.4%; (8) Total: 18
34
ANALYSIS
State Weakness
The chapter presents focused and structured case comparison. It contains explanations and
interpretations of the data presented in the previous chapters. First, I start with elaborating on the
independent variable in both cases. Second, I move to an analysis of the mechanism – Power
Vacuum. After it, I finish the chapter by comparing two cases by a presence of my dependent
variable – usage of customary conflict resolution mechanisms.
Kenya shows greater relative state weakness than Tanzania. It was ranked 21st by The Fragile
State Index, whereas Tanzania - 63rd. There are a number of possible explanations of the Kenyan
state weakness. Many researchers focused on institutional fragility and inefficient bureaucracy.
Others were seeking for an actor-centered explanation. Kenyan state fragility is not unique to the
region, and comparable to other neighboring states of Ethiopia (20) or Uganda (23). However, an
unequal development of the country, prevalent corruption, and widespread insecurity contributes
to the reputation of the country as one of the weakest (after Somalia) in the region. The modus
operandi of the borderlands and marginal areas of the country allows classifying Kenya as
mediated state 12.
In contrast to Kenya, Tanzania is the most stable country in the region. Tanzanian governmental
strength could be explained through the absence of intrastate armed conflicts. In contrast to six
other states in the region, Tanzania is the only country that avoided large-scale violence since its
independence. Religious and ethnic cleavages were successfully neutralized on early stages of the
country’s independence by sticking to the Ujamaa ideology. For instance, one of the successful
policies in this domain was Kiswahilization. As Barkan noted: “Kiswahili had the potential for
muting ethnic and tribal conflict within Tanzania” (Barkan 1994). And despite having had a
notorious regulatory economy, country is moving towards gradual liberalization. Lastly, the
Strongest state Weakest state

East Africa
Figure 4. Positions of Tanzania and Kenya on State Fragility scale (178 states in total)
country has more equal economic development than neighboring Kenya.
12
Mediated state is a state that is giving away its inherent responsibilities (e.g. policing, taxation and justice) to non-
state actors. In Kenya, these actors are frequently represented by traditional authorities.
35
Weak states are accompanied by negative tendencies in such areas as conflicts along rigid
identities; economic inequality; a level of corruption; politics and elites. Ultimately these four are
responsible for changing dynamics of the CCRs usage, fueling “power vacuum mechanism”,
fostering an increase in the level of usage of CCRs. These factors encourage usage of traditional
justice systems by undermining trust in and reliability of state-run conflict resolution mechanisms.
Negative developments, affecting FSI Value

FSI Indicators
CCRs usage Tanzania Kenya
Demographic pressures 8.8 9.0
–
Refugees & IDPs 6.4 8.3
Group grievance 5.7 9.0
Conflict along rigid identities
Security apparatus 5.5 8.4
Uneven economic development Economic inequality & 7.0 8.3
Economic decline disproportional development 6.7 7.5
State legitimacy 6.0 8.1
Public service Corruption 8.7 7.9
Human rights & Rule of law 6.0 6.5
Factionalized elites Predatory politics and elites 5.7 8.9
External intervention 7.3 8.0
–
Human flight 7.0 7.5
Table 2. FSI Indicators, Values and Negative developments in Kenya and Tanzania
Empirical data shows that Tanzania performs better than Kenya in the all mentioned areas. All
but one (public service) FSI indicators, related to the negative developments have a higher value
in Kenya than Tanzania.
There were no significant intrastate conflicts/violence since the time Tanzanian independence.
The country performs better in dealing with economic inequality. Despite the presence of
corruption in both countries, Kenya has a higher level of it, penetrating both public, government
and private sectors. Finally, weak political will, low level of consolidation of powers and predatory
politics didn’t allow the latter to gain the same or increased level of usage in the country.
Average for the FSI Sum (rank) for the FSI Relative state Predicted
indicators, affecting CCRs indicators, affecting CCRs strength CCRs usage
Tanzania 6.4 51.3 Stronger Lower
Kenya 8 64.6 Weaker Higher

Table 3. Relative state weakness in relation to CCRs usage
36
Excluding irrelevant for the CCRs indicators, such as Demographic pressures, Refugees &
IDPs, External intervention and Human flight, generally approved inferior relative state strength
of Kenya. Latter’s average is 8 and sum (rank) is 51,3 whereas Tanzania received 6.4 average and
sum (rank) of 51,3 making the country stronger both using twelve indicators and using indicators
specifically affecting CCRs usage. According to the hypothesis, Kenya is expected to have a higher
extent of usage of CCRs due to higher than Tanzania extent of state weakness.
Summing up, two countries are close to one another on the global, overall State Fragility scale
2015 (Figure 4). Nevertheless, two countries represent two different economic, political and social
dynamics and stand as relatively extreme cases in regional terms. Differences in the state strength
could be explained by the U-shaped relationship between regime consolidation and country’s
stability. The relationship will be explained in the research limitation section below.
State weakness, being a macro-level variable could affect micro-level CCRs through respective
local-level mechanisms. Therefore, in the chapter below I, consider my mechanism in order to
proceed with analysis on a local level. State strength, thus, will reveal itself in actual perception of
a power vacuum, which I asses in the section below.
Power vacuum
One of the possible outcomes of state weakness is limited ability of the government to establish
its presence and sovereignty over its population and territory. This factual absence of state
generates power vacuum in affected communities. I analyze data from two administrative regions
in Tanzania and Kenya that have significant Kuria population – Rorya and Migori.
On Kenyan Side, information from Migori country was analyzed since the area hosts the most
concentrated population of Kuria in Kenya. For the same reason, on Tanzanian side, responses
from Rorya district were analyzed 13.
13
The most concentrated population of Kuria in Tanzania can be found in Tarime district. However, data for the
area is not present in Afrobarometer dataset. Therefore, I consider neighboring district Rorya that has significant
Kuria population as reliable source of data as well.
37
Level power vacuum perception
34,6%
30,2%
20,5% 21,4% 21,4%

18,8% 18,7%
16,2%
Not at all Low Moderate High
Chart 1. Level of power vacuum perception in Kenya (Migori) and Tanzania (Rorya) 14
Being aware of the danger of prescribing the same “weight” of the power vacuum to each
political goal, I still combined answers to the four Afrobarometer questions on a scale from 1 to 4
as the only way to aggregate and visualize the data. On the scale, 1 stands for “Not at all” or
absence of power vacuum, and 4 is “High” level of power vacuum (Chart 1).
Derived results approved research expectations i.e. Kenyan Kuria have a higher level of power
vacuum perception, comparing to Tanzanian side. Slightly less Kenyan Kuria feel full presence of
the state (16.2% comparing to 20.5% in Tanzania). Starting from the low level of a power vacuum,
responses tend to go opposite ways. More and more Kenyan Kuria perceive state absent, whereas
the respective percentage of answers from Kuria on Tanzanian side gradually drops. Less than 1/5
of latter perceive power vacuum by highest extent when across the border 1/3 of Kuria don’t feel
a presence of the Kenyan state at all. Lastly, the percentage of people with high extent of power
vacuum perception is almost double size in Kenya, in comparison to Tanzania.
The data clearly shows that, according to the residents’ perceptions, a state is significantly more
present in Tanzanian Rorya district than in neighboring Kenyan’s Migori county. According to the
theory, it should give fewer incentives to Tanzanian Kuria to use customary conflict resolution. In
Kenya, by contrast, CCRs should be invoked more frequently and intensively in the sake of conflict
resolution.
14
Responses “Missing” and “Don’t know” haven’t been included to the analysis/chart.
38
Usage of CCRs
“The Kuria justice system - Ebharaza, is as old as Kuria traditions. It is practiced by Kuria
people, a people who extend all the way from Tanzania Rift Valley up to Kenya Rift Valley. Without
any written code of reference, surprisingly the Ebharaza’s from Tanzania to Kenya are conducted
exactly in the same manner; and with every ruling made, not only has justice been seen but also
relations have been healed and community fabric strengthened” (Chacha, interviewed 12-04-
2016).
According to the estimates of the local peace coordinator, only 40% of Kenyan Kuria submit
their claims to Ebharaza in a case of any dispute. Tanzanian Kuria, by contrast, use Ebharaza with
almost double strength. 70% of dispute cases are submitted for consideration by CCRs. It clearly
shows that:
1. Mechanism of power vacuum doesn’t’ cause expected variation in dependent variable
(Hypothesis is not supported);
2. Greater state weakness doesn’t cause lower usage of customary conflict resolution mechanisms
(Main argument is not supported);
3. There are other possible variables, responsible for reduced level of usage of CCR among the
Kenyan Kuria/increased level of usage of CCR among the Tanzanian Kuria.
Unfortunately, belonging of the peace coordinator to Kuria tribe in Kenya itself could affect the
objectivity of the data. Additionally, the extremely narrow character of the data doesn’t allow to
use conventional sources – internet-based and printed publications. Therefore, I used quantitative
data from Afrobarometer in order to triangulate the data sources. I assumed, that question of
frequency of attending community meetings (Baraza) would have been directly correlated with the
frequency of CCRs usage, since latter are performed exclusively during Baraza.
39
Level of community meetings attendance
48,9%
44,4%
33,3%
19,1% 18,7%
17,0%
12,7%
5,5%
Not at all Low Moderate High
Chart 2. Level of community meetings (Baraza) in Kenya (Migori) and Tanzania (Rorya) 15
Results from the combined chart above, show interesting differences:

According to the data, one-fifth of the population (both in Kenya and Tanzania) is not attending
community meetings at all. It indicates that there are low levels of social atomization (More than
50% are attending community meetings) in both societies i.e. strong communal tradition. Low
level of social atomization is on of the crucial preconditions for usage of CCRs. This finding, in
turn, supports data received from the local peace coordinator – in both countries, significant shares
of Kuria still use customary conflict resolution mechanisms.
About third of Tanzanian Kuria showed low levels of attendance, whereas Kenyan Kuria are
on the level of 12.7%. In Kenyan Migori county, almost half (48.9%) of respondents indicated a
moderate level of community meetings attendance (i.e. attending sometimes). Whereas in
Tanzania, a number of people in the same category is dramatically lower (only 5.5%). However,
the data shows that in Tanzania, a significant share of population – 44,5% - are attending “Baraza”
with highest possible rate – “Often”. By contrast, in Kenya, the same category has three times less
amount composing only 17% of total responses.
The crucial observation here is that Tanzanian Kuria are extremely polarized as to the rate of
attendance. Respondents literally either barely attend community meetings or attend very often,
without a significant share of those “in between”. It gives me ground to hypothesize that Tanzanian
15
Responses “Missing” and “Don’t know” haven’t been included to the analysis/chart.
40
Kuria have a higher extent of “conscious participation” – i.e. share of people that participate on a
systematic basis.
Kenyan Kuria in turn, are less systematic in attendance of baraza. The quantitative prevalence
of the moderate level and low percentage of systematic attendance (17%) shall indicate that Kuria
in Migori will use baraza’s conflict resolution mechanism less than those across the border.
Participation in baraza on systematic, coherent basis is a signal of high trust and respect to the
meeting itself. Those, who participate on the systematic basis in discussions about conflicts of the
other members of the community are the ones more likely to submit their cases for Ebharaza. It
will have a positive impact on the extent of CCR usage among Tanzanian Kuria.
The share of people who participate in community meetings with higher extent according to
Afrobarometer is 61,8% for Tanzania and 38,2% for Kenya. Systematic attendance is significantly
higher in Tanzania than Kenya. The numbers from Afrobarometer generally resemble data from
the local peace coordinator and are shown combined in the Chart 3.
Estimates of the local peace coordinator are almost identical to Afrobarometer data when it
comes to usage of CCRs in Kenyan Kuria. However, when it comes to assessing Tanzanian Kuria
and their level of CCRs usage, estimates of the interviewee are slightly exaggerated (by 8,2%)
comparing to Afrobarometer and could be considered as interviewee bias.
On the other hand, estimates of the local peace coordinator and Afrobarometer both show the
same pattern – Kenyan Kuria use CCRs with at least 2/3 frequency from extent Tanzania Kuria
use them. Despite the fact that state weakness is significantly higher and a power vacuum is more
perceptible in Kenya, Kuria in the country don’t rely on CCRs as much as those across the border.
Estimates of the level of CCRs usage

by the two data sources
70,0%
61,8%
40,0% 38,2%
Interview Data Afrobarometer Data
Kenya Tanzania
Chart 3. Comparison between the two data sources (Interview and Afrobarometer)
41
Hypothesis
Case Kenya Tanzania
IV value Weak state (1) Not weak state (0)
Predicted outcome High level of CCR usage (1) Low level of CCR usage (0)
DV value (Actual outcome) Low level of CCR usage (0) High level of CCR usage (1)
Hypothesis supported? No
Table 5. Hypothesis and findings
As it can be seen from the Table 5 and 6, Hypothesis is not supported by empirical data. State
weakness doesn’t increase usage of CCRs via a mechanism of Power Vacuum. The mechanism
analyzed displays an exciting dynamic happening in a weak state: Factual malperformance of state
services (e.g. justice delivering), causing the state to be either idle or apply tactics of mediated
state discussed above. Local communities, seeking for justice, turn to local traditional leadership
approved by the state or not.
On the one hand, Kenya, being a relatively weaker state, experiences a stronger power vacuum
perception in analyzed communities in Migori county. On the other hand, Tanzanian Kuria in
Rorya district, by lesser extent perceive power vacuum.
In contrast to expected outcome for the dependent variable, the extent of usage of CCRs by
Kuria is significantly (by a third) bigger in Tanzania than in Kenya. It shows that in the selected
cases it’s a stronger state, where customary conflict resolution mechanisms are used more.
However, the relationship might not be linear and further studies might require quantitative
approach in order to investigate deeper type and strength of the correlation.
Theory-wise, the analysis revealed surprising findings. State weakness has no positive
correlation with CCRs usage via the mechanism of a power vacuum. Data shows that state
weakness definitely generates an increase in perception of a power vacuum on the ground. The
latter, however, doesn’t cause expected (higher than in Tanzania) extent of CCRs usage in the
Kenyan Kuria.
In practical terms, the analysis provides vital policy implications for the Eastern African and
broader – Sub-Saharan countries, namely:
• Power vacuum, as a push factor, is not enough by itself to generate increased usage of CCRs;
• There are possibly other variables (such as state of customary law, civic/participation culture,
social capital, and others) that cause variation in the dependent variable.
42
Additional, but not the less important observation is that if the mechanism of power vacuum is
considered absent in relative terms in Tanzania (as in the research design), stated hypothesis is
rejected. However, if the mechanism is considered present in absolute terms in Tanzania – it’s
impossible to estimate what strength each mechanism has on the dependent variable. For the
purpose of minimizing researcher’s bias, I will leave the judgment on relative/absolute terms of
the mechanism to the reader.
Lastly, it’s absolutely possible that other intervening variables could cause observed results. In
the section below, I attempt to elaborate on what are possible alternative explanations. I also
mention weak sides of the thesis that became visible after conduction of the research.
Limitations of the research
First, Initial research design sought to analyze two tribes living both in Tanzania and Kenya.
Along with Kuria, Maasai tribe was chosen for the research. The inclusion of the variation is very
important since there is a big difference between the two tribes. Firstly, Maasai are pastoralists,
whereas Kuria are agriculturalists. Two tribes belong two different ethnolinguistic groups: Kuria
are Bantu, and Maasai are Nilotes. Kuria are relatively more progressive and flexible in deviating
from the tradition than Maasai, whereas latter are more conservative and traditionalist.
Unfortunately, low availability of data and high dependency of the research on private
information (interviews, non-recorded knowledge) impeded initial (broader) research design. The
inclusion of the second tribe could have added explanatory power and heuristic potential to the
research by analyzing differences in cultural groups, principles and traditions of CCR, ways of
living, and many more. Therefore, consequent studies on the subject could be significantly
improved by including horizontal comparison i.e. variations in CCRs between two tribes.
Second, it’s can be argued that there is not enough of variation in my independent variable.
Unfortunately, spatial controls (specific tribe and region) for the dependent variable limited
possible countries for analysis to the Great Lakes region of East Africa. Further research should
possibly seek for a wider variation in IV (investigating cases of Canada and Somalia) and control
for more variables for the IV.
Lastly, my theory uses top-down logic, based on two different levels – macro and micro. It
could be considered as possible limitation of covariation of macro(IV)-micro(DV) causal story.
With the assumption that micro-level DV (CCRs Usage) is stronger affected by micro level
variables, one can argue that for greater precision of the research design causal story should operate
on the same level, both in IV and DV.
43
Alternative explanations
The research didn’t approve my main argument and the hypothesis the argument was based on.
Therefore, it gives large space for alternative explanations. Number of rival hypotheses is nearly
unlimited, but I mention the ones, in my opinion, having highest explanatory potential below:
First, variation in the independent variable
could be assessed in different dimensions. Using
Strength of a state
some of them can prospectively increase validity
and reliability of the research. For example, using
the «U-shaped relationship» between the extent
of a regime consolidation (X) and strength of a
state (Y), one can assess CCRs usage through the
Democracy Authoritarianism
lens of an extent of regime consolidation.
Figure 5. The U-shaped relationship
Interestingly enough, the picked cases could
fit well the research design above. Tanzania is considered to be more consolidated
authoritarianism, having 30 years long one-party dominance tradition from 1961 to 1991. Kenya,
in turn, is very unstable, somewhat consolidated Democracy largely avoided authoritarian
tendencies since its independence.
Second, variation in both independent and dependent variables could lie in the politico-
economic bias of the countries: Historically, Kenya took a pure capitalist path of development with
recent decentralization in 2010, whereas Tanzania preferred more socialist/communal approach
since its’ independence in 1961. Focused and structured policies of Ujamaa could have positively
affected CCRs among Tanzanian Kuria, whereas low state interest for on-the-ground presence
impeded Kenyan Kuria from using Ebharaza more frequently.
Third, as empirical data suggested, an absence of major violent conflicts could have played a
decisive role in differences in CCRs usage, creating alternative causal stories. As it was mentioned,
Kenya experienced both post-electoral violence 2007-2008, the number of large-scale terrorist
attacks by Al Shabaab and high levels of gang-related violence e.g. by Mungiki. Tanzania, by
contrast, avoided large-scale violence for more than half a century since its independence. Presence
44
or experience of violent conflict in a country, thus, could be either confounding (Figure 6) or
mediating variable (Figure 7).
State Weakness (IV) CCRs Usage (DV)
Armed conflict (CV)
Figure 6. Causal story: Armed Conflict as confounding variable (CV)
State Weakness (IV) Armed conflict (MV) CCRs Usage (DV)
Figure 7. Causal story: Armed Conflict as mediating variable (MV)
Fourth, the independent variable, per se, could be rejected as having little explanatory power,
in case one applies “paradigm of traditionalism”. This paradigm implies that state structure by
itself is a hostile and unnatural environment for customary conflict resolution. Latter were created
by different socio-political organization i.e. tribe/chiefdom. The modern nation-state, with
industrialization, urbanization and subsequent alienation of its citizens destroys classical
communal ties. Customary conflict resolution, in turn, becomes an anachronism, and state it
operates within – hostile, unnatural entity, which barely affects internal development and
tendencies within CCRs. Therefore, factors, affecting CCRs usage the most should lie in classical
bodies, related to the practice – traditional leadership, status of elders, a social capital of and extent
of “modernization” of a community under analysis.
Lastly, variation in the dependent variable could lie in slight differences in the socio-economic
organization of the two groups. There are some debatable claims that Kuria in Tanzania are leaning
more towards pastoralism whereas Kenyan Kuria – to agriculture. Therefore, related conflicts
arising in these communities could have slightly different intensity and characteristics. Simply put,
pastoralists have more conflicts based on grazing lands, whereas agriculturalists’ disputes focused
around boundaries. Moreover, the larger number of pastoral communities – the more conflicts
arise between farmers and pastoralists as well, which could explain the larger usage of CCRs by
Tanzanian Kuria.
Summing up, the research design paid main attention to the dependent variable. By doing so,
the thesis focused on the micro level of analysis. Among the others, further studies should answer
the questions of how exactly state affects CCRs, what policies harm/strengthen the practices and
what affects customary conflict resolution the most.
45
CONCLUSION
For a long time, a power vacuum, as mechanism stimulating an increase in CCR usage, was
taken for granted by scholars. Major authors working in the field agreed on direct influence of the
mechanism, stating principle of “the weaker the state – the higher CCRs usage”. However, there
were some rare exceptions such as Pierre Englebert, who argued seemingly opposite thing – “It’s
strong states’ privilege to sanction CCRs, increasing their usage”.
Therefore, this research attempted to contribute to the debate by examining how state weakness
is related to usage of CCR mechanisms by communities. Following the wider array of authors, my
main argument was at odds with Englebert’s (1997) claims. I argued that his theory won’t hold
true in the case of Tanzania and Kenya and his suggestion might just be an exception that proves
the rule.
However, after analyzing empirical data, I derived unexpected results. Pierre Englebert’s claims
hold true, whereas commonly accepted mechanism of power vacuum doesn’t cause expected
variation in the dependent variable. Three conclusions could be derived from the fact:
• First, Power vacuum mechanism doesn’t cause expected outcomes in CCRs usage in Kuria tribe
residing in Kenya and Tanzania. This triggers both questioning of the methodology of the
research and problematizing of theoretical assumptions of a number of previous studies on the
subject.
• Third, the outcomes revitalize Englebert’s idea about state strength as a crucial element for
customary conflict resolution empowerment and subsequently, usage.
Policy implications of this are subjected to the government’s perception of CCRs and could be
interpreted both in favor (High CCRs usage  Strong state) and against it (high CCRs usage can
only be achieved when the state is strong enough). In order to establish credible policy implication,
further research on the subject should examine reversed causality i.e. state weakness as the
dependent variable.
How do CCRs affect state strength? Could it be that other factors have stronger
causality/contribution to more successful nation-building in East African and Sub-Saharan
contexts? Further studies should answer these questions, profound for decision and policy-making.
Apart from policy domain, the thesis contributes to the fields of Social and Political science by
questioning established an understanding of how state weakness affects usage of customary
conflict resolution mechanisms. Current work is also revitalizing Englebert’s observations and
findings, rising profound question whether state per se plays a significant role in fluctuations of
CCR usage.
46
This research opens deeper theoretical discussion on what is relational strength between
possible explanatory variables i.e. what affects CCRs usage more/less? Is it actor, institution or
meso-centered or maybe other parallel mechanisms that we might be unaware of? How are
resilient customary conflict resolution practices to external influences by actors, institutions, and
contexts? What facets of customary conflict resolution contribute to its flexibility within rigid
nation-state model? These and other questions should be considered and addressed in further
studies if we want to truly understand the nature, capabilities, and drawbacks of Customary
Conflict Resolution.
47
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APPENDIX
Interviewee: George Chacha Musa Mwita - Rotary Peace Fellow, Peace and Conflict
Consultant and elder of Mabera, Migori County, Kenya.
Interview questions:
• Are there big differences between Kenyan and Tanzanian Kuria socially and economically? If
so, what these differences mainly are?
• Are Kenyan Kuria mainly agriculturalists and Tanzanian – pastoralists?
• How other tribes perceive Kuria in Tanzania and Kenya?
• How do the states treat Kuria? Is it different treatment in Tanzania and Kenya?
• Has the practice of conflict resolution in Kuria been always called Ebharaza? Has it been
changing from precolonial times, during the British and after independence? Was it the same
practice without significant changes?
• Do Maasai use practices similar to Ebharaza? If so, how state treats Ebharaza practices of
Kuria and Maasai?
• Is there difference in how much different Kuria communities in Kenya use Ebharaza for
resolving conflicts?
• If there is difference, what do you think affect usage of Ebharaza for resolve conflicts?
• Are there significant differences between Kenyan and Tanzanian Ebharaza?
• Do Kuria in Kenya use Ebharaza more/less than Tanzanian Kuria?
• How big is share of cases brought to Ebharaza in Kenyan Kuria and Tanzania?
55

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UPPSALA UNIVERSITY

Department of Peace and Conflict Research

ROLE OF STATE WEAKNESS IN

ADR(s) – Alternative Dispute Resolution (mechanisms)

Customary/traditional/indigenous conflict resolution mechanisms attracted scholars’ attention

Conceptualizing State Weakness

Strong Weak Failing Failed Collapsed State

Figure 1. State weakness continuum

Figure 2. CCR triad

National Weak State (IV)

Figure 3. Causal diagram

Image 1. Approximate area, where Kuria (Black) compose majority

Indicators and methods

National (macro-level) background

Local (micro-level) background

Strongest state Weakest state

Negative developments, affecting FSI Value

Kenya 8 64.6 Weaker Higher

20,5% 21,4% 21,4%

Not at all Low Moderate High

Not at all Low Moderate High

Results from the combined chart above, show interesting differences:

Estimates of the level of CCRs usage

Interview Data Afrobarometer Data

Table 5. Hypothesis and findings

Limitations of the research

State Weakness (IV) CCRs Usage (DV)

Armed conflict (CV)

Figure 6. Causal story: Armed Conflict as confounding variable (CV)

State Weakness (IV) Armed conflict (MV) CCRs Usage (DV)

Figure 7. Causal story: Armed Conflict as mediating variable (MV)

1. Abebe, SG. Relevance of African Traditional Institutions of Governance. UNECA, 2007.

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