Emalus Library Online Documents Collection - Customary Law

Source: http://www.earthsummit2002.org/freshwater/Zone.htm

Non-governmental Organisations Major Group - 2nd World Water Forum

Background Paper for the workshop ‘WATER AS A BASIC RIGHT’

Customary Law and

Traditional Water Management

(Case study concerning the Yatenga Province, Burkina Faso)

 

 

Seydou ZONE, Green Cross Burkina Faso

greencross.burkinafaso@fasonet.bf

 

 

WATER AND TRADITIONAL SOCIETY

Introduction

Humankind and the environment were closely linked in traditional societies. In order to have a good understanding of environmental management as a whole in the province (kingdom) of Yatenga, it is necessary to consider the governing system, traditional religion, the origins of the migrations and the history of the settlement of villages.

1 - The governing system in the Yatenga kingdom

1.1- Traditional governing in the Yatenga kingdom

 

According to the Ramsa Naba (Minister of Youth and Protector of the kingdom's fetishes), the kingdom always had its own governing system, which is applied from the top to the bottom and from the bottom to the top. Such a system resisted the colonizer's attempts at reform, thanks to the great ascendancy of the Emperor over his faithful subjects, who in return must guarantee and defend the general interest of the kingdom. Thus the ambivalent application of the governing system justifies itself as follows:

from top to bottom: decisions are taken by the Emperor and communicated to the Zack-Naba (head of the family),

from bottom to top: the communities' concerns reach the Emperor through a hierarchic way. He will then gather the Ministers' Council to decide solutions or sanctions to be applied. The Ministers' Councils gather each Friday at the royal palace in the presence of the following ministers.

 

 The Baloum, in charge of the King's protocol;

 The Toogo Naba, Minister of Communication;

The Ouidi Naba, Minister of the Education and Defense of the Princes;

The Rasam Naba, Minister of Youth and Protector of the fetishes, who is the central pillar of the system. He is considered as the second in hierarchy and is assisted by secretaries in charge of precise tasks.

 

1.2- Division of powers within the kingdom

 

Speaking about division of powers, Montesquieu emphatically said that, by force of circumstances, power stops power. In our traditional societies, the principle of division of powers has existed since time immemorial and is regulated by the custom, the supreme law. Everybody knows about the division of powers as nobody ignores the rules enacted by the custom. The principle is applied as follows:-

 

- the Naba, leader of the village, has administrative power over the subjects, at the level of the region. He is the intermediary between the Emperor of Yatenga and his people on one side, and, on the other side, he acts as an administrative relay, communicating messages and collecting the poll tax.

 

- the Tengsoaba, leader of the earth, he is the guardian of the customary law on the village land. He organizes and chairs the ritual ceremonies linked to the earth. When a death occurs, he chooses the burial place in consultation with the Council of Elders. He acts as an intermediary between the people and the deities to ask for the community's protection. In case of violation of the custom, sanctions are given to the guilty by the appropriate authorities (leader of the earth, Council of Elders) and expiatory and propitiatory sacrifices are undertaken in order to calm down the spirits

 

- The Council of Elders acts as a consultative assembly to both authorities mentioned formerly; the opinion of the Council of Elders often influences the decisions of the Naba, leader of the village, and of the Tengsoaba, leader of the Earth. The Council of Elders is composed of two "Chambers"; the women and the men.

 

2.- Water in the traditional Moagha society of the Yatenga kingdom

 

2.1- Water as a universal myth

The water-life relationship is present in the founding myths of every culture. The Flood theme is prevalent in all three monotheistic religions, but, contrary to customary belief, did not necessarily originate in, and is certainly not confined to, the Judeo-Christian-Islamic tradition. It is also found in the Hindu "vedas", in the Inca stories, in all the myths of Mesopotamia ("the Earth between two floods") and in the animism of African societies. The founding myths influenced cultural behaviors and brought the notion of water as a sacred element. The cultural dimension is certainly indispensable and helps us understand the various conflicts emerging around water and, eventually, to find pacific and fair solutions for its sharing and use.

2.2- Water and the animist religion

The traditional African societies were strongly animist before the implementation of Islam and Christianity. The animist religion is based on the natural elements, among which water. These traditional societies have their own vision of water, which differs from the western water vision (art. 5 of the customary law of Yatenga). Water is used with a religious sense by the customers in order to evoke the spirits of the dead so that they watch over the community.

2.3- Water in the peoples' settlement

The lack of water in some regions drove the people to migrate in order to settle in cities where it is abundant. These last decades witnessed an important demographic upsurge on the riverbanks. The elders say that the search for water structured the peoples' settlement in the country. In the popular tales water often played a saving role in many societies.

 

2.4- Water as salvation for the migrant

Many societies show a grateful behavior with regards to the natural elements, especially water, which granted them with a significant protection at one point in their history. The stories recalling these events are not exclusive to the traditional African societies. They are universal, as the holy scriptures or the popular tales of the oral societies testify.

Example of the Plagues of Egypt and the liberation of the Children of Israel through the crossing of the Red Sea with Moses.

The legend of Queen Abra Pokrou in the Gold Coast (now Ghana), in which water helped her to escape her enemies after her designation to take over from her late father.

 

2.5- The village names inspired from water.

 

According to SANON D. B. and TRAORE Y., 1999, the environment used to be a cultural source of inspiration in traditional societies. A toponymic approach reveals that the village names refer either to a plant-like entity, or to a watercourse, or to a particular relief existing before the people's settlement. In some societies, which consider water as a symbol of peace and life, certain villages have been given a name referring to water. The example mentioned hereafter refers to rivers or villages of western Burkina Faso, although all the communities of the country share the same vision with regards to their environment.

The "Zu" River has a mystic dimension, such as the bush or the mountain. It is considered as an expression of the world's dynamism, a strong, eventually suspicious, entity, hence the necessity for each village to make a pact with the river whose water it uses daily. The river is considered as the vital stream linking the present and past generations that lived on it. Apart from their mystic connotations, the various toponymies also convey a meaning, a projection of society and dictate particular behaviors.

 

Kofila: village of the Madeira ethnic group in the north of the capital of the Houet province (Bobo), also financial capital of Burkina Faso. This name comes from the local "Jula" dialect and is divided in two parts: "Ko", which means "river", and "Fila" which means "two". Effectively, the village is located at the confluence of two watercourses.

These names of villages, places and regions represented projects of communities. As a matter of fact, the designated name acts as a call for the defense and improvement of water as a natural element and of the conditions of life.

 

2.6- A system of water property

As an element in the democratization process that occurred during the 1990s, most African countries have established a legislative system governing various branches of industry, including water. Burkina Faso elaborated and implemented a law concerning the Land and Property Reform (R╚forme agraire et fonci╦re RAF). The 5th article of the RAF names the State as the owner of water. But, in reality, this statement remains only a simple claim, as a real juridical prerogative would not be accepted without great resistance by the customary water users. Effectively, what characterizes African water law is the existence, parallel to written laws, of a corpus of customary norms which originate largely prior to colonization. In a country where the majority of the population is illiterate, these norms tend to supplant the official written legislation in relation to the exploitation of the water resources by the local inhabitants. During our interviews, the customary leaders affirm that the State is powerless without those who know the true identity of the people. They therefore act as the intermediary between population and administration. According to various customary leaders, no serious study, with the ambition of creating acceptable juridical norms, could ignore the essential contribution of customary law.

 

2.7- Traditional water management: customary laws

In the traditional societies of Yatenga's kingdom in the northern part of Burkina Faso, environmental management is the responsibility of the leader of the earth (article 9, 10 of Yatenga's customary code), who can be assisted by the elders or any other person designed in that perspective, such as the Bouli Naba (customary leader in charge of water).

 

2.7.1- Prohibitions

 

According to the hierarchy of customary law, the prohibitions are above the totems, as they have a larger sphere of application. The prohibition represents what is not authorized by the community at the level of the village, thus what everybody forbids. Hence the following prohibitions can apply in a village and be severely sanctioned by the custom:

 

Prohibition to sell water or refuse to let it be draw from one's own well.

Prohibition to dirty the roundabouts of the well

Prohibition to dig a well without the agreement of the relevant customary leaders.

 

2.7.2- Totems

 

They have a sphere of application restricted to the large family. Thus an ancestor, walking in search of a shelter, was saved by quenching his thirst in such watercourse; he takes an oath about it, engaging his whole descent. This oath recommends that his descent watch-over the watercourse and carry-out sacrifices in order to thank the spirits of the place (according to the authors mentioned above).

 

2.8- Gender and traditional water management

 

 

In traditional societies the customary leaders were responsible for the management of water. Now the State also designates technicians in the same perspective. The distribution of the work now determines the participation, by gender, in the traditional societies of the Yatenga province. The males in the traditional societies are in charge of the construction, maintenance and management of the work. During the work, the girls and women constitute a stimulation force and organize in this perspective festivities on the building site. They praise the work accomplished, particularly of the young people who do the hardest tasks. Moreover, they play a predominant role in the domestic and horticultural uses. In the traditional societies the gender approach existed under the form of complementarity between the sexes.

 

2.9- The causes of failure of water conveyance projects

 

 

In traditional societies the approaches that do not involve the population are very likely to fail. The water management policy must take tradition into account in order to achieve a sustainable vision. The ecological NGO, Green Cross Burkina Faso, understood this when it promoted its hydraulic policy through revaluation of the traditional methods of water management. Several factors explain the causes of failure of water conveyance projects: the influence of ecological factors (advance of the desert, drought), demographic pressure (increase in water demand, contamination of water), economic and political aggression (inclusion of the economic dimension in social relationships, territorial conflicts). The mastery of local knowledge in water management, and the understanding of the sources of conflicts are necessary for the elaboration of sustainable projects and would favour a partnership between traditional and modern water management. Green Cross Burkina Faso intends to put a lot of efforts into this water vision process up to 2025.

 

Conclusion

 

As a conclusion, we will quote Doti Bruno SANON and Yacouba TRAORE: "Nowadays, we are at the junction of two worlds: a world that ends, and a world in gestation; our responsibility is to elucidate and find the seeds of a new world. In terms of water management and water culture, the challenge is not to reproduce old customs, but rather to catch their spirit in order to renew them and create new collective memories in the field of water. We are in a constructive period and we will succeed only if:

- we take our inspiration from our collective atavistic memories,

- we take into account the present exigencies,

- we take into account the exigencies of the future generations.

The culture of foundation is a matter of research, education, and provocation of a collective and individual awareness of responsibility. Traditional societies fed themselves from their environment and thus maintain a particular relationship with it; this explains their vision of the world. Water management cannot fall only within the competence of the administrative authorities or institutions, although their cooperation is necessary. The population's participation, with its local know-how, is by far the most important aspect. We must take into account their vision and knowledge, so that the implemented projects have more chance of concrete success.

Documentary sources

1. Culture et sauvegarde de lÝenvironnement Doti Bruno SANON et Yacouba TRAORE C.A.D. 1999 Bobo Dioulasso, Burkina Faso.

2. Workshop on traditional water management : civil and local know-how, held on April 2 to 7, 1995 in Ouagadougou in partnership with UNICEF, CREPA, IUCN

3. Le coutumier du Yatenga (extrait art1-art44).

4. Reforme Agraire et Fonci╦re du Burkina Faso (RAF) Loi no 14 du 23 Mai 1999.

5. Interviews with the elders and customary leaders of the Yatenga province in the course of the year 1999 and beginning of 2000.

6. Hydraulic policy of Green Cross Burkina Faso (GCBF)

 

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