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INDIVIDUAL WORKSHOP PAPERS
Click on the links below to see the abstract and options to download the full paper.
1. Legal pluralism and rural water management:
objectives, definitions and issues
(Barbara van Koppen, Ibrahim Juma, and John Butterworth)
2. The New Institutional Economics of India's Water Policy
3. Current reforms and their implications for rural water management in Tanzania (Ibrahim H. Juma and Faustin P. Maganga)
4. Challenges of Legislating for Water Utilisation in Rural Tanzania: Drafting New Laws (Palamagamba John Kabudi)
5. Kenya's new water law: an analysis of the implications for the rural poor
6. Observations on the Intersections of Human Rights and Custom: A Livelihood Perspective on Water
(Bill Derman, Anne Hellum, and Pinnie Sithole)
7. Shona customary practices in the context of water sector reforms in Zimbabwe
(Claudious Chikozho and Jim Latham)
8. Understanding Legal Pluralism in Water Rights: Lessons from Africa and Asia
(Ruth Meinzen-Dick and Leticia Nkonya)
9. Making Water Rights Administration Work
10. Formal law and local water control in the Andean region: a field of fierce contestation (Rutgerd Boelens and Rocio Bustamante)
11. A step by step guide to scale up Community Driven Development
(Hans P. Binswanger and Tuu-Van Nguyen)
12. Water in Rural Communities
(Jacomina P. de Regt)
13. Community-based strategies for negotiating water rights
14. Managing the River Njoro Watershed, Kenya: conflicting laws, policies, and community priorities
(Francis Lelo, Wanjiku Chiuri and Mimi Jenkins)
15. Dynamics of poverty, livelihoods and property rights in the Lower Nyando Basin of Kenya
(Brent Swallow, Leah Onyango, Ruth Meinzen-Dick and Nienke Holl)
16. Hydronomics and terranomics in the Nyando basin in Western Kenya
(Leah Onyango, Brent Swallow, and Ruth Meinzen-Dick)
17. Getting access to adequate water: community organizing, women and social change in Western Kenya
(Jessica L. Roy with Ben Crow and Brent Swallow)
18. Traditional Water Governance and South Africa's "National Water Act" - Tension or Cooperation?
(Daniel Malzbender, Jaqui Goldin, Anthony Turton & Anton Earle)
19. Considerations on the composition of CMA Governing Boards to achieve representation
(Guy Pegram and Eustathia Bofilatos)
20. Engaging disadvantaged communities: lessons from the Inkomati CMA establishment process
(Aileen Jennifer Anderson)
21. Achieving Integrated Water Resource Management: the mismatch in boundaries between water resources management and water supply
(Sharon Pollard and Derick du Toit)
22. Economic-legal ideology and water management in Zimbabwe: Implications for smallholder agriculture
(Emmanuel Manzungu and Rose Machiridza)
23. Water rights and rules, and management in spate irrigation systems
(Abraham Mehari, Frank van Steenbergen and Bart Schultz)
24. Irrigation reform in Malawi: exploring critical land-water intersections
(Anne Ferguson and Wapulumuka Mulwafu)
25. A framework to integrate formal and informal water rights in river basin management
(Bruce Lankford and Willie Mwaruvanda)
26. Driving forces behind African transboundary water law: internal, external, and implications
(Jonathan Lautze, Mark Giordano, and Maelis Borghese)
27. The Role of the District Assemblies in the management of trans-district water resources in Ghana
28. Integrated water resource management in Tanzania: interface between informal and formal water institutions
(Charles Sokile, Willy Mwaruvanda, and Barbara van Koppen)
29. Indigenous Systems of Conflict Resolution in Oromia, Ethiopia
(Desalegn Chemeda Edossa, Mukand Singh Babel, Ashim Das Gupta and Seleshi Bekele Awulache)
30. Translation of Water Rights and Water Management in Zambia
(Paxina Chileshe, Julie Trottier and Leanne Wilson)
31. Access to and monopoly over wetlands in Malawi
32. The interface between customary and statutory water rights - a statutory perspective
33. The dynamic relationship between property rights, water resource management and poverty in the Lake Victoria Basin
(Victor Orindi and Chris Huggins)
ABSTRACTS AND FULL PAPERS
Legal pluralism and rural water management: objections, definitions and issues perspective (Barbara van Koppen, Ibrahim Juma, and John Butterworth)
This paper aims to present objectives of the workshop and review key definitions and issues based upon a rapid overview of all the submitted papers.
Paper to be completed - see PDF summary of presentation 152 kB
The New Institutional Economics of India's Water Policy (Tushaar Shah)
Much institutional analysis in the water sector at national as well as global levels has focused principally on the working of law, policy and administration of water sector-the three pillars of water institutions. In New Institutional Economics, these constitute the IE (IE) of the water economy, which is distinguished from institutional arrangements (IA). The latter are humanly imposed 'rules in use' that govern the behavior of water users and producers, and dealings between them. Water User Associations, pump irrigation markets, fishery co-operatives and contractors, urban tanker water markets are examples of institutional arrangements (IA). NIE's central concern about 'why economies fail to undertake appropriate activities if they had a high pay-off' is of great interest to actors in the IE -governments, NGOs, donors, policy makers, legislators, local administrators. These therefore have views about and keen interest in shaping IA to improve the working of the water economy. In this paper, we explore issues involved in unleashing performance-enhancing change in IA's.
Full paper PDF 427 kB and MS-Word 506 kB
Current reforms and their implications for rural water management
in Tanzania (Ibrahim H. Juma and Faustin P. Maganga)
Tanzania is at an advanced stage of drafting a new legal framework for water resources management, aimed at attaining the objectives of the National Water Policy of 2002. Three separate pieces of legislation will result from the proposed legal framework to cover water resources management, rural water supply and urban water supply and sewerage. This paper discusses the government's efforts in trying to fix property regimes and formalizing informal arrangements related to the use of water resources. The paper traces historically the process of formalising customary laws; then presents four case studies that display interactions between traditional water management systems and the modern, formal systems. The paper also contains a discussion of the proposed policy and legal changes, focusing on the extent to which the proposed legislative dispensation will protect the existing traditional or customary water rights. It is argued that, despite the early initiatives at providing space for the growth of customary law, the legal system pertaining in Tanzania today is tilted more in favour of formal than informal systems.
Full paper PDF 205 kB and MS-Word 118 kB
Challenges of Legislating for Water Utilisation in Rural Tanzania:
Drafting New Laws (Palamagamba John Kabudi)
Mainland Tanzania is in a process of preparing new pieces of legislation that will govern and regulate the water sector. The drafting of the new laws is in line with the implementation of the National Water Policy (NAWAPO) which among other things calls for review of the existing institutional and legal framework and propose legislative instruments according to the policy directives. The on-going exercise has posed several challenges in relation to the process of drafting the laws as well as the scope and content of the proposed laws. For the first time in the history of legislating for water supply in Tanzania the issue of rural water supply has received a special attention both in the Policy and in the legislation proposals. However, despite that encouraging development there are still issues that need to be clarified on the governance and utilisation of water by rural population. How eventually the issues of rural will be adequately addressed will depend very much on the active participation of the rural population and other concerned stakeholders in the on-going process.
Full paper PDF 183 kB and MS-Word 98 kB
Kenya's new water law: an analysis of the implications for the rural
poor (Albert Mumma)
This paper analyses the implications of Kenya's Water Act 2002 for the rural poor in the management of water resources and delivery of water services. The paper is premised on the belief that pluralistic legal frameworks are necessary for the effective management of water resources and delivery of water services to this group. The paper argues that, to the extent that the Water Act 2002 depends on state based legal frameworks, its effectiveness in meeting the needs of the rural poor will be limited, particularly given the limitations of technical and financial resources facing the Kenyan state. Consequently, it is necessary that a conscious policy of pursuing use of the limited opportunities the law presents be adopted in order to maximize the law's potential in meeting the needs of the rural poor.
Full paper PDF 209 kB and MS-Word 566 kB
Observations on the Intersections of Human Rights and Custom: A
Livelihood Perspective on Water (Bill Derman,
Anne Hellum, and Pinnie Sithole)
Water reform involves changing how a nations waters are managed and understood. Zimbabwes water reforms were conducted principally with the four Dublin principles in mind rather than the human rights frameworks also available. We have found that a common feature of customary norms and practices as observed in a wide range of contemporary studies of natural resource management in Zimbabwes rural areas and international human law is the emphasis on resources that are vital for livelihood, such as food and water. We have found principles underlying access to water and land and have been surprised at the strength of normative frameworks despite a literature which emphasizes contestation and overlapping spheres of authority. In turn, this has led us to examine if and how these normative local frameworks are consonant with some principles of the right to livelihood and right to water now embodied in a range of international instruments. This paper connects researchers' observations on the practice of a right to water in rural Zimbabwe with how that right could be considered within the broader context of a right to livelihood.
Full paper PDF 219 kB and MS-Word 159 kB
Shona customary practices in the context of water sector reforms
in Zimbabwe (Claudious Chikozho and Jim
Zimbabwe has implemented a water sector reform programme aimed at decentralizing water resources management to the user level. The Water Act of 1998 led to the establishment of new management institutions. Although the act does not make any reference to customary law, traditional informal practices still prevail among rural communities. Case studies illustrate that the new water legislation lacks relevance for rural communities, who rely on their indigenous institutions for the management of natural resources. These customary practices are well understood by the people, they have congruence with their worldviews and are functional. There is a conspicuous absence of true devolution of authority in the new statutory arrangements. This means that at grass roots level, the only consistent and observable form of management is that found in local customary institutions. The paper argues that despite the influence of colonial and post-colonial regimes, traditional institutions remain relevant to local communities.
Full paper PDF 341 kB and MS-Word 7490 kB (Warning! big file)
Understanding Legal Pluralism in Water Rights: Lessons from Africa and Asia (Ruth Meinzen-Dick and Leticia Nkonya)
Water rights, like the underlying resource itself, are fluid and changing; they necessarily connect people; and they can derive from many sources. As water rights are now receiving increasing attention from scholars and policymakers in developing countries, it is useful to examine the differences and similarities between land and water rights-as well as the linkages between the two. Without an understanding of the range and complexity of existing institutions that shape water use, efforts to improve water allocations may be ineffective or even have the opposite effects from those intended. Reforms need to carefully consider the range of options available. This paper reviews the multiple sources and types of water rights, the links between land and water rights, using examples from Africa and Asia. It then examines the implications for conflict and for water rights reform processes.
Full paper PDF 197 kB and MS-Word 163 kB
Making Water Rights Administration Work (Héctor Garduño)
This paper distills guidelines from experiences in Argentina (Mendoza Province), Chile, Mexico, South Africa, Sri Lanka, Uganda and Uruguay in designing and implementing their respective formal water rights administration systems, grouped in guidelines for setting up an enabling environment for implementation, for drafting "implementable" water legislation; for the implementation itself, and for making a water rights administration system a true water resources management tool. The last set refers to the most important challenge, namely "doing the right thing, not just the thing right". It also proposes a dynamic approach to water resources policy, law and regulations drafting, namely the "parallel track approach". Informal/customary systems of water rights are not specifically addressed in the seven case studies summarized herein; assuming - perhaps naively - that in most cases customary practices may be taken into account through stakeholder participation within the fold of formal water resource legislation. Therefore, a fifth set, namely guidelines for addressing plural legislative frameworks through stakeholder participation is also offered.
Full paper PDF 347 kB and MS-Word 421 kB
Formal law and local water control in the Andean region: a field
of fierce contestation (Rutgerd Boelens and
Water access and control rights of peasant and indigenous communities in the Andean countries are under continuous attack. Apart from historical processes of rights encroachment by elites and landlords, currently powerful water actors intervene within communities and territories while often neglecting agreements on local water rights and management rules. Vertical state law and intervention practices, as well as new privatization policies, tend to intensify the problem and generally ignore, discriminate or undermine local normative frameworks. Recognition of and security for the diverse and dynamic local rights and management frameworks is crucial not just for improving rural livelihoods but also for national food security in the Andean countries. The paper outlines the efforts of the action-research, exchange and advocacy program WALIR (Water Law and Indigenous Rights) to address these issues. The water policy and legal context in the Andean region, and some of the key conceptual challenges related to the official recognition of local socio-legal repertoires are briefly discussed. It ends with a reflection on conditions for improving rights recognition of marginalized groups and peasant and indigenous communities, through policy and interactive intervention strategies.
Full paper PDF 225 kB and MS-Word 162 kB
A step by step guide to scale up Community Driven Development (Hans P. Binswanger and Tuu-Van Nguyen)
This paper synthesizes the experiences on how to scale up Community Driven Development (CDD) programs into national CDD programs. The objective of the paper is to assist the reader by providing a step-by-step approach to designing and planning the scale-up of multi-sectoral CDD initiatives. It focuses in particular on the program development phase, in which a program is scaled up to first cover one (or a few) district in its entirety, so that all villages and urban neighborhoods (i.e., all "communities") have access to the program.
Full paper PDF 309 kB and MS-Word 267 kB
Water in Rural Communities (Jacomina P. de Regt)
This note focuses on how the community driven development approach is applied to this problem of getting water to rural communities. A recent review of World Bank water supply projects by OED shows that local community involvement in decision-making about services and in implementing and managing those services is linked to greater beneficiary satisfaction with services, and thus a greater willingness to pay. The Bank's experience with watershed management has similar findings. Significant involvement by local stakeholders correlates with better replicability and sustainability in outcomes and impacts. A lesser degree of participation is associated with a lower likelihood of sustainability.
Full paper PDF 278 kB and MS-Word 145 kB
Community-based strategies for negotiating water rights (Bryan
As access to water is threatened, communities may act to secure their rights to water. Critiques of community-based natural resources management and institutional design principles for common-property resources management highlight limitations on external modification of local institutions. A user-oriented perspective on water governance suggests that collective action as principals negotiating water rights may be primarily defensive, constructed of heterogeneous coalitions, strategically mixing claims and forums, and only partially susceptible to cascading institutional transformation. Measures to support community-based negotiation of water rights include legislative reform, legal empowerment, networking, advocacy, participatory planning, technical advice, and facilitation.
Full paper PDF 223 kB and MS-Word 154 kB
Managing the River Njoro Watershed, Kenya: conflicting laws, policies,
and community priorities (Francis Lelo, Wanjiku
Chiuri and Mimi Jenkins)
This paper reports on an experimental process underway in the River Njoro Watershed in Kenya to engage riparian communities, other local stakeholders, and government policy-makers in a dialogue to develop a riparian management plan. The process is part of the Sustainable Management of Watersheds Project (SUMAWA-CRSP), a multidisciplinary applied research effort established in 2002. The River Njoro's riparian zone is a common pool resource that supports critical downstream watershed services and provides valued resources to its poorer communities. However, its survival is threatened by the incompatibility between communal regulatory mechanisms, tribal norms and mechanisms of statutory enforcement, and between national laws and institutional arrangements in Kenya. The ensuing free access lawless mentality has lead to resource degradation and subsequent decline in riparian services such as water quality and flood protection. A contributing cause is the absence of any institutional structure to harmonize conflicting government laws and policies on land, water, and forest resources on the ground.
Full paper PDF 543 kB and MS-Word 3780 kB (Warning! Big file)
Dynamics of poverty, livelihoods and property rights in the Lower
Nyando Basin of Kenya (Brent Swallow, Leah
Onyango, Ruth Meinzen-Dick and Nienke Holl)
Data from 14 villages representing contrasting circumstances around the Lower Nyando basin in Kenya indicate that the incidence of poverty is higher in the flood plain than in the other parts of the basin. Over the last ten years, poverty has risen significantly in an area controlled by the National Irrigation Board (NIB), increased slowly in smallholder mixed farming areas, and remained relatively stable in areas supported by the Provincial Irrigation Unit (PIU). Reasons for these trends are discussed, and are linked to factors including land tenure and forms of external support. Customary gender biases against women are also exacerbated in the irrigation schemes. As it plans a revitalization of the irrigation sector under the new Water Act of 2002, the government should consider organizational arrangements that will provide women and men farmers with suitable services without compromising their discretion over land and water use.
Full paper PDF 1040 kB and MS-Word 1890 kB
Hydronomics and terranomics in the Nyando basin in Western Kenya
(Leah Onyango, Brent Swallow, and Ruth Meinzen-Dick)
This paper uses the concepts of hydronomics as systems of rules that define water management and terranomics as systems of rules that define land management and explores their linkages in rainfed agriculture and irrigation areas in the Nyando basin. The upper reaches of the basin have experienced a change from large scale commercial farming to more intensive small holder farming while in the flood prone lower reaches of the basin several irrigation schemes have been set up. The basin has a complex history of settlement, irrigation development and land tenure over the last 50 years, resulting in distinct patterns of poverty, land use, water management and land tenure across the basin. The changes in management of land have a corresponding effect on access to and use of water in the basin but there are no corresponding policy changes to ensure that no one is loosing out.
Full paper PDF 781 kB and MS-Word 5070 kB (WARNING! big file)
Getting access to adequate water: community organizing, women and
social change in Western Kenya (Jessica L. Roy
with Ben Crow and Brent Swallow)
This paper presents initial findings from research exploring the influence of community organizing and gender relations on access to water in Western Kenya. Improved access to water promises significant progress in the lives of many of Africa's rural and urban poor, but few rural communities in Africa have been able to self-organize to significantly improve their access to water. This research seeks to illuminate the social conditions, rights and practices that may hinder or facilitate community organization to achieve better access to water. Two particularly intriguing findings emerge: 1) amongst a wide range of social conditions that hinder the founding of water projects is a hint of male anxiety about how women may use time saved from water collection, and 2) in one community where the obstacles to organizing were overcome, and a successful piped water system installed women, were able to use their time saved from water collection to enhance household tea production and establish a group that has generated new income from casual labour and the production and sale of new crops.
Full paper PDF 192 kB and MS-Word 122 kB
Traditional Water Governance and South Africa's "National Water
Act" - Tension or Cooperation? (Daniel
Malzbender, Jaqui Goldin, Anthony Turton & Anton Earle)
In its first part this paper discusses the rationale for the recognition of traditional water management structures in the light of the realities of water management and supply in South Africa's rural areas. Based on the findings of two case studies it is argued that customary arrangements form part of the social adaptive capacity of communities and can aid integrated water resource management. In the second part, the relationship between traditional water governance structures and South Africa's new National Water Act is explored and the case is made that South Africa's law and policy framework supports the recognition of traditional water governance structures as part of the overall water management strategy. Based on these arguments, in its final part, the paper debates the role for traditional leadership in water management in the cross-over zone between traditional rural customs and the new democratic governance and service delivery structures in South Africa.
Full paper PDF 200 kB and MS-Word 167 kB
Considerations on the composition of CMA Governing Boards to achieve
representation (Guy Pegram and Eustathia Bofilatos)
South Africa is embarking on a process of progressively establishing 19 catchment management agencies with the purpose of decentralising water resources management and involving local communities. There is a legislatively required process leading to the appointment of the CMA Governing Board, involving a recommendation on the composition of the Board by an Advisory Committee followed by nomination by identified organs of state and bodies. It is argued that this provides an appropriate mechanism to ensure adequate representation of the interests of rural, poor and marginalised communities, particularly as these groups trend to be relatively unorganised and non-cohesive at a water management area level. This hypothesis is supported by the recommendation on the Inkomati CMA Governing Board.
Full paper PDF 151 kB and MS-Word 110 kB
Engaging disadvantaged communities: lessons from the Inkomati CMA
establishment process (Aileen Jennifer Anderson)
South Africa is currently establishing 19 basin-level governing-bodies called Catchment Management Agencies. CMA's are responsible for implementing South Africa's new water management approach that aims to foster economic development and poverty eradication, while maintaining the ecological integrity of the system. The first CMA was established in the Inkomati catchment area in March 2004 and the minister, based on the recommendations of the advisory committee, will soon appoint a governing board. The Inkomati CMA was established after seven years of public participation and stakeholder negotiations. Based on an analysis of the participatory process to draft the Inkomati CMA proposal, this paper outlines specific challenges that lie ahead for the Inkomati governing board and the successful implementation of the Inkomati CMA. The paper identifies specific ways to engage disadvantaged communities in the CMA process.
Full paper PDF 158 kB and MS-Word 121 kB
Achieving Integrated Water Resource Management: the mismatch in
boundaries between water resources management
and water supply (Sharon Pollard and Derick du Toit)
Central to the National Water Policy of South Africa and echoed in the National Water Act (Act 36 of 1998) and Water Services Act (Act 108 of 1997) is the devolution of water management and regulation to regional authorities that take the form of Water Services Authorities and Catchment Management Agencies. Our argument is that local government has a very narrow focus of responsibility within WRM - that is, a focus specifically on water supply - and that this is not planned within the WRM framework of the catchment. We suggest that in a new policy environment that talks to sustainability planning this represents a major oversight. Moreover, this situation is exacerbated by the different boundaries within which WRM and water supply operate. We illustrate this argument through examining the situation in the Sand River catchment and the Bohlabela Municipal District and highlights key issues that should be considered in charting a way forward.
Full paper PDF 260 kB and MS-Word 174 kB
Economic-legal ideology and water management in Zimbabwe: Implications
for smallholder agriculture (Emmanuel Manzungu and Rose Machiridza)
With an estimated 70% of the 11.6 million Zimbabweans living in impoverished rural areas, and dependent on smallholder agriculture for their livelihoods, it follows that improvements in this sub-sector can contribute to poverty alleviation, particularly food insecurity. This depends on appropriate water management in such a semi-arid climate, making the case for appropriate legal regimes in the water sector self-evident. The paper analyses the constraints that are being encountered in this area by drawing some lessons from the colonial era. The colonial state was more successful because it provided the complementary resources for its white hydraulic mission. The failure of the post-colonial state to deliver a black hydraulic mission can be understood in the same terms - the failure to enunciate and pursue an economic ideology that provided for the development of sustainable smallholder agriculture. One of the main reasons was that the post-colonial state did not capitalize on indigenous and water management experiences, which was ironic given that the leaders professed indigenous roots. This is reflected by the absence of these important experiences in policy discourse. This has rendered the legal reforms in the water sector somewhat cosmetic.
Full paper PDF 254 kB and MS-Word 175 kB
Water rights and rules, and management in spate irrigation systems
(Abraham Mehari, Frank van Steenbergen and Bart
Spate irrigation is a floodwater harvesting and management system. Floodwater is unpredictable in occurrence and amount. It is emitted through wadis (ephemeral streams) and diverted to fields using earthen or concrete structures. Primarily based on the research conducted in some spate irrigation systems in Eritrea, Yemen and Pakistan, this paper discusses the impact on floodwater management of several water rights and rules, and the enforcement approaches used by various local organizations. It analyses if and how the water rights and rules have been tailored in response to changes in events in time, such as increase in irrigated area and structural modernizations; and how these affected the floodwater management. It assesses why national/provincial water laws became necessary for floodwater management following the modernization. The paper concludes by outlining what water rights and rules can achieve when applied in situations they were prepared for, and how negative their consequences can be otherwise.
Full paper PDF 745 kB and MS-Word 1080 kB
Irrigation reform in Malawi: exploring critical land-water intersections
(Anne Ferguson and Wapulumuka Mulwafu)
Malawi, similar to other Southern African countries, has adopted new water, land, and irrigation policies and legislation involving promotion of decentralized management, user groups, and privatization of resources previously under customary or public tenure. We examine how the water and land policies intersect with the new irrigation policy, and are being played out in the context of two smallholder irrigation schemes in the Lake Chilwa Basin, which are being transferred to farmers' associations. This new policy setting has opened the door to contestation over rights of access to irrigation scheme plots by traditional authorities, scheme management personnel, and farmers. Rather than adopting a sector-by-sector focus, we examine how the policies are intertwined and interact with existing customary rights and practices in ways that have not been fully considered. The study demonstrates the need for a livelihoods perspective in determining who benefits and loses from these new policy directions.
Full paper PDF 195 kB and MS-Word 139 kB
A framework to integrate formal and informal water rights in river
basin management (Bruce Lankford and Willie
The paper explores a water management framework for bringing together formal water permits and informal water agreements to effect intra- and inter-sectoral water allocation. This framework is based on setting and modifying seasonally applied volumetric and proportional caps for managing irrigation abstractions and the sharing of water between users and sectors in river basins. The volumetric cap, which establishes the upper ceiling of irrigation abstractions in the wet season, relates to formal water permits and maximum intake capacities. The proportional cap, which functions in the dry season beneath the volumetric ceiling, builds on customary water negotiations and on the design and adjustment of intakes by users. The analysis is informed by conditions found in the Great Ruaha River Basin, Southern Tanzania, where rivers sequentially provide water for irrigation, a wetland, the Ruaha National Park, and for electricity generation. A working example of the framework helps explain its effect on inter-sectoral re-allocation.
Full paper PDF 249 kB and MS-Word 275 kB
Driving forces behind African transboundary water law: internal,
external, and implications (Jonathan Lautze,
Mark Giordano, and Maelis Borghese)
While it may be commonly assumed that transboundary water law is driven by water related concerns revealed in the texts of international agreements, external, textually invisible factors often influence the formation and realization of treaties as well. Using both textual and contextual analysis, this study provides an initial assessment of the drivers of international water law in Africa's post-colonial period. The authors first develop a typology of major drivers and then use that typology to examine the development and implementation of transboundary water law in four African basins: the Nile, Senegal, Niger, and Volta. The analysis reveals that, while virtually all agreements are driven by a combination of internal and external factors, external drivers have played a major role in agreement orientation and realization and in some cases are even responsible for treaty formation. Importantly, these external drivers generally reflect global paradigms that have been imported to Africa regardless of whether conditions on the continent warrant their use.
Full paper PDF 236 kB and MS-Word 184 kB
The Role of the District Assemblies in the management of trans-district
water resources in Ghana (Maxwell Opoku-Agyemang)
Ghana's legal regime for the management of water resources combines both the formal and informal customary law principles. Under the customary law, water as part of the customary land holding is vested in communities, families, as the case may be. In the formal sector the water resources are vested in the state and any use requires a permit or license from the Water Resources Commission (WRC). In considering an application for water use in Ghana the law requires a consultation of the traditional institutions in determining the grant or otherwise. This ensures the consideration of traditional concepts and norms, such as the concept of water spirits and the holy days of water bodies. These concepts are essential for the sustainable management and conservation of water resources in Ghana.
Full paper PDF 120 kB and MS-Word 89 kB
Integrated water resource management in Tanzania: interface between informal and formal water institutions (Charles Sokile, Willy Mwaruvanda, and Barbara van Koppen)
Formal and informal institutions are closely linked and greatly depend on each other. As in other countries, Tanzania recently engaged in a far-reaching formal institutional reform towards Integrated Water Resources Management. This paper focuses on the interfaces and linkages between formal and informal institutional frameworks for water management in Tanzania with a case study of the Mkoji sub catchment in the Rufiji Basin. The paper identifies four major areas of interfaces, namely; centralized and local institutions; modern water rights and customary rights; Water User Associations and informal associations of water users; and formal and informal power relations. The paper argues that although there are some positive linkages between formal and informal institutions, there are also struggles and bickering between the two. The paper highlights the complexity of institutional interfacing. Finally the paper identifies potential ways in which the ongoing reform should consider customary arrangements and provide a better framework for sound management of water.
Full paper PDF 305 kB and MS-Word 477 kB
Indigenous systems of conflict resolution in Oromia, Ethiopia
(Desalegn Chemeda Edossa, Mukand Singh Babel, Ashim
Das Gupta and Seleshi Bekele Awulache)
This paper describes the role of the Gadaa system, a uniquely democratic political and social institution of the Oromo people in Ethiopia, in the utilization of important resources such as water, as well as its contribution in conflict resolution among individuals and communities. It discusses ways to overcome the difference between customary and statutory approaches in conflict resolution. A synthesis of customary and statutory system of conflict resolution may facilitate a better understanding that will lead to improved management of resources, which are predominant variables for the socio-economic development of the country. It suggests that top-down imposition and enforcement of statutory laws that replace customary laws should be avoided. Instead, mechanisms should be sought to learn from the Lubas, elders who are knowledgeable in the Gadaa system, about the customary mechanisms of conflict resolution so as to integrate them in enacting or implementing statutory laws.
Full paper PDF 255 kB and MS-Word 277 kB
Translation of water rights and water management in Zambia (Paxina
Chileshe, Julie Trottier and Leanne Wilson)
The human right to water has been articulated in the UN Economic and Social Policy Documents. At the national level this approach is challenging to adopt especially for the least developed countries. The limited financial resources of countries like Zambia compound these challenges. Water rights in Zambia follow a common law property rights system. Common law is mostly applicable in urban centres whereas customary law is more applicable in rural areas. The dual application of the laws makes the translation of water rights at grassroot levels an interesting case to explore. Two different rural areas will be used to highlight the issues faced by the communities in managing their water resources and their perceptions of water rights. The cases also bring out the role of the state and other actors like NGOs and community based organisations in water management.
Full paper PDF 459 kB and MS-Word 182 kB
Access to and monopoly over wetlands in Malawi (Daimon Kambewa)
This paper focuses on the existing customary tenure and use rights to valuable wetland gardens and governance mechanisms. It identifies the modes of access, drawing attention to the differing roles of chiefs, families as well as households in wetland management. The study, carried out in the Lake Chilwa wetland in Malawi's Southern Region, demonstrates that access to water and land resources is closely intertwined and embedded in social ties and power relations. It contrasts the customary systems of governance and tenure with those that are likely to be put in place by the new land, water and irrigation policies and laws. A combination of qualitative methods and survey research was used to examine how the policies and development strategies are interacting with customary practices and are influencing livelihood strategies.
Full paper PDF 219 kB and MS-Word 226 kB
The interface between customary and statutory water rights - a statutory
perspective (Stefano Burchi)
In the countries where customary rules play a significant role, particularly in the rural areas, customary law and customary water rights are a factor to be reckoned with when preparing "modern" legislation regulating the abstraction and use of water resources through government permits or licences. From a statutory perspective, the two water rights systems intersect and interact in the transitional phase following enactment of new water legislation, and in the course of administering the latter's abstraction licensing regulatory provisions. The law avails mechanisms to prevent collision between the two water rights systems, and to settle disputes. The analysis of these mechanisms raises a number of issues. Further research into the functioning of these mechanisms will be welcome to shed additional light on a much neglected facet of water resources law, and to eventually strengthen non-confrontational approaches to accommodating customary water rights and practices in the new dispensation inaugurated by modern water legislation.
Full paper PDF 168 kB and MS-Word 107 kB
The dynamic relationship between property rights, water resource
management and poverty in the Lake Victoria Basin (Victor
Orindi and Chris Huggins)
This review aims to synthesize information on the dynamic relationships between property rights to land and natural resources, water resource management and poverty in the Lake Victoria Basin of East Africa. It focuses on the way in which water management systems, under the conceptual umbrella of Integrated Water Resources Management (IWRM), address customary claims to land and water. The water sector in all the three countries is being reformed, decentralized and liberalized to improve efficiency in water delivery. However, it is not clear whether this will result in improved water access for low-income areas, especially remote rural areas. There are concerns that some aspects of the water sector are being emphasized at the expense of others and this may distract attention from some of the socio-economic and political causes of poor water access. Similarly, all three countries are currently in the process of revising land policies and laws. The paper concludes that customary land and water rights remain significant forms of rights across the basin, even though they are not addressed through legal or policy frameworks.
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