1 Kenya References Mumma, Albert. Kenya‟s new water law: an analysis of the implications for the rural poor. International workshop on „African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa‟, 26-28 January 2005, Johannesburg, South Africa http://www.nri.org/waterlaw/AWLworkshop/MUMMA-A.pdf Sammy, Wambua. Water Privatization in Kenya. Global Issue Papers, No. 8: Published by the Heinrich Böll Foundation, Berlin, 2004 http://www.boell.de/downloads/global/Water%20Privatisation%20in%20Kenya.pdf Lelo, Francis K., Chiuri, Wanjiku, and Jenkins, Marion W. Managing the River Njoro watershed, Kenya: conflicting laws, policies, and community priorities. International workshop on „African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa‟, 26-28 January 2005, Johannesburg, South Africa http://www.nri.org/waterlaw/AWLworkshop/LELO-FK.pdf Swallow, Brent, Onyango, Leah, Meinzen-Dick, Ruth and Holl, Nienke. Dynamics of poverty, livelihoods and property rights in the Lower Nyando basin of Kenya. International workshop on „African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa‟, 26-28 January 2005, Gauteng, South Africa http://www.nri.org/waterlaw/AWLworkshop/SWALLOW-B.pdf Onyango, Leah, Swallow, Brent and Meinzen-Dick, Ruth. Hydronomics and terranomics in the Nyando basin of Western Kenya. International workshop on „African Water Laws: Plural Legislative Frameworks for Rural WaterManagement in Africa‟, 26-28 January 2005, Gauteng, South Africa http://www.nri.org/waterlaw/AWLworkshop/ONYANGO-L.pdf FAOLEX. Legal Office. Kenya Water Act 2002 http://faolex.fao.org/docs/pdf/ken37553-a.pdf Country information Key dates 2002, Water Act (in effect 2003) (policy, legislation 1999, National Water Policy and regulations) Performance The reform seeks to address the shortcomings of service provision in the sector arising deficiencies from: Lack of a clear institutional framework in the management and governance of the (Why is reform water services sub-sector. This situation has resulted in poor coordination of sector necessary?) institutions, lack of performance monitoring and rapidly declining investment in the sector. Inadequate attention to water resources management has resulted in negative impacts including the destruction of water catchments, pollution and illegal abstraction of water sources. In the 1980s the Government begun experiencing budgetary constraints, and it became clear that, on its own, it could not deliver water to all Kenyans by the year 2000 as was the goal. Attention therefore turned to finding ways of involving others in the provision of water services in place of the Government, a process that came to be known popularly as “handing over.” 2 Initiators, According to (Sammy, 2004), economic reforms initiated at the behest of the World initiatives and Bank and IMF since the late eighties have laid greater emphasis on government objectives divestiture from service delivery in many sectors based on a greater recognition of the role of the private sector. Water allocation No information available before reforms Water allocation General after reforms The Water Act 2002 has introduced comprehensive and, in many instances, radical, changes to the legal framework for the management of the water sector in Kenya. These reforms revolve around the following four themes: the separation of the management of water resources from the provision of water services; the separation of policy making from day to day administration and regulation; decentralization of functions to lower level state organs; and the involvement of non-government entities in the management of water resources and in the provision of water services. The Act vests ownership of all water resources in Kenya in the State. The right to use water from any water resource is vested in the Minister. The right to use water is acquired through a permit. The public may abstract or use water, from any water resource, for domestic purposes. Generally, anyone can use any water resource to which he or she has legal access. Abstraction and use permits, however, are appurtenant to the land or undertaking specified in the permit. Thus, in cases where landowners have obtained permits for water abstraction and use, the right (the permit) is linked to the ownership of land. The Water Code gives priority to water uses for domestic purposes. Permits will endure for the period specified, and they can be renewed from time to time. If permit holders have failed to make beneficial use of the water resource, the Authority may cancel or vary their permits. Administration and decentralisation The Water Act 2002 decentralizes functions to lower level public institutions. Ultimate decision making remains centralized. Since the articulation of the policy framework on economic reforms (1996-98), the government‟s emphasis has favoured increased community and private sector participation. At the same time, there has been emphasis on evolving an enabling institutional framework that vests increasing autonomy on Local Authorities in the management of water resources. The water law covers obligations for participation and empowerment of stakeholders, management at river basin scale, decentralization of management of water resources, and the separation of responsibilities for management and use of water resources. The principal governmental body at the national level is the Water Resources Management Authority (the Authority) It was established under the 2002 Water Act and is responsible for receiving and determining applications for permits for water use; and determining charges to be imposed for the use of water from any water resource in 3 accordance with guidelines in the National water Resources Management Strategy With regard to water resources management, the Act provides that the Authority may designate catchment areas, defined as areas from which rainwater flows into a watercourse. The Authority shall formulate for each catchment area “a catchment area management strategy,” which shall be consistent with the national water resources management strategy. The regulatory functions over water resources management currently performed by the district offices of the Ministry in charge of water affairs are supposed, under the new legal framework, to be transferred to the catchment area offices of the Authority. WRMA is mandated to undertake the management, protection and conservation of water resources. The organization has regional offices at catchments level for decentralized decision making and quick resolution of water resources management issues. WRMA will ensure rational and equitable allocation of water resources to reduce conflicts over access to resources. The Water Act establishes the Water Services Regulatory Board (WSRB) whose core responsibilities include licensing providers of water services and determining standards for the provision of water services to consumers. Other functions of the regulatory board are determining fees, taxes, premiums and charges to be imposed for water services including initiating prosecutions subject to consent from the Attorney General. The Regulatory Board provides general oversight for the provision and monitoring of water services including the licensing regime for water service providers. The Board will additionally develop guidelines for the fixing of tariffs and other charges to be imposed for water services in accordance with the national water services strategy. Water Services Boards These are established at the regional level and delineated on the basis of catchments, administrative boundaries and economic viability. They are responsible for efficient and economical water and sewerage services in their respective areas of jurisdiction. To support their role they will maintain and acquire assets plan, develop and manage. Water Service Boards will effect their mandate in service provision by contracting Water Service Providers (WSPs) for this purpose. They will monitor and enforce agreements with the WSPs in accordance with the license requirements. The Water Act also establishes a Water Services Trust Fund (WSTF) to support finance the provision of water services to areas lacking adequate water services through funds appropriated by Parliament. The Water Appeals Board is tasked with the responsibility of arbitrating over any disputes arising from the implementation of the Act such as disputes over proprietary rights. The Water Appeal Board when formed will be responsible for resolving and determining disputes in the Water Sector. The Water Act 2002 has continued – and even enhanced - a long standing tradition in Kenya of involving non-government entities and individuals in the management of water resources as well as in the provision of water services. At the catchment level, the Authority and Minister appoint a catchment area advisory committee. Members of the catchment advisory committee shall be chosen from 4 among, inter alia, representatives of farmers, pastoralists, the business community, non-governmental organizations as well as other competent persons. Similarly, membership on the board of the water services boards may include private persons. The Act provides a role for community groups, organized as water resources users associations, in the management of water resources. Water rights and regulation The Act imposes a permit requirement on any person wishing to acquire a right to use water from a water resource. There are however three exceptions to the permit requirement. These relate to minor uses of water resources for domestic purposes; to uses of underground water in areas not considered to face groundwater stress and therefore not declared to be groundwater conservation areas; and to uses of water drawn from artificial dams or channels, which – being artificial rather than natural - are not considered to be water resources of the country. The application for the permit is made to the Authority. The factors to be taken into account in considering an application for a permit include: • The existing lawful uses of the water; • Efficient and beneficial use of the water in the public interest; • The likely effect of the proposed water use on the water resource and on other water users; • The strategic importance of the proposed water use; • The probable duration of the activity for which the water use is required; • Any applicable catchment management strategy; and • The quality of water in the water resource which may be required for the reserve. Further guidance is given to the Authority in deciding on allocation of the water resource as follows: • That the use of water for domestic purposes shall take precedence over the use of water for any other purpose – including agricultural purposes - and, in granting a permit, the Authority may reserve such part of the quantity of water in a water resource as is required for domestic purposes; and • That the nature and degree of water use authorized by a permit shall be reasonable and beneficial in relation to others who use the same sources of supply. Permits are given for a specified period of time. Additionally, the Authority is given power to impose a charge for the use of water. The charge may comprise both an element of the cost of processing the permit application as well as a premium for the economic value of the water resources being used. Permits run with the land. It is required that a permit specify the particular portion of any land to which the permit is to be appurtenant. The permit passes with the land on transfer or other disposition. Where the land on which the water is to be used does not abut on the watercourse the permit holder must acquire an easement over the lands on which the works are to be situated. It is thus not possible, under the law, to obtain a permit in gross (i.e., which is not linked to particular land). Water transferability Permit holders can transfer their permits in two limited circumstances. First, permits are automatically transferred when the land or undertaking transfers by devise, alienation, or other transfers. Second, transfers are permitted if a change in circumstances beyond the permit holder's control has rendered the water unusable for 5 reasonable beneficial uses, and if neither the public interest nor the rights of others would be adversely affected. When both of those conditions are met, the Authority may grant the request to transfer the permit to another portion of the permit holder's land. Water charges The Authority may require a permit holder to pay a water charge as a condition of water use. Water supply The National Water Policy (1999) stated that the Government‟s role would be redefined away from direct service provision to regulatory functions: service provision would be left to municipalities, the private sector and communities. The Policy stated that the Government would hand over urban water systems to autonomous departments within local authorities and rural water supplies to communities. Through commercialisation, the Water Act requires local authorities to form autonomous water and sewerage companies with independent boards of directors to provide water services and re-invest (ring fence) water revenues in service delivery improvement. The right to provide water services is subject to licensing requirements. Section 56 states that no person shall provide water services to more than twenty households or supply more than twenty five thousand litres of water a day for domestic purposes - or more than one hundred thousand litres of water a day for any purpose - except under the authority of a licence. Unlike with respect to a permit for the use of water resources, there is no property in a water services provision licence, and, the licence shall not be capable of being sold, leased mortgaged, transferred, attached, or otherwise assigned, demised or encumbered. Performance Land and water impacts This provision about the connection between land and water reinforces the predominance of landowners with regard to the use of water resources. It is premised (social equity, on a land tenure system which prioritizes documented individual or corporate economic growth, ownership of land over communal systems of access to land and land use which do not environmentally require documented title, such as exist in most parts of rural Kenya. sustainability) Three land tenure systems exist: government land, trust land and private land. The Government as a landowner can obtain a water resources permit with respect to its land, but the Water Act, 2002 exempts state schemes from the requirement for a permit. Occupiers of trust land – who comprise largely the rural poor – would not be able to demonstrate ownership of land for purposes of an application for a water permit as required by the Water Act 2002. Land registration, granting private ownership, has been completed in those regions of the country with high agricultural potential whereas in the areas in which pastoralism is predominant communal tenure is recognized by the law. The implication of the existence of a pluralistic land tenure regime for the 6 administration and the Water Act 2002 and the management of water resources is that the sections of rural communities who have documents title to their land will be able to meet the requirements of the Water Act, 2002 for purposes of acquiring a water rights through a permit. Rural communities practicing communal land tenure systems are unlikely to be able to operate within the straight jacket of the Water Act 2002. It is likely that the latter comprise predominantly the rural poor. Kenya‟s rural poor have not been integrated into the private land tenure and other formal regimes upon which the Water Act 2002 is premised. They depend largely on land rights arising from customary practices which however have been systematically undermined over the years by the statutory provisions governing land rights and which are not recognized by the Water Act 2002. The changes in management of land have a corresponding effect on access to and use of water in the Nyango basin but there are no corresponding policy changes to ensure that no one is losing out. Until recent years, the land laws and the water laws in Kenya have, according to (Onyango et al., 2005), developed along parallel lines without making adequate provisions for the links between land rights and access to water resources. Customary water law There is no reference to customary rights in the Water Act Over time statutory laws that cut across the cultures have been set up for managing natural resources. Traditional systems of managing the resources based on customary rights operate alongside statutory laws. Overall, it seems that there is a connection between areas with a strong cash economy and the influence of statutory law. Also In the Nyango basin there are a number of different land categories. On Trusts Lands, there is free access to water. On Government Lands no one has any right to use or occupy it unless granted a lease by the government. However it is common to find unofficial users of water. Ideally the local authority should be the custodian but they rarely take up the responsibility. Both Trust Lands and Government Land cover in total only small areas. On Private Lands, public access to springs is ambivalent. According to customary law no one should be denied water. However, according to (Onyango et al., 2005), of late access to the springs is getting more restricted as people get more individualistic. In so called Settlement Schemes the river was used as a boundary and here the riparian reserve along the river fall in private land. Such areas were previously common land under customary laws. Large-scale farms are found only in the former white highlands and are operated as commercial enterprises. All large-scale farms operate strictly following the statutory laws. Also land under so called Land Buying Companies rely on statutory law and thereby the public is restricted to access water springs on such lands. As another example from the Lower Nyando basin, (Swallow et al., 2005) mention that Luo tribe custom holds that water access should be freely available. In one village, it was reported that: “Everybody has access to all community water points. No one is allowed to block the recognized community water points.” Luo custom also supports public access to private land resources for grazing, collecting firewood, and passing through. With few physical or social fences, access to water resources is relatively freely available. It appears that it is only in irrigation areas, which have had strong 7 involvement of external agencies, that the Luo customs have not held dominance. However, one of the possible drawbacks of the Luo custom for land and water governance is that there is relatively little incentive for private individuals or small groups to invest in protecting existing water sources or creating new water sources. This has, according to (Swallow et al., 2005) particular impacts on women, who are responsible for provisioning the household with water and for providing healthcare within the household. According to (Mumma, 2005), the permit system is state centric in orientation. In operation, it privatizes water rights to a small section of the community, essentially property owners who are able to acquire and use water resource permits. By the same token, it marginalizes from the formal statutory framework poor rural communities who are unable to meet the requirements for obtaining a permit, principally land ownership. Permits run with the land. It is required that a permit specify the particular portion of any land to which the permit is to be appurtenant. The permit passes with the land on transfer or other disposition. It is thus not possible, under the law, to obtain a permit in gross (i.e., which is not linked to particular land). This provision reinforces the predominance of landowners with regard to the use of water resources. It is premised on a land tenure system which prioritizes documented individual or corporate ownership of land over communal systems of access to land and land use which do not require documented title, such as exist in most parts of rural Kenya. The Act therefore marginalizes collectivities, such as poor rural community groups in the acquisition and exercise of the right to use water resources. This potentially could undermine the ability of poor rural communities in Kenya effectively to utilize water resources in economically productive activities such as irrigation and commercial livestock rearing. It is clear that Kenya‟s rural poor have not been integrated into the private land tenure and other formal regimes upon which the Water Act 2002 is premised. They depend largely on land rights arising from customary practices which however have been systematically undermined over the years by the statutory provisions governing land rights and which are not recognized by the Water Act 2002. Legal pluralism With experience from the River Njoro Watershed, (Lelo et al. 2005) comments on the impacts of legal pluralism. An analysis revealed how a free access mentality has developed in regards to the riparian zone of the River Njoro. This state of affairs can be traced in part to the lack of enforcement of long-standing riparian conservation rules and confusion arising from more recent conflicting government land, forest, and water laws and policies. As a consequence, riparian degradation along the river has increased the risks of downstream flooding and contributed to declining water quality. Emerging from the analysis is a need for an institutional structure to bring together government agencies that make and implement laws and policies on land, water, and forest resources to harmonize conflicting regulations on the ground. Whereas the law is clear about the conservation of riparian vegetation, its interpretation 8 and lack of enforcement leaves room for individuals to ignore it. The enforcement of riparian zone conservation is solely the responsibility of government agents. As these officers cannot be everywhere all the time along the river, the fate of riparian resources lies ultimately with the local communities. Farmers adjacent to the river and outsiders cut down trees and overgraze the area, as they claim the resources are free for all. They do this because they know that enforcing authorities (chiefs and government staff) are too over stretched to note what is happening or fail to follow-through with sanctions. The conflict over the use of riparian resources in River Njoro provides a microcosm of the land management crisis facing Kenya: a case of the existence of laws that are not supported by local people and their institutions; and that cannot be enforced by authorities and therefore creates legal holes and in reality a free access regime. In the absence of any recognized institutional framework for managing such a resource it is conceivable that in the long run it could lead to Garren Hardin‟s (1968) tragedy of the commons scenario. It is recommended that new institutional frameworks bring together government agencies, NGOs and other stakeholders of the riparian resources in dialogue and negotiation. The future condition of riparian resources and services will be closely linked to how well all the stakeholders can cooperate to define a coherent management structure and enforcement mechanisms that will be acceptable to all. If successful, this will ensure that future policy changes can be negotiated and endorsed by all concerned. According to (Mumma, 2005), the Water Act 2002, makes only limited provision for reliance on non-state based systems, institutions and mechanisms. More fundamentally, the new law continues the tradition of the law which it replaces of not recognizing the existence in Kenya of a pluralistic legal framework. It assumes that the legal framework in Kenya is comprised of a monolithic and uniform legal system which is essentially state centric in nature. The continued denial of the existence in Kenya of a pluralistic legal framework is, according to (Mumma, 2005), inimical to the success of the new law in meeting the needs of the rural poor, who, more than urban based Kenyans, live within a legally pluralistic environment. Kenya‟s rural poor, typically, live within normative frameworks in which state based law is no more applicable and effective than customary and traditional norms. The new water law, however, ignores, according to (Mumma, 2005) this reality. Public Through the Secretariat for Water Sector Reforms in the Ministry for Water, the Kenya involvement Water Partnership (a GWP partner) has created a forum where all stakeholders, including government, could get together, share ideas and exchange information. The forum has now formally brought together over one hundred stakeholders from the concerned Ministries and Departments, regional development authorities, national institutions, universities, NGOs, the private sector, the media, and communities and self help groups from across the country. Challenges ahead According to (Lelo et al., 2005) unfortunately, the top-down approach has been perpetuated. Decisions continue to be made in Nairobi and packaged by experts for the rural people. Rural communities see government extension officers who speak unfamiliar languages address them in quickly arranged meetings. Such meetings are intended to symbolize participation by consultation. There are several conflicting government policies and laws which are at variance with local people‟s traditions and cultural practices. The government of the day has not changed from the colonial model of centralized, top down and coercive mechanisms in 9 applying these laws, policies and regulations. This is further compounded by the lack of enforcement procedures and institutions According to (Mumma, 2005), the Water Act 2002 is based on a notion of law which is unitary and state-centred. Its design and operation are premised on the centrality (indeed monopoly) of central state organs and state systems in the management of water resources as well as in the provision of water and sewerage services.
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