15 Intersections of Law, Human Rights and Water …...rights and equity (Salman and McInerney-Lankford, 2004). It would seem that the many elements of the global system are catching

15 Intersections of Law, Human Rights and Water Management in Zimbabwe:

Implications for Rural Livelihoods

Bill Derman,1 Anne Hellum,2 Emmanuel Manzungu,3

Pinimidzai Sithole4 and Rose Machiridza51Department of Anthropology, Michigan State University, USA and Department of

International Environment and Development Studies (NORAGRIC), NorwegianUniversity of Life Sciences, Norway; e-mail: [email protected] or

[email protected]; 2Faculty of Law, University of Oslo, Oslo, Norway; e-mail: [email protected]; 3Department of Soil Science and Agricultural

Engineering, University of Zimbabwe, Harare, Zimbabwe; e-mail: [email protected]; 4Centre for Applied Social Sciences, University of

Zimbabwe, Harare, Zimbabwe; e-mail: [email protected]; 5Department of SoilScience and Agricultural Engineering, University of Zimbabwe, Harare, Zimbabwe;

e-mail: [email protected]

Abstract

As poverty has increased in Zimbabwe and elsewhere in Africa, the importance of water for smallholder agri-culture has intensified. This chapter draws attention to the human right to water adopted in General Comment15 by the Committee on Economic, Social and Cultural Rights, supplanting the Dublin Principles, which havetoo often been understood in the African context to mean water with the ‘right’ price. The chapter relates thishuman rights framework for law and policy, embedded in international and regional African instruments, to thehistory of national water legislation in Zimbabwe and its recent water reform. We ask how the historically evolv-ing component of ‘Primary Water Rights’ tallies, or not, with international human rights approaches. It alsotraces the implications for rural livelihoods of the recently introduced obligation to pay fees for any water usethat exceeds these ‘primary water uses’. Further, the international human rights approach to water and thenational notion of ‘primary water uses’ are compared with the multiple ways in which men and women shareand manage land and water, including local norms and practices within a broader right to livelihood. Fieldresearch in Zimbabwe suggests the existence of a right to water and livelihood in local water management thatcan respond better to poverty and gender inequities. We suggest that a right to livelihood could be used for anactive research programme to examine integration of local norms and practices within water management lawsand policies and small-scale irrigation as an alternative to the overemphasis upon large-scale commercial agri-culture.

Keywords: human rights, rights to water and livelihood, small-scale agriculture, local norms, gender discrim-ination, Zimbabwe.

© CAB International 2007. Community-based Water Law and Water Resource Management248 Reform in Developing Countries (eds B. van Koppen, M. Giordano and J. Butterworth)

Introduction

Water forms part of a broad ‘right to life’ thatunderlies rural livelihoods in Zimbabwe. It isexpressed in the Romwe Catchment in south-ern Zimbabwe as ‘water is life’ (hupenyu)(Nemarundwe, 2003), in Shamva district as‘drinking water should be for everyone’(Matondi, 2001) and in Mhondoro Communalarea as ‘one can’t deny drinking water toanyone’ (Derman and Hellum, 2003). Thisright endures despite efforts by both colonialand independent governments to redefine ruralcitizens’ relationship to water. The newly enun-ciated international human right to wateraccords well with the practices and normswithin most, if not all, of Zimbabwe’s commu-nal and resettlement areas, but does not fit witheither the colonial past or the current focus ofwater reform efforts. The idea that to denywater is to deny life indicates a profounder truththat there can be no human life without water.To deny people water denies them life.

The United Nations has included ‘a right towater’ in the International Covenant onEconomic, Social and Cultural Rights(ICESCR), 1966 in its development policy.1 Inits global report on water, Water for People,Water for Life, the United Nations Educationaland Scientific Organization (2003) emphasizesthe right to water explicitly. This right is implic-itly recognized in the Convention on the Rightsof the Child (CRC), 1989, in the Convention onthe Elimination of All Forms of DiscriminationAgainst Women (CEDAW), 1979 and in theGeneral Comment on the Right to Health,2000. The previous global consensus aroundthe Dublin Principles2, with its emphasis uponwater as an economic and social good, seemsto be receding in the face of a growing move-ment toward recognizing a human right towater as an axiom for development andpoverty-elimination policies. The MillenniumDevelopment Goal aimed at halving thenumber of people without clean drinking wateremphasizes the critical importance of cleanwater. The World Bank, which had been in theforefront of arguing that water was not a humanright but an economic good that requiredproper financing (World Bank, 1993, 2002,2003a), has shifted toward examining humanrights and equity (Salman and McInerney-

Lankford, 2004). It would seem that the manyelements of the global system are catching upwith villagers.

National water legislation and recent reforminvolve how a nation’s waters are managed andunderstood. In this respect it is important tounderstand the colonial roots of water legisla-tion in Zimbabwe, which protected and devel-oped water resources in the interest of thecolonial settlers at the expense of Africans,whose access to water was minimal and there-fore largely falling under ‘primary water uses’(see below). Entrenched inequities were factu-ally perpetuated under Zimbabwe’s waterreforms in the 1990s that were enacted princi-pally with the four Dublin Principles, ratherthan the human rights’ framework, in mind.The principles fit better with the long-standingstate biases toward large-scale commercial agri-culture, and are at variance with what happensin the communal areas where the majority ofthe people live. In these areas, residents culti-vate small plots, drawing upon local norms andpractices and often resisting unsympatheticstate policies. A common feature of local normsand practices, as observed in a wide range ofcontemporary studies of natural resourcesmanagement in Zimbabwe’s rural areas anddecentralization, is the emphasis on resourcesthat are vital for livelihood, such as food andwater.3

In this chapter we identify local principlesunderlying access to water and land, and wehave been surprised at the strength of funda-mental norms despite a literature that empha-sizes contestation and overlapping andconflicting spheres of authority. In turn, this hasled us to examine if and how these normativelocal frameworks are consonant with someprinciples of the right to livelihood and right towater now embodied in a range of internationalhuman rights instruments, as well as within thecurrent national legislation. This chapterconnects researchers’ observations on the prin-ciple of a ‘right to water’ in rural Zimbabwe withhow that right could be considered within thebroader context of a ‘right to livelihood’. Wesuggest that the conceptual division madebetween land and water does not fit with localconceptions of livelihoods or the growingevidence of the importance of the land–waterinterface, which includes ‘natural’ wetlands and

Law, Human Rights and Water Management in Zimbabwe 249

irrigation systems. We have chosen to probethese issues in Zimbabwe due to a long historyof colonial state support for irrigation for whitefarmers, the difficulties in establishing small-holder irrigation and the contemporaryprocesses of water reform in light of studiesinvestigating water management.4

This chapter does not include in any depththe medium- and long-term implications of thecurrent fast-track land reform programme(FTLP) underway for the ‘right to water’ andthe ‘right to livelihood’ (Derman and Hellum,2003; Hammar et al., 2003; Manzungu, 2003;Hellum and Derman, 2004, 2005). It is tooearly to speculate on what directions Zimbabwewill take after President Mugabe leaves office.However, one can observe that there has beena dramatic increase in the numbers ofZimbabwe’s poor, a direct consequence of theFTLP. Zimbabwe has one of the highest rates ofinflation in the world, combined with a shrink-ing economy. In the past few years, it has fallenfrom a medium human-development nation toa low one (Human Development Report,2003), and was ranked 147th out of 177 in theglobal human development index. High rates ofeducation (now dropping rapidly) keepZimbabwe from the bottom. Due to HIV/AIDS,population growth is projected to be at 0.2% ofthe annual growth rate. Life expectancy at birthhas fallen from 56.0 to 33.1, perhaps the mostpowerful indicator of failed policies.

In this context, there needs to be a muchgreater coordination between water policies andpoverty alleviation strategies. The question thatcan be asked is whether the global wateragenda, with its emphasis on commercialization,effectively engages with local realities in acollapsing country like Zimbabwe, whose politi-cal leadership first brought in neo-liberalism fora time but then rejected it (Manzungu, 2002).5

In the context of Zimbabwe, attention to thelocal gains is of increased importance, sincevillagers are far more reliant upon their ownresources than before.

This chapter proceeds as follows: in section 1we detail the emergence of the right to liveli-hood and the right to water in the UnitedNations system, the African Union and otherinternational and national forums. We do this toexamine how a human right can be constructedon the basis of other human rights. If and how

the human right to water becomes accepted andimplemented remains to be decided, basedupon many factors known and unknown.Section 2 considers Zimbabwe’s water history,water reform and water management. In section3 we examine the contemporary water reformprogramme, which was intended to address theinequalities produced by settler rule and realitiesof contemporary integrated water management.How local norms and practices respect rights tolivelihood and water forms the substance ofsection 4. While we note how little the new lawshave affected these, we propose greater atten-tion to those elements of local practice that arebest conserved. In the conclusions, section 5, weexamine how human rights – with its obligationsto protect, respect and fulfil – set new responsi-bilities for states to accomplish. This is a signifi-cant challenge in contemporary Zimbabwe, withits divergence from internationally acceptedhuman rights standards. See Fig. 15.1 for a mapof Zimbabwe.

Water as a Part of the Human Right to Livelihood

When Zimbabwe passed its new water acts thehuman right to water had not been explicitlyrecognized, although it had been included insome international conventions.6 In more generalterms, the human right to water derives from theright to life, the right to livelihood and the right tohealth. It has evolved through piecemeal interna-tional, regional and national law-making. It isrecognized in Article 24 of the Convention on theRights of the Child, explicitly stating that the childhas a right to clean drinking water. Article 14.2hof the Convention on the Elimination of all formsof Discrimination Against Women states that ruralwomen have a right to ‘enjoy adequate livingconditions, particularly in relation to housing,sanitation, electricity and water supply, transportand communications’ on an equal basis withmen. Article 15 of the Protocol to the AfricanCharter on Human and Peoples’ Rights on theRights of Women in Africa on the right to food7

obliges states partly to ‘provide women withaccess to clean drinking water, sources of domes-tic fuel, land and the means of producing nu-tritious food’. The human right to water is alsorecognized in the United Nations Convention on

250 B. Derman et al.

the Law of Non-Navigational Uses of Water-courses.8

The Southern Africa Development Com-munity (SADC) Protocol on Shared WaterCourse Systems of 1995 emphasizes equitableutilization of shared watercourses applyingexisting international law, existing practices andcommunity interest taking into account, amongother things, the environmental, social andeconomic needs and the impact of intendeduses of the watercourse (Article 2).

Safe, adequate and available water

A major shift in underlining the significance of aright to water was the General Comment No.15 of July 2002 by the UN Committee onEconomic, Social and Cultural Rights, wherebythe Committee concluded that there is a humanright to water embedded in Article 11 in theConvention on Economic, Social and CulturalRights (CESCR), defining the right to livelihoodas ‘including adequate food, clothing and hous-ing’. The term ‘including’, as understood by the

Committee, indicates that the catalogue ofrights encompassing the right to livelihood isnot exhaustive but must be adapted to chang-ing social and economic concerns such as theglobal water crisis (Eide, 2001). Concludingthat water is a human right, the Committee(2002) emphasizes the interdependencebetween human rights in general and betweenaccess to water and the right to health in Article12,1, the right to food in Article 11 and the rightto life and human dignity enshrined in theInternational Bill of Human Rights (1948).

Recognizing that water is required for a rangeof different purposes that are essential forhuman life, the Committee on Economic, Socialand Cultural Rights (2002) signalled threeelements: (i) water must be adequate for humanlife; (ii) it must be safe and available; and (iii) itmust be available on a non-discriminatory basis.Adequate water, according to the CESCR, is afar broader concept than just clean drinkingwater, since it encompasses water for personaland domestic uses and the necessary waterresources to prevent starvation and disease. Thescope and extent of the human right to water are


Fig. 15.1. Map of Zimbabwe.

defined through its link to the right to life, theright to health and the right to food. In the viewof the CESCR, especially important is thatsustainable access to water resources for agricul-ture is necessary to realize the right to adequatefood (General Recommendation No. 12, 1999).Disadvantaged and marginalized farmers(women and men) should have equitable accessto water and water management systems,including sustainable rain-harvesting and irriga-tion technology.

State obligation to respect, protect and fulfil

The obligation to respect, protect and fulfilrights cuts across urban and rural water suppliesand services. The obligation to respect includesa duty to refrain from interfering arbitrarily withcustomary or traditional arrangements forwater allocation, unlawfully polluting water ordestroying water services and infrastructureduring armed conflicts (General Recommen-dations 15, 23 and 24). Taking note of the dutyin Article 1, paragraph 2 of the Covenant(1966), which provides that people cannot ‘bedeprived of their means of subsistence’, statesparties should ensure that there is adequateaccess to water for subsistence farming and forsecuring the livelihoods of indigenous peoples.This aspect of the human right to water is alsoexpressed in the Statement of Understandingaccompanying the United Nations Conventionon the Law of Non-Navigational Uses ofWatercourses (A/15/869 of 11 April 1997),which affirms that, in determining vital humanneeds in the event of conflicts over the use ofwatercourses, ‘special attention is to be paid toproviding sufficient water to sustain human life,including both drinking water and waterrequired for production of food in order toprevent starvation’.

The obligation to protect as part of allhuman rights treaties and conventions requiresstate parties to prevent individuals, groups,corporations or other agents acting under theirauthority from interfering with the right towater. States parties are under an obligation toprevent private water service operators fromcompromising the right to equal, safe andaffordable water in terms of regulatory systems,including independent monitoring, public

participation and penalties for non-compliance(General Recommendations 15, 23 and 24).

As regards the duty to fulfil, states partiesmust, to ensure that water is affordable, adoptmeasures including: (i) use of a range of appro-priate low-cost techniques and technologies; (ii)appropriate pricing policies such as free or low-cost water; and (iii) income supplements. Anypayment for water services has to be based onthe principle of equity, ensuring that theseservices, whether privately or publicly provided,are affordable for all, including socially disad-vantaged groups. Equity demands that poorerhouseholds should not be disproportionatelyburdened with water expenses compared withricher households (General Recommendations15, 26 and 27). This has implications for theimplementation of the ‘user pays’ principle,which has become ubiquitous in both urbanand rural settings.

Taking the human right to water beyond thenation state, the Committee on Social andEconomic Human Rights in GeneralRecommendation 15 also recommends thatUnited Nations agencies and other interna-tional organizations concerned with water –including all United Nations’ organizations(World Health Organization, etc.) – shouldcooperate effectively with state parties in rela-tion to the implementation of the right to water.

The Committee also recommends that theinternational financial institutions, notably theInternational Monetary Fund (IMF), the WorldBank, the African Development Bank, etc.should take into account the rights to water intheir lending policies, credit agreements, struc-tural adjustment programmes and other devel-opment projects. The emerging literature on thehuman right to water by the World Bank andthe World Health Organization (WHO) suggestsa paradigmatic change (WHO, 2003; Salmanand McInerney-Lankford, 2004).

Non-discrimination

State parties are also obliged to ensure that theright to water is enjoyed without discriminationon the grounds of sex, class, colour, religion orpolitical opinion. State parties are to ensure thatnew laws, policies and programmes do notdeny this right either de jure or de facto to selec-


tive portions of the population. Inappropriateresource allocation can lead to indirect discrimi-nation. Investment should, according toComment 15, not disproportionately favourexpensive water supply services and facilitiesthat are available only to a small percentage ofthe population.

The CEDAW and Protocol to the AfricanCharter on Human and Peoples’ Rights on theRights of Women9 in Africa substantiate theprinciple of non-discrimination in relation towater, land and food security. Simply havinggender-neutral laws and policies in a situationwhere resources (time, money, land, water, forexample) are unevenly distributed betweenmen and women is insufficient. To ensuresubstantive equality CEDAW and the Protocoloblige state parties to take measures to elimi-nate both direct and indirect discrimination.10

Indirect discrimination points to the unintendedeffects of seemingly gender-neutral laws andpolicies. It is defined as ‘any distinction, exclu-sion or restriction made on the basis of sexwhich has the effect that they impair or nullify,on a basis of equality between men andwomen, human rights in the political,economic, social, cultural, civil or any otherfield (CEDAW Article 1)’.

The concept of indirect discrimination encom-passes development policies and programmesthat, on face value, are gender-neutral but inpractice are biased against large groups of femaleusers in comparison with male water users(Hellum, 2007). Policies, programmes and plansfor improvements and investments in water thatare based on a division between domestic andproductive water use will often have a discrimina-tory effect both in terms of class and gender.Women farmers’ hand irrigation of smallvegetable gardens has too often, for example,been seen as unproductive by conventionaleconomic standards. Seemingly gender-neutralinvestment policies targeted towards productivewater uses have, as a result, often disproportion-ately favoured larger or more expensive watersupply services controlled by men. States partiesto the CEDAW and the African Charter areobliged to take measures to eliminate this form ofdiscrimination. In accordance with Article 26 ofthe Protocol to the African Charter on the Rightsof Women in Africa, state parties are obliged toundertake to ‘adopt all necessary measures and

in particular provide budgetary and all otherresources for the full and effective implementationof the rights’.

In the next section we trace how the humanright to water, as defined internationally today,relates to the historical developments in waterlegislation in Zimbabwe and to the recentreform, in particular with regard to small-scaleproductive uses in rural areas.

Water Legislation and SmallholderIrrigation in Zimbabwe

Developments in water legislation and small-holder irrigation in Zimbabwe are closely linkedwith the country’s socio-political history. In itssimplified form this can be summarized in threephases. Between 1890 and 1980, the colonialstate machinery favoured white settler political,social and economic interests at the expense ofthe black majority population. The attainmentof independence in 1980 saw the post-colonialstate seeking to redress the historical race, classand gender imbalances. The social expansionof health, education, agricultural extension andresettlement between 1980 and 1990 proved tobe unsustainable as it was not supported by astrong economic base. This led to theIMF/World Bank-inspired Economic StructuralAdjustment Programme (ESAP) of the 1990s.ESAP promoted economic deregulation to theextent that the anticipated economic and socialgains were not achieved. From 1997 theeconomic malaise gave birth to complex politi-cal, economic and legal crises, which haveresulted in the state being unable to deliver onpolitical and economic rights. We providebelow a synopsis of the major developmentswith regard to water.

The early years: 1890–1927

In the early years, the colonial state’s preoccu-pation with mining was reflected in the watersector. The interest changed to agriculture whenit was apparent two decades later that miningwas not going to be a profitable venture, as wasthe case in South Africa. In this endeavour therewas scant regard paid to the rights of the blackpopulation. For example, in the allocation of


water rights a frontier mentality was displayedwith such claims as: ‘… being a new country,Southern Rhodesia is unhampered by the perni-cious common law relating to riparian owner-ship’ (Manzungu and Senzanje, 1996). In thisway the water rights of the black population thatpredated the settler claims were disregarded.But this is not to suggest that there was harmonywithin the settler community. In fact, conflictsover water within the settler community did nottake long to develop. The frequent and oftencostly litigations between rival claimants to theuse of water culminated in the Union IrrigationAct of 1912. This made provisions for thecontrol, apportionment and use of water. TheAct was based on the common law as evolvedand expounded by the courts (McIlwain, 1936).In 1913, the Water Ordinance was passed as away of comprehensively dealing with problemsof rights to water (McIlwain, 1936).

The South African connection had a stronginfluence on some aspects of water manage-ment. For example the settlers, encouraged bythe British South Africa Company (BSAC),used the Roman Dutch Law that had beenbrought from Holland and then in use in SouthAfrica – by then the English riparian rights hadalready been adopted. This was regarded asunsuited to the water resources and productionof the region (McIlwain, 1936). There was,however, continued use of the riparian rightsdoctrine in interpreting access rights and differ-entiated water-use types. The 1920 WaterOrdinance explained that: ‘If a farmer has landwell suited for irrigation and there is a streamthat can be economically utilized, he canacquire the right to use the whole of the waterfor irrigation even though it may leave otherswithout water except for primary purposes.’

While there were disagreements between thesettlers over which was the better legal model toguide water allocation, the situation was worsefor the black population. Land appropriationdisadvantaged communal area residents since itleft them downstream of white settlers with lessability to access water. In sum, the legal systemwas set against them, and compounded by ashortage of the necessary finance.

The concept of primary water use wasprovided for from the early years. Historically,primary water was a concept adopted from theearliest South African water laws. The first regu-

lation of water in Zimbabwe was by the Orderin Council, 1898, Section 81 pertaining to theBritish South Africa Company. It required thecompany to ensure that the natives or tribeshad a fair and equitable portion of springs orpermanent water. Primary water use was waterfor human and farm livestock use and was setat 50 gallons (~ 228 l)/person/day. This wasquite generous because it could be used in andaround the homestead, including gardening.Water for ‘secondary purposes’ was for irriga-tion and watering of stock other than farmstock. ‘Tertiary purposes’ included the needs ofthe mines and railways. While in theory therewas nothing that stopped the black indigenouspopulation benefiting from primary rights, acombination of lack of information and the dryterrain they were forced to inhabit did not helpmatters.

Agriculture-based water law: 1927–1980

With increasing water use by white farmers, newwater laws were required to establish the ‘rules ofthe game’. In 1927, for the positive requirementof fair and equitable availability of primary waterfor Tribal Trust Lands (TTL, what are now theCommunal Areas), water use was changed. Thenew act specified that changes in primary waterfor TTL residents be approved by the Board ofTrustees for Tribal Trust Lands (Hoffman, 1964).However, participation by ‘tribal’ and latercommunal area residents in water decisionmaking was nil. By the Act of 1927 the priorityright to water, granted to the mining industrywithin the Gold Belt areas, was modified infavour of irrigation (Government of SouthernRhodesia, undated). Therein were a number ofclauses that disadvantaged the black population.First of all, water rights were attached to land,which disadvantaged most black Zimbabweanswho had been dispossessed of land and placedin the reserves where they did not enjoy fullrights. Rights to land in the reserves were regis-tered with Communal Area bodies (formerlyknown as Tribal Trust Lands) and not with indi-viduals. Natives could therefore only apply forwater rights as a community, and throughgovernment officials. Even then the DistrictAdministrator or Minister of Water Developmentheld the water right on the behalf of TTL


residents. There was, however, provision for theappointment of representatives of ‘native inter-ests’ in the Irrigation Boards and in the WaterCourts. Not much is known about whether ornot they were actually represented. On the otherhand, settlers could individually apply for waterrights because they owned land in their ownprivate capacity.

Another problem was that water rights wereissued based on the priority date system; thismeant that rights were granted on a first-come,first-served basis. The black indigenous peoplewere disadvantaged because they had notapplied for water rights (Derman, 1998;Manzungu, 2001). When they later understoodthis, most of the water was already committedto rights held by the settlers. Water rights werealso issued in perpetuity, which meant that awater right once issued could not be revokedexcept in special circumstances, such as thedeclaration of a drought or when someone elseapplied for the same water and was willing topay compensation. By virtue of the fact thatsettlers applied for the rights way before theindigenes, most of the water was committed. Itshould be noted that, although racial water allo-cation was provided for in the 1927 Water Act,it was only in the 1940s that massive transfersof water to the whites actually occurred becauseof cheap finance made available for both dambuilding and irrigation. This emphasizes theargument that it is not necessarily changes inwater legislation that determine (lack of) accessto water.

The 1947 Water Amendment Act had looseallowances for primary water users, especiallyfor gardens and riparian users. The Act alsodefined vleis (seasonally flooded wetlands orwetlands in depressions), springs and streamsthat lay outside public management becausethey were defined as ‘private water’. Thischanged later with restrictions on dambo(wetlands) cultivation, mainly because of fear ofdegradation, which had been noticed in thewhite farms. The Act also identified new wateruses such as fish farms and conservationactivities that were a result of new commercialinterests.

The Water Act of 1976 upheld the principlesof the 1927 Water Act, i.e. rights to water werelinked to land, the priority date system of allo-cating water and granting a water right in

perpetuity. The Act also provided for catchmentoutline plans to be prepared for the develop-ment and use of surface water. Three types ofwater were recognized: public water, privatewater and underground water. The Act, under a1984 amendment, also provided for somestakeholder participation in such institutions asRiver Boards. The participation was, however,restricted to holders of water rights. The Actalso required applicants for water rights to putin place water measuring devices for a waterright to be confirmed as permanent. Thisexplains why most water rights in the nativeareas were temporary – the natives could notafford to put in the requisite measuring devices.

In summary, it can be said that the system ofwater allocation in the colonial period wasbased on the matrix of ideas of efficiency andmodernity and rooted overall in Europeanpower. The process was held almost entirely inmale hands, with an extension of racial andpatriarchal notions toward the great Africanmajority who were denied both adequate landand water (Campbell, 2003). Campbell (2003)further argues that the settler state’s planningmechanism was organized around the conceptof the scarcity of water. Politicians, agriculturalextension officers, water resources managers,hydrologists, engineers, planners and econo-mists propagated the concept of water scarcitywhen, in reality, the problem of water availabil-ity for black Zimbabweans was distribution, notscarcity. This was reinforced by the myth thatonly whites could have an efficient and produc-tive agriculture. African farmers, despite theirearly successes (Ranger, 1985; Phimister,1988), were excluded from access to water.

Smallholder irrigation: 1980–1997

The legal framework that was put in place in thecolonial era was by and large upheld by thenew nationalist government that was elected in1980, after 10 years of war. In the resettlementprogramme that was established after liberationthe government supplied drinking water, butonly in a few instances did it include irrigation.Irrigation systems existing on commercial farmstransferred to smallholders or resettlementfarmers were not maintained or protected.Another government initiative to elicit increase


in water accessibility by reserving 10% of waterin government dams was a complete failure, asno measures to make the water available weretaken (IFAD, 1997). Once again, the problemwas not availability of water but its delivery.

In general, government-sponsored and/or -funded irrigation schemes did not do nearly aswell as expected. Several evaluation studieshave suggested that smallholder irrigationschemes (initiated and constructed by thegovernment, which may be community- orgovernment-managed) have poor performanceand are not sustainable. Problems identifiedinclude poor water utilization, in terms of itstimeliness and adequacy to the field, and poorwater application to the field (Pearce andArmstrong, 1990; Donkor, 1991; Makadho,1993). Crop yields have been low and waybelow those achieved in the commercial farm-ing sector. The poor agricultural performancehas translated into poor financial and economicviability, thereby necessitating heavy govern-ment subsidies, up to 75% in some cases. TheRukuni Commission (Rukuni, 1994) found thatthe irrigation subsector in the communal andresettlement areas was dramatically under-budgeted by the state and required change.11

Pointing out the interdependency between landand water policies, the commission made aseries of recommendations12 to increase theefficiency of the agriculture sector. Theserecommendations were neither accepted norsystematically incorporated into state policy.

The largest area under smallholder irrigationremained informal, with little or no economicsupport. It continues to use a mixture of indige-nous and introduced technologies. This sector,estimated to cover at least 20,000 ha in the late1990s, was said to be more productive than theformal sector (IFAD, 1997). Indigenous irriga-tion has therefore been undervalued to theextent that it does not feature in official statisticsand policies, despite the fact that it contributessignificantly to rural livelihoods and sustainableresources management. Bolding et al. (1996)have commented on the merits of indigenousirrigation. In assessing irrigation systems in theEastern Highlands they noted why thesesystems were effective in contributing to foodsecurity and rural wealth. Based upon detailedempirical studies, there were several factors thatled to their efficacy. These include, for example,

the use of locally available materials, a norm ofequity that minimized conflicts over waterquantities, flexibility in adjusting to rainfall vari-ability, fewer expenses to build and maintainand demonstrated sustainability over manyyears. It appears that, although this was notaddressed in the original research, all those whosought irrigated land would receive some.

These local principles did not enter the centralgovernment’s policy frameworks. This hasmeant that small-scale irrigation and local waterresources management principles and practicesthat could have been used to support food secu-rity at the household level have not been valuedor made part of government policies.

As noted previously, a different approach hadbeen presented to the government. Of particularsignificance was the fact that the recommenda-tions made by the Rukuni Commission were verymuch in the spirit of Article 11 of the InternationalCovenant on Economic, Social and CulturalRights. This emphasized the obligations to takesteps to ensure the realization of the right to liveli-hood by ‘reforming agrarian systems in such away as to achieve the most efficient developmentand utilization of natural resources’. Among theCommission’s recommendations to increase theefficiency of the agriculture sector, the mainrecommendation was increased investment inwater in communal and resettlement areas. Otherrecommendations as to how agricultural produc-tion could be increased in communal and reset-tlement areas included legally secure tenure,improved credit and financial services andcomprehensive agricultural support institutions. Itappeared that the Zimbabwean government hadlittle interest in smallholders. It did, however, havea new and deep interest in water management.

In the next section we turn our attention tohow Zimbabwe’s water reform responded toglobal discourse on water reform in general andhow the new water policy might address smallblack farmer needs.

Zimbabwe’s 1998 Water Reform:Addressing the Colonial Legacy

The core of Zimbabwe’s water reform, initiatedin the mid-1990s, rested on increasing access towater by black Zimbabweans while ensuring theproductive use of water.13 New participatory


structures were created to increase access towater management decision making. These arecalled Catchment and Sub-catchment Councils,and are based in Zimbabwe’s seven hydrologicalzones. In addition, a new parastatal was estab-lished – the Zimbabwe National Water Authority(ZINWA) – to shift water management expensesfrom government to users and to increase theproductive use of Zimbabwe’s water. Prior to theWater Act of 1998, large-scale commercial farm-ers controlled Zimbabwe’s water through a‘water rights’ system – first in time, first in line.This made it very difficult for new appropriationsto be made to Black small-scale farmers, whohad great difficulty in finding the resources toobtain water rights and to negotiate with thebureaucracy to secure those rights.

The Water Act of 1998

Under the Act all water is vested in thePresident and no person can claim privateownership of any water. In presenting the firstreading of the new draft Water Bill, AttorneyGeneral (now Minister of Justice) PatrickChinamasa emphasized the following: ‘Whatthe existing legislation has done is that thewater is the President’s water but the Presidentthen put in legislation to give permission topeople to exploit it and that is what is peculiarlyknown as the water right’ (ZimbabweParliamentary Debates 1998, p. 1566).

In defending the abolition of the concept ofprivate water, Chinamasa also asserted thecommon Zimbabwean understanding of water:‘Water is a public resource. It is a gift from God.None of us here are rainmakers, and thatincludes commercial farmers. The rainmaker isGod. He provides His people and that waterforms part of the hydrological cycle’ (ZimbabweParliamentary Debates, 1998, pp. 1562–1563).

This is consistent with Zimbabwe’s history asa centralized state while appearing to incorporatenew global water management policies (Dermanet al., 2001). The 1998 water legislation trans-ferred most national planning functions from theDepartment of Water Development to the newparastatal ZINWA with oversight from theMinistry of Water Development and RuralResources. ZINWA is funded through the sale ofwater collected behind government dams, the

provision of water to cities and the levying ofwater charges to large-scale users. Managementof Zimbabwe’s water is to be shared with thenew stakeholder organizations of CatchmentCouncils and Sub-catchment Councils.14

Commercial and primary water: thecontinued colonial legacy?

Zimbabwe’s water is still divided into two cate-gories – commercial water and primary water.Primary water is defined in the Water Act of 1998as water used for: (i) domestic human needs in orabout the area of residential premises; (ii) animallife; (iii) making of bricks for private use; and (iv)dip tanks.15 In sum, it is not restricted to drinkingwater but seen as an integrated part of livelihoodnecessities such as food and housing in thecommunal areas. The state is obliged to respectand protect the right to primary water as embed-ded in the Act. What is meant by ‘domestichuman needs in and about the area of residentialpremises’ is, however, not clear. The Water Act(51.1) asserts the importance of primary water:‘No permits granted by a catchment council,other than permits for the use of water granted toa local authority for primary purposes, shall havethe effect of depriving persons of the use of waterfor primary purposes.’

This makes provision for ensuring thatprimary water users will not lose any furtherwater. However, to actualize this right meansknowing how further water abstractions wouldaffect primary users. No catchment inZimbabwe knows the amount of primary waterused because the catchment planning exercises,which were to make accurate estimates, haveyet to be completed. In addition, there has beena loss of information on commercial water use.The implication that primary water use hadpriority over commercial water use has notbeen asserted to the knowledge of the authorssince the implementation of the Water Act. Novolumes have been provided for primary wateruse. While a general national estimate has beenmade of rural primary water use, amounting to1% (Zimbabwe Government, 2000c), there areno detailed empirical estimates of actual use. Ithas been assumed that the amount of use hasnot justified registration in comparison withcommercial water use (see below).


New innovative forms of commercial crop-ping emerging within the common propertyregimes in the communal lands, such asgardening for consumption and sale, representa challenge in how Catchment Councils, whenissuing water permits, draw a dividing linebetween commercial and primary water uses.These uses render problematic the divisionbetween commercial and primary water. Underthe new Water Act of 1998, it is only water usedfor commercial purposes that requires a permitin terms of Section 34. The definition ofcommercial water depends upon use – waterused for purposes including agriculture, mining,livestock, hydroelectric power, etc. It followsfrom the ZINWA Act, Section 41, that onlypermitted water is subject to the user pays prin-ciple in terms of the new water levy.16 Thusrural primary water users do not have to do so.

One Catchment Council, the Mazowe,debated what constitutes the difference betweencommercial and primary water use. The CouncilChairman suggested a technological answer: ifthe water is moved by hand it is primary water, ifit is moved by machine then it will be consideredcommercial. The Catchment Manager fromZINWA present at the meeting indicated that, asyet, ZINWA had not decided what the guidelinesshould be in deciding whether water use wasprimary or commercial.17 Villagers fromBangira, in Mhondoro Communal Lands, whoargued that they would refuse to pay for watermoved by a pump to provide their vegetablegardens with water, contested this view. Acouple who had worked hard to establish fund-ing for the local dam in order to raise their livingstandards and those of other families arguedthat, since the surplus from the gardens wasused for livelihood essentials such as clothes,school fees or medicine, the water use shouldnot be seen as commercial.

Research investigating different catchmentcouncils demonstrates that the intention of thenew Water Act to ‘ensure that the availability ofwater to all citizens for primary purposes’ wasnot realized (Derman, et al., 2001; Dube andSwatuk, 2002; Mtisi and Nicol, 2003; Manzungu,2004b). Indeed, the emphasis was upon catch-ments and sub-catchments to raise revenue forthem and for ZINWA. In the Mzingwane catch-ment, which had limited commercial water tolevy, there was a suggestion of levying a charge

for every herd of cattle. In the Save Catchmentlevies were proposed for any water use wheresome income was realized.

This lack of conceptual and policy clarityalso applies to the thousands of boreholescurrently used in Zimbabwe. ZINWA’s policywas to register all boreholes and then chargeborehole owners for water because, like allwater, it belongs to the government. On theother hand, the Presidential Land ReviewCommittee under the Chairmanship of DrCharles Utete recommended that levying waterfrom boreholes should be stopped because ‘itdiscourages investment in water resource devel-opment and the enhancement of production onfarms through irrigation’ (Utete, 2003, vol. 1,p. 177). No attention was paid in this report tothe scale and intensity of borehole water use.

The Water Act and human rights

These different conceptualizations do not sitwell with the definition of water of theCommittee on Economic and Social, andCultural Rights as a part of the right to liveli-hood as stated in General Recommendation15. This recommendation emphasizes that thesustainable access to water resources for agri-culture is necessary to realize the right toadequate food. Local management systems asdescribed earlier cut across the commercial/primary division. In our view, an approachbased on human rights calls for a clearer defini-tion of primary water uses that transcends cleandrinking water and includes the legitimateconcerns of poor small-scale farmers. Whilesuch legal clarifications may be undertaken bythe stroke of the pen, the CESCR also obligesstates to take positive steps to fulfil the humanright to water. Such positive steps call for long-term economic commitments, implying thatinternal and external economic resourcesinvested in infrastructure are beneficial for thepoor in all of Zimbabwe’s rural areas, not just inthe newly resettled ones.18

Despite the emphasis on equality of accessin the initial phases of water reform, most atten-tion has been devoted to increasing the numberof commercial water users. Zimbabwe’s newwater management system was based on thepremise that fees for commercial water use


would be used for the development of waterresources. The areas under irrigation inZimbabwe have diminished greatly, since theirrigation systems on the former commercialfarms have not been sustained and oldergovernment-sponsored irrigation schemes havebeen unable to continue in light of the harshmacro-economic climate following the fast-track land reform. According to Manzungu(Utete Report, 2003, Vol. 2, p. 89) the totalnumber of hectares under irrigation has fallenfrom 186,600 to 120,410. This loss of 66,000ha under irrigation has primarily been in theformerly large-scale commercial farm sector.

The institutional separation of water supplythrough Rural District Councils from waterresources management issues throughCatchment Councils in the communal lands isanother factor that has inhibited water develop-ment. Under the water reform, Catchment andSub-catchment Councils had reasonablesources of funding where Rural District Councilsare underfunded and have too many obliga-tions. Questions of water supply are also linkedto borehole provision for combined domesticand productive use, especially in the communaland resettlement areas. Under the new waterpolicy, the Integrated Rural Water Supply andSanitation Program remains separate from theabove while continuing to be tasked withproviding safe, protected drinking watersupplies for all rural water users and to ensurethat every household had at least an improved,partially enclosed latrine. This separation hastended to alienate primary water users, who arethe vast majority of Zimbabwe’s water users(Manzungu, 2004a, p. 13).

Water supply programmes have been espe-cially vulnerable to government service shrink-age and donor withdrawal. It is poorer womenwho rely heavily on water sources that are free ofcharge, such as borehole water for their gardens,and who find themselves caught in the gaps andmismatches between these different policies andinstitutional structures. Their water needs falloutside the scope of both the water and sani-tation programme and the water reform policyaimed at larger-scale users. In our view, bettercoordination and linkages between Catchmentand Sub-catchment Councils with Rural DistrictCouncils would have been a better strategy,although admittedly difficult. The involvement of

both water institutions could have providedappropriate incentives for the participation ofsmall-scale users.

The new Zimbabwean water policy seeks tohave a single uniform water managementsystem in place. The regulations framing thenew water management system are, by andlarge, moulded on a large-scale commercialfarming model giving little attention to thepotential of local irrigation systems and meth-ods developed by communal-area farmers.Local irrigation methods and principles asdescribed above and analysed in the naturalresources management literature have notentered the central government’s policy frame-works (Bolding et al., 1996). This has meantthat small-scale irrigation and local waterresources principles and practices that couldhave been used to support food security at thehousehold level have not been valued or madepart of government policies.

In communal areas and resettlement schemesboth men’s and women’s access to water still relyheavily on use rights embedded in local normsand practices (Pinstrup-Andersen, 2000, p. 13).These local use rights have, in part, beenprotected, as described above, by the concept ofprimary water. In the next section we explorewhether there might be an explicit or implicitrecognition of ‘a right to livelihood’, at least withrespect to access to water for livelihood purposesin Zimbabwe’s rural areas.

A Rights Perspective on Water and Livelihood

Derman, Hellum and Sithole have, since 1999,been studying water management in the threevillages of Bangira, Murombedzi and Kaonderain the chieftainship of Mashamayombe inMhondoro Communal Land (Derman andHellum, 2003; Hellum and Derman, 2005).19

This local qualitative study was part of a widerstudy of national water reform in Zimbabwe thatwas undertaken by the Center for AppliedSocial Studies (CASS) at the University ofZimbabwe. We chose this area due to a rapidand recent increase in tobacco growing, a rela-tively large number of private wells and the exis-tence of a dam project. Apart from dry-seasonvegetable gardens located along streams, rivers,


vleis and boreholes, agriculture in this arearemains primarily rain-fed maize with an expan-sion of irrigated tobacco. Because of thesetrends in commercialization, we expected to finda decreasing open access to the area’s waterresources. We made the assumption that,because the deep and open wells were locatedon homesteads and that there was a greatincrease in tobacco production, that these wellswould become increasingly ‘private’.

Water for life: the right to safe drinking water

Our study in Mhondoro suggested that at thelocal level, as in human rights law, there is aright to clean drinking water. Villagers demon-strated a surprising degree of consistency overtime and space in upholding the norm that noone can be denied clean drinking water(Derman and Hellum, 2003). The obligation toshare drinking water extended to wells, whichwere privately dug, and on basically privateland. In one village a private borehole, paid forby one household, rapidly became a villagesource of drinking water. In another village aborehole built by the Zimbabwe TobaccoAssociation for irrigating tobacco seedlingsbecame an important drinking source for theentire village. In a third village in the study area,the private well of a widow served as a sourceof drinking water for almost the entire village.Based on the norm and practice of sharing,access to drinking water extended to boreholesconstructed for principally commercial, dedi-cated or private use. The duty to share increasedrather than decreased during drought periods.Such sharing cut across kinship and villageborders, and it has been upheld during theaccelerating economic and political crisis. Waterusers and well owners reported that they hadnever paid or received money or given gifts. Tobreach the norm of providing drinking watermeant risking sanctions or being the target ofwitchcraft.20 Universal access to drinking waterin Mhondoro points to a morally based dutyrather than a negotiable and reciprocity-basednotion of property, often pointed to as a charac-teristic feature of African customary laws (Berry,1993).21 Applicable to men and women, insid-ers and outsiders, it also points to a notion ofequality and non-discrimination.

These findings are consistent with our read-ings of a series of Zimbabwean monographs onnatural resources management including water,wetlands, forests and land (Cleaver, 1995;Derman, 1998; Sithole, 1999; Matondi, 2001;Nemarundwe, 2003; Walker, undated, unpub-lished paper). All the empirical records fromcommunal areas in Shamva, Mutoko, Chiduku,Dande, Masvingo, Guruve and Matabelelandsuggest that water for drinking can, and should,be made available to all. Nemarundwe, in herdoctoral thesis, reports from the Romwe catch-ment in the Chivi district, South Zimbabwe thatdrinking water is made available to all nomatter what the source of water is. Availablewater sources include boreholes, river bedwells, rivers, wells, collector wells and dams. Nomatter the tenurial status, whether publicly orprivately owned, the water sources are avail-able for drinking water. In a powerful and clearmanner she writes: ‘Because water is consid-ered hupenyu (life), there has been no case ofdenying another village access to water duringdrought, although rules of use are enforcedmore stringently during drought periods’(Nemarundwe, 2003, p. 108).

The study points to actual incidents wherethis general ideal was challenged. One exampleis a well owner who prevented others fromaccessing his well. Two days after he locked thegate to the well he found a dead dog. Inresponse to this the well owner later unlockedthe gate (Nemarundwe, 2003, p. 113). In asimilar vein Prosper Matondi, who carried outhis research in an area of resettlement farmersand two irrigation schemes in the Shamvadistrict near Bindura, the provincial capital ofCentral Mashonaland Province, found thatdrinking water remained available for alldespite growing scarcity of both land and waterresources. In a parallel fashion, BevlyneSithole’s research in Mutoko and Chidukucommunal areas in eastern Mashonaland andManicaland Provinces, respectively, summa-rizes farmers’ views on water as follows: ‘Watershould be available to all, rich or poor, but theperson who impounds the water is the one whomakes the river dry’ (Sithole, 1999, p. 195).Frances Cleaver’s study in the Nkayi communalland in Matabeleland suggests that water userrules that limit poor people’s access to water areinvalid. She observed that poor women got


away with breaking the rules that limited waterresource to certain individual users (Cleaver,1995, p. 357).

Water for livelihood: the right to garden?

Rural people in Zimbabwe see land and wateras closely interconnected in fulfilment of liveli-hood needs. Livelihoods are no longer justabout access and use of land and water in ruralareas.22 Access to basic livelihood resourcessuch as health services, food and housing alsodepends on cash. Like many rural southernAfrican residents, Zimbabweans are dependentupon remittances from kin in cities or abroad,or reliant upon their own engagement with paidjobs or market activities. Households and fami-lies are quite different and even in one ruralarea there are significant differences betweenthem in terms of reliance upon land and water.Yet, within the context of this mixed rural liveli-hood structure, dambo cultivation has particu-lar significance since wetlands have grown inimportance due to the unpredictability ofZimbabwe’s rains, increased reliance upon cashcrops and the possibilities of hand irrigation.

Almost every family in the three villages inMhondoro had gardens when we began ourstudy in 1999. A quantitative survey of watermanagement in the area demonstrated that90% of households had some form of dry-season garden requiring hand irrigation.23 Thelarger and more productive gardens tended tobe close to, or in, wetlands, but there weresignificant gardens at the homestead if therewas a borehole or productive well close athand.

The family gardens were usually the mainresponsibility of the women. The crops in thegardens are covo, rape, onions, tomatoes,beans, groundnuts, maize, sugarcane andcabbage. There are also fruit trees includingbanana, papaya and mango. These rely heavilyon the common pool water resources includingrivers, boreholes, deep wells and shallow wells.Gardens are often situated on land that is eitherseasonally flooded or holds water from therainy season long into the dry season. Thegardens are as much a source of income as offood for the family. The income is often used formeeting household needs including food,

education, clothing and medicine. In the recentyears of drought and economic hardship, theproduce from women’s gardens has been anessential source of livelihood.

Dambo cultivation in Mutoko and Chidukuin eastern Mashonaland and Manicalandcoincided with the establishment of missionschools and hospitals in the mid-20th century(Sithole, 1999, p. 140).24 As in Mhondoro, themajor garden crops came first from large-scalecommercial farms and then from agriculturalextension officers during and after the colonialperiod. Three Mhondoro elders told us theywere the first villagers to start gardening in the1950s. They were taught to grow vegetables byan agricultural extension officer in the colonialadministration. Women especially expandedtheir gardens after independence to providegreen vegetables for their families. Gardeningincreased in the 1990s as the rate of inflationrose. Government construction of boreholes,cement wells and some small dams facilitatedfurther garden expansion. The Zimbabweangovernment began withdrawing from ruralareas during the 1990s under the combinedpolicies of structural adjustment and decentral-ization. People in Mhondoro, as local communi-ties elsewhere, have since been left to findalternative economic sources for expandingwater supply for drinking water, watering cattleand irrigation. The CASS survey indicated thatmore than 70% of the households in the threevillages had invested work and money in water,including private wells and other waterresources.

The mixed character of the principles thatderive from this agricultural practice is neithertraditional nor modern, demonstrating thatrural people in their livelihood strategies drawon a wide variety of sources. Our study ofgardens in Mhondoro suggests that the right towater as part and parcel of rural livelihoodsextends beyond the right to clean drinkingwater (Hellum, 2007). Households that neededgarden lands were allocated appropriate land.25

Everyone we interviewed in one village statedthey had obtained the headman’s explicit orimplicit approval to access land for gardens onvleis or close to rivers. The gardens, theSabhuku (village headman) said, were impor-tant sources of livelihood and self-reliance. Forthis reason he had not taken action when


people allocated themselves gardens withouthis permission. Another reason was fear ofrevenge from ngozi (bad spirits). This suggeststhe existence of an underlying norm of sharing.A similar pattern was observed in anothervillage, where people’s gardens were movedfrom the wetlands to communal gardens closeto a newly constructed dam. Everyone wasgranted land for gardens in this area. If the landallocated for the communal gardens was insuffi-cient, the headman saw it as his duty to allocatemore land. None of the villagers we interviewedhad paid for the land. This suggests a widerright to livelihood that is not limited to cleandrinking water, but extends to access to gardenlands with available water sources.

The right to use available water for gardens,however, appears to be subject to greatercontestation than a right to drinking water. Forexample, Nemarundwe (2003) provides a shortillustrative case of water conflict at a small dambetween richer and poorer, women and menand livestock owners and non-livestock owners.During a drought year the dam committeechairman sought to stop villagers from plantinggardens until it was clear that there was enoughwater for livestock. Garden project membersprotested, indicating that such a move woulddisadvantage poor farmers who, after all, didnot own livestock and depended on the irri-gated plots for their livelihoods (Nemarundwe,2003, p. 166). The dam chairman proceededto seal off (with the assistance of two othervillagers) all outlet valves at the dam so that nowater could flow to the gardens. As a result,villagers challenged him publicly. The damchairman then let out all the water, until it wasbelow the outlets. The resolution of disputesrequired external authorities to help sort out theconflict. The dam chairman was subject to atribunal organized by the Rural District Counciland the NGO supporting the project. He wasreprimanded and the villagers called for him toresign from the dam committee. However, heapologized to the project members andpromised to cooperate with other farmers inconserving water resources.

Our reading of Sithole and Matondi suggeststhat, unlike the right to safe drinking water, theright to garden lands with available water was,in the final analysis, limited to kin. ProsperMatondi’s study from Shamva focused on the

growing scarcity of arable land near water(Matondi, 2001). As is the case throughoutZimbabwe, dambo gardens are located nearthe streams dissecting the vleis that are alsoused as grazing areas. However, over time theyhave been used more for gardens than for graz-ing. With the presence of livestock, gardenshave to be fenced to prevent animals fromeating the produce and drinking from the well.The fencing of vegetable gardens along riversor on wetlands is common practice all overZimbabwe. This suggests that, once the land isallocated for gardening, the land and the wateravailable for irrigation become family property.Access to both land and water thus may berestricted on the basis of kinship ties. In thesame vein, Sithole (1999) documents increaseddesiccation of dambo areas in Mutoko(Mashonaland East Province) and Chiduku(Manicaland Province) communal areas, andthus increased difficulties in using the waterfrom dambos for small-scale irrigation.

The main mechanism for sharing scarcelivelihood resources under these conditions issubdividing the land among kin within thebroader family. This suggests that, in situationsof scarcity of common pool resources, the normof sharing is placed on the kin. Often, thisscarcity has been created by the unequal divi-sions between land and water and between thecommercial farm sector and the communal andresettlement areas. The pattern was that ratherthan deny some families or households accessto dambo land, the gardens were subdividedinto smaller areas. It remains to be seenwhether this situation has been altered by theFast Track Land Reform.

While access to gardens with available waterresonates with villagers’ deep concern for liveli-hood it is, unlike the right to safe drinking water,not available on a universal and non-discrimi-natory basis. Outsiders do not have access andthe land is, in principle, allocated to the malehead of the household on behalf of the family.Yet livelihood concerns crosscut the male statusrule so as to make land available to single andchildless women, widows and divorcees. Whilemarried women, due to these formalities, havebeen seen as landless, Sithole (1999, p. 80)observed that women seem to be acknowl-edged by most men as owners of the garden.26

This strongly suggests that ownership within the


family is not acquired through rules concerningfamily representation but by actual use andwork on the land.

While accepted within and amongst localcommunities, these norms are frequently over-looked and disregarded in development poli-cies, projects and practices. In one of the largestresettlement projects in a communal area in theZambezi valley, Derman (1997) reports thatwomen farmers could no longer maintain theirdambo gardens since they were moved awayfrom streams and rivers. Boreholes wereprovided for drinking water and watering live-stock. There was no broader concern for liveli-hood as people were left to dig their owngarden wells to supply water for vegetables.Some women continued walking long distancesto keep up their gardens, while other familiesinvested in private wells. For many women theonly solution was to use the scarce boreholewater for irrigating vegetables. Because of thevery dry conditions and livestock water require-ments there is great pressure upon the function-ing boreholes which, in turn, has meant thatmany women have had to give up or reducetheir gardens.

Conclusions and Reflections on the Rightto Water and Livelihood

In sum, these practices from different parts ofZimbabwe point toward the existence of a set ofinterrelated norms of sharing of land and waterthat are essential for livelihood. Both cleandrinking water and access to land with availablewater are shared between and within villagehouseholds on a day-to-day basis. This normunderlies trouble-free cases (cases where agree-ment is reached through everyday practicewithout involvement in any dispute resolution),but it is also confirmed by ideal statements fromvillagers (what people say) and, more impor-tantly, by trouble cases from Nemarundwe’s,Sithole’s, Matondi’s and our own research.However, three interrelated processes threatenthese norms and practices: (i) the broadeconomic and social crises that have coincidedwith the Fast Track Land Reform and havealtered the rural landscapes; (ii) the fiscal crisesof ZINWA and Catchment Councils, leadingthem to want to increase their sources of water

revenues; and (iii) pressures upon waterresources due to drought or conflicts over usebetween mining or livestock and gardens.

The widespread acceptance of these normsemerges as vital in the ways that local commu-nities handle poverty and food security. Theselocal norms and practices interconnect withemerging human rights law that considers wateras part of the right to livelihood. This includesclean drinking water and adequate access towater for subsistence farming and for securinglivelihoods. The current multi-level and multi-layered political and economic crises inZimbabwe pose challenges to the use of humanrights as a framework for reform. Because inter-national human rights are considered to beincompatible with the current Africanist direc-tions of the Government of Zimbabwe, theCovenant on Economic, Social and CulturalRights, the Convention on the Rights of theChild and the Protocol to the African Charteron the Rights of Women (among others) havebeen deemed irrelevant to the government’spolicies. Our research suggests that this dichoto-mous perception of African culture and humanrights is false insofar as the rights to water andlivelihood are concerned. It shows that prevail-ing norms and practices in communal areasand the emerging human right to water andlivelihood provide common ground for a newframework facilitating active and direct supportto small-scale (and often poor) farmers.

Primary water can be a starting point fornational legislation and policies to include a ‘rightto water’ and a ‘right to livelihood’. The idea of apriority right to primary water for basic humanneeds, including domestic, animal and house-building functions, is unique in the region. It hasmeant that such water in principle has beenprotected from the growing demand for ‘userpay’ which, according to the Water Act, isrestricted to commercial water. However, thepressure upon a more privatized water sector, ledby the Zimbabwe National Water Authority, tobe self-financing in the context of a nationaleconomic crisis demonstrates the need forgreater legal and political clarity for primarywater. Indeed, the ‘goal’ of water reform appearsto be increasing the amount of water that can belabelled ‘commercial’ rather than ‘primary’.

In our view, then, priority could focus onhow to use primary water for socially beneficial


and development purposes other than simplyexpanding commercial water use. Primarywater enables the concept to be developed inthe light of local concerns and the widerregional and international human rights laws.However, we do not think under currentcircumstances that Zimbabwe can, in practice,achieve the broadening of such rights. Rather,given the growing scarcity of resources we caneasily envision ZINWA or Catchment Councilswhose members are attempting to obtainrevenues by defining these small gardens ascommercial ventures, in which case they will besaid to be using agricultural water, whichattracts a price.

Another related problem is whereCatchment Councils label all water as stored,which attracts a higher price compared withwhat is called normal flow. Basically, this meansthat smallholder farmers will, in principle, haveto pay for the irrigation water. Once again, ruralpeople’s decision making seems highly respon-sive and sensible in the light of changingsurvival requirements and should guide lawsand policies. A better approach would be toassist smallholders to increase their use of waterand therefore production, with the likelihood ofincreased nutrition and decreased illness, espe-cially if sanitation is improved simultaneously.

Local discourses and practices of distribu-tion and management of water speak of theemerging notion of water as a human right.Older dambo cultivation and more recentgardens have been utilized under a principle ofa right of access to both land and water forlivelihood purposes. The concept of livelihood,as locally understood, has responded to achanging social and economic environment byincluding sale of produce but with the under-standing that it is for socially understoodpurposes, including education of children,health expenses, clothing, house repair, etc.,along with the consumption of garden prod-ucts. It cuts across a narrow distinction betweencommercial and primary water. From theperspective of a local livelihood, it makes littlesense to make a distinction between gardenproducts that are directly consumed by thefamily and products that are sold to provide formedicine, food or clothes.

Neither the Zimbabwean land reform northe water reform addresses how to assist those

engaged in small-scale irrigation. The priorityhas been given to commercial water and toredeveloping irrigation systems in what hadbeen the large-scale commercial farming sector.In Zimbabwe, most communal area irrigation isoutside of formal irrigation schemes. Neitherthe Zimbabwe water acts nor recent policydocuments make any mention of how tosupport informal irrigation carried out inZimbabwe’s communal areas and, increasingly,in the former commercial farmlands. This has todo with the division between the developmentfunctions for communal and resettlement areastasked to Rural District Councils and centralgovernment, water management functionsgiven to Catchment Councils, ZINWA and theMinistry of Water Development and the ruralwater-supply functions that are separate fromthe new institutions of water reform.

Lastly, given the importance of women, agrounded human rights analysis would greatlystrengthen efforts to identify potential discrimi-natory effects and to suggest policies to increasewomen’s production. One problem is that watersources used by female small farmers, forexample irrigation of vegetable gardens byborehole water, have been seen by conven-tional economic standards as unproductive. Asa result of the gendered character of land andwater uses, seemingly gender-neutral invest-ment policies have often disproportionatelyfavoured expensive water supply servicescontrolled by men. This may lead to indirectdiscrimination, in terms of both CEDAW andthe Protocol of the Rights of Women to theAfrican Charter.

Acknowledgements

Drs Manzungu and Machiridza would like tothank the Challenge Programme, ProjectNumber 47: ‘Transboundary water governancefor agricultural and economic growth andimproved livelihoods in the Limpopo and Voltabasins – towards African indigenous models ofgovernance’, without whose financial supportthe writing of this paper would not have beenpossible. Bill Derman was supported in his research by a Fulbright-Hays ResearchGrant, a Wenner-Gren Foundation Grant forAnthropological Research and the BASIS CRSP


for Water and Land Research in SouthernAfrica. Anne Hellum has been supported by theMinistry of Foreign Affairs/Norwegian ResearchCouncil Program Development Grant for theInstitute of Women’s Law at the Faculty of Law,University of Oslo and the NORAD-fundedcooperation between the Institute of Women’sLaw (University of Oslo) and the Southern andEastern African Center of Women’s Law(SEACWL) at the University of Zimbabwe. MrPinimidzai Sithole’s research has beensupported by the BASIS Mentors’ Program andthe BASIS CRSP for Water and Land Researchin Southern Africa.

Endnotes

1 In general, Conventions are instruments passed bythe UN General Assembly. Conventions are madebinding for state parties by ratification. Two conven-tions are formally termed covenants. These are theCovenant on Civil and Political Rights, 1966 andthe Covenant on Social, Economic and CulturalRights, 1966. General recommendations/generalcomments are the interpretations of the humanrights treaty bodies that, in accordance with therespective conventions, have the power to makesuch recommendations. The general recommenda-tions are not directly binding for the state parties tothe conventions, like the conventions themselves.They are sources of interpretation accorded weightby international and national courts.

2 The four Dublin Principles are: (i) fresh water is afinite and vulnerable resource, essential to sustainlife; (ii) water is an economic and social good; (iii)water development and management should bebased on a participatory approach involvingusers, planners and policy makers at all levels;and (iv) women play a central part in the provi-sion, management and safeguarding of water. Thethinking behind these principles has been incor-porated into policy documents authored by theWorld Bank and other donor organizations(World Bank, 1993, 2002, 2003a, b).

3 Southern African rural scholarship and practicehave focused upon livelihood strategies, access toresources and the necessary institutional changesto support rural livelihoods. See for exampleScoones, 1996; Sithole, 1999; Benjaminsen et al.,2002; Nemarundwe, 2003.

4 Water reform has been part of the general processof decentralization. The argument runs that, ifnatural resources are managed at the local level,then they will be looked after better and moreefficiently, resulting in improved opportunities for

sustainable livelihoods (SLSA Team, 2003a, p. 3).There was, however, no discussion of the localpractices and norms that can influence or evendetermine whether decentralization will besuccessful.

5 There continues to be an important debate aboutthe origins of fast track and its relationship to theparliamentary elections of 2000. One line ofthinking views the land invasions as politicallymotivated to win the elections (Sachikonye, 2003,2005; Hellum and Derman, 2004, among others),while the other perspective contends that fasttrack was an unplanned response to pressuresfrom landless people (Moyo and Yeros, 2005).

6 In Africa, the right to water had been incorporatedinto national instruments in the region. For exam-ple, the right to water is embedded in the Bill ofRights in Section 27 (1) (b) of the South AfricanConstitution. It states that everyone has the rightto have access to sufficient water. Article 12 of theZambian Constitution maintains that the stateshall endeavour to provide clean and safe water.According to Article 90 of the EthiopianConstitution, every Ethiopian is entitled, withinthe country’s resources, to clean water. Thepreamble to the Namibian Sixth Draft WaterResources Management Bill of 2001 states thatthe government has overall responsibility for andauthority over the nation’s water resources andtheir use, including equitable allocation of waterto ensure the right of all citizens to sufficient safewater for a healthy and productive life and theredistribution of water.

7 The Protocol was adopted by the 2nd OrdinaryAssembly of the African Union, Maputo, 11 July2003 and entered into force in 2006.

8 The statement of understanding states that: ‘Indetermining vital human needs in the event ofconflicts over the use of water courses, specialattention is to be paid to providing sufficientwater to sustain human life, including both drink-ing water and water required for production offood in order to prevent starvation.’

9 The introduction to the Protocol states thatArticles 60 and 61 of the African Charter onHuman and Peoples’ Rights recognize regionaland international human rights instruments andAfrican practices consistent with internationalnorms on human and people’s rights as beingimportant reference points for the application andinterpretation of the African Charter.

10 This obligation is embedded in Article 1 of theCEDAW and in Article 2 in the Protocol to theAfrican Charter on the Rights of Women.

11 The Commission of Enquiry into AppropriateAgricultural Land Tenure Systems (referred to asthe Rukuni Commission 1994).


12 Recommendations 8.8.1, 8.8.3, 8.8.4 and 8.8.5,Rukuni Commission (1994).

13 There is a substantial literature on differentdimensions of Zimbabwe’s water policies andwater reform, including Derman et al., 2001;Dube and Swatuk, 2002; Derman and Gonese,2003; Mtisi and Nicol, 2003; Bolding et al., 2004;Hellum and Derman, 2005, among others.

14 These are the Sanyati, Manyame, Mazowe, Save,Runde, Mzingwane and Gwayi.

15 Water Act 1998 section 32 (1).16 In accordance with section 41 in the ZINWA Act,

the Minister may, in consultation with theapproval of the Minister responsible for finance,by statutory instrument, impose a water levy onany person holding a permit issued in terms of theWater Act (Chapter 20, p. 24).

17 Derman Research Notes, February 2000. At aMazowe Catchment Council meeting there was adiscussion on whether to ask the Centre forApplied Social Sciences to suggest a definition forcommercial water. This discussion ended whenthe Council’s Chair suggested the technologicaldefinition.

18 There has been a large decline in support tocommunal areas due to the emphasis upon landacquired during the Fast Track Land ResettlementProgramme.

19 Mhondoro Communal Land is situated in theChegutu district, which is made up of commercialfarm, small-scale commercial, communal, resettle-ment and urban areas 120 km west of Harare. Themajor river that flows through this high plateau

area is known as the Mupfure. It is part of the largerSanyati River Catchment south-east of Harare andflows through communal and commercial land,including the city of Chegutu.

20 The norms of sharing and potential sanctions existin those areas of the three catchments where theCASS water research team has been working.

21 There is an intense debate on the degree andextent to which access to land can be obtainedthrough kin ties and networks and the extent towhich it is being concentrated and accesscontrolled by an emergent property class (Berry,2002; Peters, 2004). Increasing land concentra-tion and control will have significant conse-quences for access to water.

22 The process of decreasing dependence upon agri-culture alone has been called de-agrarianizationby Deborah Bryceson, 1999.

23 CASS BASIS survey data, CASS 2000–2001.24 As noted earlier, dambo or wetlands cultivation is

quite old, but dry-season gardens are recent.25 ‘Informal irrigation’ land constitutes the vast

majority of irrigated lands in Zimbabwe’s commu-nal areas. Yet the Irrigation Strategy of 1994, whichwas carried out in preparation for water reform,focused only on government-sponsored formalirrigation schemes that comprised only 2000 ha atthat time (Zimbabwe Government, 1994).

26 This is not straightforward. Sithole (1999, p. 80)writes: ‘It seemed impossible for women and menfor that matter to think about ownership in termsof this belonging to this one or that one.’


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Documents

15 Intersections of Law, Human Rights and Water …...rights and equity (Salman and McInerney-Lankford, 2004). It would seem that the many elements of the global system are catching