Community-based Water Law and Water Resource Management ... · water laws in Africa, Latin America and Asia and critically examine the interface between community-based water laws,

Community-based Water Law and Water Resource Management Reform in

Developing Countries

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Community-based Water Law and WaterResource Management Reform in

Developing Countries

Edited by

Barbara van Koppen

Mark Giordano

and

John Butterworth

CABI is a trading name of CAB International

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Library of Congress Cataloging-in-Publication Data

Community-based water law and water resource management reform indeveloping countries / edited by Barbara van Koppen, Mark Giordano andJohn Butterworth.

p. cm. -- (Comprehensive assessment of water management inagriculture ; 5)

Includes bibliographical references and index.ISBN 978-1-84593-326-5 (alk. paper)

1. Water--Law and legislation--Developing countries. 2. Water resources development--Developing countries. I. Koppen, B. C. P. van (Barbara C. P.) II. Giordano, Mark. III. Butterworth, John. IV. Series: Comprehensive assessment of water management in agriculture series ; 5.

K3496.C66 2008

346.04'691--dc22 2007021936

ISBN-13: 978 1 84593 326 5

Produced and typeset by Columns Design Ltd, Reading, UKPrinted and bound in the UK by Biddles Ltd, King’s Lynn

www.cabi.org

Contents

Contributors vii

Preface ix

Series Foreword xi

Foreword xiii

Abbreviations and Acronyms xv

1 Community-based Water Law and Water Resource Management 1Reform in Developing Countries: Rationale, Contents and Key MessagesBarbara van Koppen, Mark Giordano, John Butterworth and Everisto Mapedza

2 Understanding Legal Pluralism in Water and Land Rights: Lessons from 12Africa and AsiaRuth Meinzen-Dick and Leticia Nkonya

3 Community Priorities for Water Rights: Some Conjectures on 28Assumptions, Principles and ProgrammesBryan Bruns

4 Dispossession at the Interface of Community-based Water Law and 46Permit SystemsBarbara van Koppen

5 Issues in Reforming Informal Water Economies of Low-income Countries: 65Examples from India and ElsewhereTushaar Shah

6 Legal Pluralism and the Politics of Inclusion: Recognition and 96Contestation of Local Water Rights in the AndesRutgerd Boelens, Rocio Bustamante and Hugo de Vos

7 Water Rights and Rules, and Management in Spate Irrigation Systems in 114Eritrea, Yemen and PakistanAbraham Mehari, Frank van Steenbergen and Bart Schultz

v

8 Local Institutions for Wetland Management in Ethiopia: Sustainability 130and State InterventionAlan B. Dixon and Adrian P. Wood

9 Indigenous Systems of Conflict Resolution in Oromia, Ethiopia 146Desalegn Chemeda Endossa, Seleshi Bekele Awulachew, Regassa Ensermu Namara,Mukand Singh Babel and Ashim Das Gupta

10 Kenya’s New Water Law: an Analysis of the Implications of Kenya’s 158Water Act, 2002, for the Rural PoorAlbert Mumma

11 Coping with History and Hydrology: How Kenya’s Settlement and Land 173Tenure Patterns Shape Contemporary Water Rights and Gender Relations in WaterLeah Onyango, Brent Swallow, Jessica L. Roy and Ruth Meinzen-Dick

12 Irrigation Management and Poverty Dynamics: Case Study of the 196Nyando Basin in Western KenyaBrent Swallow, Leah Onyango and Ruth Meinzen-Dick

13 If Government Failed, how are we to Succeed? The Importance of History 211and Context in Present-day Irrigation Reform in MalawiAnne Ferguson and Wapulumuka Mulwafu

14 A Legal–Infrastructural Framework for Catchment Apportionment 228Bruce Lankford and Willie Mwaruvanda

15 Intersections of Law, Human Rights and Water Management in Zimbabwe: 248Implications for Rural LivelihoodsBill Derman, Anne Hellum, Emmanuel Manzungu, Pinimidzai Sithole and Rose Machiridza

Index 271

vi Contents

Contributors

Seleshi Bekele Awulachew, International Water Management Institute (IWMI), ILRI-Ethiopiacampus, PO Box 5689, Addis Ababa, Ethiopia; e-mail: [email protected]

Mukand Singh Babel, School of Civil Engineering, Asian Institute of Technology, PO Box 4,Khlong Luang, Pathumthani 12120, Thailand; e-mail: [email protected]

Rutgerd Boelens, General Coordinator of the WALIR Program and Researcher withWageningen University and Research Centre, Wageningen, Netherlands; e-mail: [email protected]

Bryan Bruns, Consulting Sociologist, Santa Rosa Beach, Florida, USA; e-mail: [email protected]

Rocio Bustamante, Coordinator for WALIR in Bolivia and Researcher with Centro AGUA, SanSimon University, Cochabamba, Bolivia; e-mail: [email protected]

John Butterworth, IRC International Water and Sanitation Center, Delft, Netherlands; e-mail:[email protected]

Bill Derman, Professor of Anthropology, Michigan State University, East Lansing, Michigan,USA and Fulbright Visiting Professor, Department of International Development andDevelopment Studies (NORAGRIC), Norwegian University of Life Sciences, Norway; e-mail:[email protected] or [email protected]

Alan B. Dixon, Department of Geography, University of Otago, PO Box 56, Dunedin, NewZealand; e-mail: [email protected]

Hugo de Vos, Freelance Researcher on Institutional Aspects of Natural Resource Management inLatin America; e-mail: [email protected]

Desalegn Chemeda Edossa, PO Box 19, Haramaya University, Ethiopia; e-mail: [email protected]

Anne Ferguson, Department of Anthropology, Michigan State University, East Lansing,Michigan, USA; e-mail: [email protected]

Mark Giordano, Head: Institutions and Policies Research Group, International Water Manage-ment Institute (IWMI), Colombo, Sri Lanka; e-mail: [email protected]

Ashim Das Gupta, School of Civil Engineering, Asian Institute of Technology, PO Box 4,Khlong Luang, Pathumthani 12120, Thailand; e-mail: [email protected]

Anne Hellum, Faculty of Law, University of Oslo, 0130, Oslo, Norway; e-mail: [email protected]

Bruce Lankford, School of Development Studies, University of East Anglia, Norwich, UK; e-mail: [email protected]

vii

Rose Machiridza, Department of Soil Science and Agricultural Engineering, University ofZimbabwe, Box MP 167, Mount Pleasant, Harare, Zimbabwe; e-mail: [email protected]

Emmanuel Manzungu, Department of Soil Science and Agricultural Engineering, University ofZimbabwe, Box MP 167, Mount Pleasant, Harare, Zimbabwe; e-mail: [email protected]

Everisto Mapedza, Researcher in Policies and Institutions, International Water ManagementInstitute (IWMI), Southern Africa Regional Programme, PBag X813, Silverton 0127, SouthAfrica; e-mail: [email protected]

Abraham Mehari, PhD Research Fellow in Land and Water Development, UNESCO-IHE,Netherlands; e-mail: [email protected] or [email protected]

Ruth Meinzen-Dick, International Food Policy Research Institute (IFPRI), 2033 K Street NW,Washington, DC 20006, USA; e-mail: [email protected]

Wapulumuka Mulwafu, History Department, Chancellor College, University of Malawi, POBox 280, Zomba, Malawi; e-mail: [email protected]

Albert Mumma, Faculty of Law, University of Nairobi, Parklands Campus, PO Box 30197,Nairobi, Kenya; e-mail: [email protected]

Willie Mwaruvanda, Rufiji Basin Water Office, Ministry of Water and Livestock Development,Iringa, Tanzania; e-mail: [email protected]

Regassa Ensermu Namara, Economist, International Water Management Institute (IWMI),PMB, CT 112, Cantonments Accra, Ghana; e-mail: [email protected]

Leticia Nkonya, Department of Sociology, Anthropology and Social Work, Kansas StateUniversity, 204 Waters Hall, Manhattan, Kansas 666502-4003, USA; e-mail:[email protected]

Leah Onyango, Lecturer in Urban and Regional Planning, Maseno University, Private MailBag, Maseno, Kenya and Graduate Attachment, World Agroforestry Centre; e-mail:[email protected]

Jessica L. Roy, former PhD Student at the University of California–Santa Cruz, USA andGraduate Attachment, World Agroforestry Centre (ICRAF); she died in August 2004 whileconducting field research reported in this book.

Bart Schultz, Professor of Land and Water Development, UNESCO-IHE; Top Advisor,Rijkswaterstaat, Civil Engineering Division, Utrecht, Netherlands; and President Honorary of theInternational Commission on Irrigation and Drainage (ICID); e-mail: [email protected]

Tushaar Shah, Principal Scientist, International Water Management Institute (IWMI), South AsiaProgram, Anand Office, Anand, Gujarat, India 388001; e-mail: [email protected]

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

Brent Swallow, Theme Leader for Environmental Services, World Agroforestry Centre (ICRAF),PO Box 30677, Nairobi, Kenya; e-mail: [email protected]

Barbara van Koppen, Principal Scientist, International Water Management Institute (IWMI),Southern Africa Regional Programme, PBag X813, Silverton 0127, South Africa; e-mail:[email protected]

Frank van Steenbergen, MetaMeta Research, Paarskerkhofweg, 5223 AJ’s-Hertogenbosch,Netherlands; e-mail: [email protected]

Adrian P. Wood, Centre for Wetlands, Environment and Livelihoods, University of Huddersfield, Queensgate, Huddersfield, HD1 3DH, UK; e-mail: [email protected]

viii Contributors

Preface

Water resource management reform today emphasizes user participation. However, in developingcountry contexts the water laws and institutions which have followed from this reform haveconsistently ignored how people actually manage their water. Informal rural and peri-urban waterusers have managed their water resources for centuries and continue to respond to newopportunities and threats, often entirely outside the ambit of formal government regulation orinvestment. The community-based water laws which guide this informal management in fact governwater development and management by significant numbers of water users, if not the majority ofcitizens and the bulk of the poor, who depend on water for multiple uses for fragile agrarianlivelihoods. These community-based arrangements tend to have many of the people-based, pro-poor attributes desired in principle, if not always found in practice in current water managementreform agendas – they are typically robust, dynamic and livelihood-oriented, and often encompasspurposeful rule-setting and enforcement and provide incentives for collective action. At the sametime, they can also be hierarchical and serve to entrench power and gender disparities.

Ignoring community-based water laws and failing to build on their strengths, while overcomingtheir weaknesses, greatly reduce the chance of new water management regimes to meet theirintended goals. In contrast, when the strengths of community-based water laws are combinedwith the strengths of public sector contributions to water development and management, the newregimes can more effectively lead to sustainable poverty alleviation, gender equity and overalleconomic growth. Indeed, the challenge for policy makers is to develop a new vision in which theindispensable role of the public sector takes existing community-based water laws into fullaccount.

This book contributes to this new vision. Leading authors analyse living community-basedwater laws in Africa, Latin America and Asia and critically examine the interface betweencommunity-based water laws, formal water laws and a variety of other key institutionalingredients of ongoing water resource management reform.

Most chapters in the book were selected from papers presented at the international workshop‘African Water Laws: Plural Legislative Frameworks for Water Management in Rural Africa’, heldin Johannesburg, South Africa, 26–28 January 2005, co-organized by the International WaterManagement Institute (IWMI), the Department of Water Affairs and Forestry (DWAF) SouthAfrica, the National Resources Institute UK (NRI), and the Faculty of Law, University of Dar esSalaam, Tanzania (www.nri.org/waterlaw/workshop). The support given to this workshop by theComprehensive Assessment on Water Management in Agriculture, the Water ResearchCommission, South Africa, EU, DFID and CTA is gratefully acknowledged.

ix

www.nri.org/waterlaw/workshop

x Preface

The completion of this volume has been made possible, first of all, by the willing and punctualcontributions of the authors of the fifteen chapters. Kingsley Kurukulasuriya carefully andpromptly edited all chapters. The maps were designed by Simon White. Mala Ranawake, PavithraAmunugama, Nimal Attanayake and Sumith Fernando provided further indispensable editorialsupport. The editors are grateful for these contributions.

The Editors

Series Foreword: Comprehensive Assessment ofWater Management in Agriculture

There is broad consensus on the need to improve water management and to invest in water forfood to make substantial progress on the Millennium Development Goals (MDGs). The role ofwater in food and livelihood security is a major issue of concern in the context of persistentpoverty and continued environmental degradation. Although there is considerable knowledge onthe issue of water management, an overarching picture on the water–food–livelihoods–environ-ment nexus is required to reduce uncertainties about management and investment decisions thatwill meet both food and environmental security objectives.

The Comprehensive Assessment of Water Management in Agriculture (CA) is an innovativemulti-institute process aimed at identifying existing knowledge and stimulating thought on ways tomanage water resources to continue meeting the needs of both humans and ecosystems. The CAcritically evaluates the benefits, costs and impacts of the past 50 years of water development andchallenges to water management currently facing communities. It assesses innovative solutionsand explores consequences of potential investment and management decisions. The CA isdesigned as a learning process, engaging networks of stakeholders to produce knowledgesynthesis and methodologies. The main output of the CA is an assessment report that aims toguide investment and management decisions in the near future, considering their impact over thenext 50 years in order to enhance food and environmental security to support the achievement ofthe MDGs. This assessment report is backed by CA research and knowledge-sharing activities.

The primary assessment research findings are presented in a series of books that form thescientific basis for the Comprehensive Assessment of Water Management in Agriculture. Thebooks cover a range of vital topics in the areas of water, agriculture, food security and ecosystems– the entire spectrum of developing and managing water in agriculture, from fully irrigated to fullyrainfed lands. They are about people and society, why they decide to adopt certain practices andnot others and, in particular, how water management can help poor people. They are aboutecosystems – how agriculture affects ecosystems, the goods and services ecosystems provide forfood security and how water can be managed to meet both food and environmental securityobjectives. This is the fourth book in the series.

The books and reports from the assessment process provide an invaluable resource formanagers, researchers and field implementers. These books will provide source material fromwhich policy statements, practical manuals and educational and training material can beprepared.

The Comprehensive Assessment of Water Management in Agriculture calls for InstitutionalReform to address issues of equity, sustainability and efficiency in water resource use for

xi

agriculture. The assessment recognizes that effective reform has been elusive, and that reform isneeded in the reform process itself. This book focuses on the critical issue of institutional and legalwater arrangements that can strengthen poor rural women’s and men’s access to water and, thus,contribute to poverty reduction and gender equity. The book envisions a new role for the state ininformal rural economies in developing countries in which community-based water laws also playtheir full roles. The book assesses legal and institutional challenges based on in-depth empiricalanalyses of community-based water laws in Africa, Latin America and Asia.

The CA is carried out by a coalition of partners that includes 11 Future Harvest agriculturalresearch centres supported by the Consultative Group on International Agricultural Research(CGIAR), the Food and Agriculture Organization of the United Nations (FAO) and partners fromover 200 research and development institutes globally. Co-sponsors of the assessment, institutesthat are interested in the results and help frame the assessment, are the Ramsar Convention, theConvention on Biological Diversity, FAO and the CGIAR.

Financial support from the governments of The Netherlands and Switzerland, EU, FAO andthe OPEC foundation for the Comprehensive Assessment for the preparation of this book isappreciated.

David MoldenSeries Editor

International Water Management InstituteSri Lanka

xii Series Foreword

xii

Foreword

Barbara Schreiner

Deputy Director General, Department of Water Affairs and Forestry, South Africa

From space, our world is a blue planet, bathed in vast blue oceans, wrapped in water. It is, to allintents and purposes, a very wet planet. Like all things, however, the devil is in the detail. As youmove closer to the blue planet, the picture changes. You see that most of the vast rolling watersare salty, unfit for human use. On the land, rivers, aquifers, lakes, dams and wetlands and in theatmosphere, clouds contain the tiny proportion of water on which humans, many animals andplants survive. As humans, we are dependent on this fresh water for our survival. If you moveeven closer, however, you will see how unevenly distributed the water resources are. There areareas of land abundantly endowed with water. There are vast areas of land surface where there islittle, or no, water. As you move even closer, you might see how much water some sections of thepopulation have and how little others have. You might see areas of green-watered yards andswimming pools; you might see jumbles of shacks tightly packed in dusty, dry and barren areas. Ifyou have the right kind of telescope you might notice that it is the poor, in rural and urban areas,who truly experience water scarcity. It is the poor who have little, or no, access to water and thepoor who suffer the worst impacts of water pollution, droughts and floods.

It is at this point that you might realize that the management of our precious water resources isdeeply political, deeply influenced by issues of access to power. In the context of many developingcountries, it is also influenced by the juxtaposition of different water management paradigms. Inmany developing countries, the ‘official’ management systems for water stem from colonial andpost-colonial formal systems. At the local level, however, customary practices are still in place,managing water according to systems and practices that may be many, many decades old.

Understanding customary water management practices is important because they often definethe de facto institutional environment of the rural poor far more than the formal institutionalarrangements determined by legislation and government administration. Water is key toagriculture-based livelihoods. Over time, rural smallholders have devised many ways to developand manage local water resources, through wells, tanks, water harvesting, river diversions andsmall dams. The social capital manifest in customary arrangements embodies creativity, resilience,local appropriateness, broad compliance and ownership: in sum, the experience of centuries.

It would, however, be inappropriate to assume that local and customary systems are withoutproblems. Local communities have their own power dynamics, and are often divided by clan

xiii

allegiances, by gender and by levels of wealth. Such divisions may filter through into access towater and may perpetuate inequities at the local level.

There are thus often two parallel water-management paradigms – customary practices andformalized legal approaches. Both may have their strengths and their weaknesses. The two may,in some cases, be directly contradictory. For example, customary arrangements may entrenchinequities in access to water, such as gender inequities which relegate women to a secondary legalstatus, while the formal paradigm may require gender equity. Ethnic divides, often exploited forcolonial divide and rule, and clan-based access to power are other retrogressive elements ofcustomary systems that need to be changed. On the other hand, the formal legal arrangementsmay not support the needs of localized people on the ground. As some authors in this book havesuggested, formalized legal approaches may even, unintentionally, disadvantage the poor who donot have the necessary access to formal structures to make them work to their advantage.

Africa, in particular, shares a common history of externally imposed water legislation that havesystematically marginalized existing customary arrangements, including access to water andownership of land. This history urgently needs to be written from an African perspective,challenging the ever-enduring dominance of the European perspective in the history of Africanwater laws. The famous Kenyan author, Ngugi wa Thiongo, challenged Africans to decolonizetheir minds – a challenge that pertains equally in the arena of water legislation and managementparadigms.

As Africans and as citizens of developing countries, the challenge lies with us to take the bestof customary practices, the best of formal systems and to create, in the interests of the poorest ofour citizens, a water-management paradigm that is located in the needs and culture of our ownsocieties. This book brings together a wide range of experience to examine the benefits andchallenges of customary practices and their relationship to formal systems. It articulates, inparticular, an African perspective on managing water in the interests of the poor, the rural and themarginalized people of Africa and other developing countries. It is an important contribution tothe discourse on integrated water resources management, bringing the perspective of developingcountries clearly to the fore.

xiv Foreword

Abbreviations and Acronyms

$ – US dollar/sACTS – African Centre for Technology StudiesBATNA – Best alternative to a negotiated agreementBFA – Beneficiary farmer association (India)BIS – Bureau of Indian StandardsBPL – Below poverty lineBSAC – British South Africa CompanyCADA – Command Area Development Agency (India)CAPRI – Collective action and property rightsCASS – Center for Applied Social Studies (Zimbabwe)CBNRM – Community-based natural resources managementCBO – Community-based organizationCBS – Central Bureau of Statistics (Kenya)CC – Catchment Council (Zimbabwe)CDE – The Centre for Development and Environment (Switzerland)CEDAW – Convention on the Elimination of All Forms of Discrimination Against WomenCESCR – Convention on Economic, Social and Cultural RightsCMA – Catchment Management Authority (Malawi)CNA – Comisión Nacional del Agua (Mexico)CoE – Council of Elders (India)CONAIE – The Confederation of Indigenous Nationalities of EcuadorCONIAG – Consejo Interinstitucional del Agua (Bolivia)COTAS – Comités Técnicos de Aguas Subterráneas (Mexico)CRC – Convention on the Rights of the ChildCWUA – Catchment Water User Association (Tanzania)DANIDA – Danish International Development AgencyDEAP – District Environment Action Plan (Kenya)DFID – Department for International Development (UK)DSDO – District Social Development Officer (Kenya)DSE – German Foundation for International DevelopmentDWD – Department of Water Development (Kenya)ECLAC – United Nations Economic Commission for Latin America and the CaribbeanELWDP – Eastern Lowland Wadi Development Project (Eritrea)

xv

EMCA – Environmental Management and Coordination Act (Kenya)ESAP – Economic Structural Adjustment ProgrammeESCOM – Electricity Supply Commission of MalawiEWRP – Ethiopian Wetlands Research ProgrammeFAO – Food and Agriculture Organization of the United NationsFTLP – Fast-track Land Reform Program (Zimbabwe)GLC – Governments’ Land Commission (Pakistan)GOI – Government of IndiaGOM – Government of MalawiGTZ – German Technical CooperationHIV/AIDS – Human immunodeficiency virus/a(cquired) i(mmune) d(eficiency) s(yndrome)IAR – Irrigation Allocation RatioIAs – Institutional arrangementsICESCR – International Covenant on Economic, Social and Cultural RightsICRAF – World Agroforestry Centre (Kenya)IDI – Infrastructure Development Institute (Japan)IE – Institutional environmentIFAD – International Fund for Agricultural DevelopmentIFPRI – International Food Policy Research InstituteIIED – International Institute for Environment and DevelopmentIIP – Irrigation Improvement Project (Yemen)ILO – International Labour OrganizationIMF – International Monetary FundIMT – Irrigation management transferISI – Indian Standards InstitutionIWMI – International Water Management InstituteIWRM – Integrated Water Resources ManagementIWUA – Irrigation Water User Association (Tanzania)KA – Kebele administration (Ethiopia)LAB – Land Administration Body (Pakistan)LIFCA – Legal infrastructure framework for catchment apportionmentLVEMP – Lake Victoria Environment Management Programme (Kenya)MAS – Movimiento al Socialismo (Andes)MCP – Malawi Congress Party (Malawi)MOW – Ministry of Water (Tanzania)MOWLD – Ministry of Water and Livestock Development (Tanzania)MYP – Malawi Young Pioneers (Malawi)NEAP – National Environmental Action Plan (Kenya)NEMA – National Environmental Management Authority (Kenya)NEPAD – New Partnership for Africa’s DevelopmentNGO – Non-governmental organizationNIB – National Irrigation Board (Kenya)NIE – New Institutional EconomicsNNMLS – Northern New Mexico Legal ServicesNRM – Natural Resources ManagementNSSO – National Sample Survey Organization (India)NUFFIC – Netherlands Organization for International Cooperation in Higher EducationNWCPC – National Water Conservation and Pipeline Corporation (Kenya)ODG – Overseas Development Group (UK)PA – Peasant association or kebele (Ethiopia)PEAP – Provincial Environment Action Plan (Kenya)PIM – Participatory irrigation management

xvi Abbreviations and Acronyms

PIU – Provincial Irrigation Unit (Kenya)RBMSIIP – River Basin Management and Smallholder Irrigation Improvement Project (Tanzania)RBO – River Basin Office (Tanzania)RBWO – Rufiji Basin Water Office (Tanzania)RDC – Rural District Council (Zimbabwe)RDP – Rural Development Project (Malawi)RIM – Registry Index Map (Kenya)RLA – Registration of Land Act (Kenya)RO – Reverse osmosis (India)RSA – Republic of South AfricaSADC – Southern Africa Development CommunitySCC – Sub-catchment Council (Zimbabwe)SEB – State Electricity Board (India)SFT – Settlement Fund Trustee (Kenya)SIDA – Swedish International Development Cooperation AgencySLSA – Sustainable Livelihoods in Southern AfricaSMC – Scheme Management Committee (Malawi)SMUWC – Sustainable Management of the Usangu Wetland and its Catchment (Tanzania)SSP – Sardar Sarovar Project (India)SWMRG – Soil Water Management Research Group (Tanzania)TA – Traditional authority (Malawi)TCE – Transaction cost economicsTOEB – Tropical Ecology Support Programme (Germany)TTL – Tribal Trust Lands (Zimbabwe)UNDP – United Nations Development ProgrammeURT – United Republic of TanzaniaUSAID – United States Agency for International DevelopmentVSA – Village Service Area (India)WALIR Program – Water Law and Indigenous Rights ProgramWFP – World Food ProgrammeWHO – World Health OrganizationWMI – Wetland Management Institution (Ethiopia)WRMA – Water Resources Management Authority (Kenya)WRUA – Water Resources User Association (Kenya)WSB – Water Service Board (Kenya)WSP – Water Service Provider (Kenya)WSRB – Water Service Regulatory Board (Kenya)WTF – Water Trust Fund (Kenya)WUA – Water User AssociationZCTU – Zimbabwe Congress of Trade UnionsZINWA – Zimbabwe National Water Authority

Abbreviations and Acronyms xvii

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1 Community-based Water Law and WaterResource Management Reform in Developing

Countries: Rationale, Contents and Key Messages

Barbara van Koppen,1* Mark Giordano,2** John Butterworth3*** andEveristo Mapedza1****

1International Water Management Institute, Southern Africa Regional Programme,Silverton, South Africa; 2Head: Institutions and Policies Research Group, International

Water Management Institute, Colombo, Sri Lanka; 3IRC International Water andSanitation Center, Delft, Netherlands; e-mails: *[email protected];

**[email protected]; ***[email protected]; ****[email protected]

Abstract

Water resources management reform in developing countries has tended to overlook community-based waterlaws, which govern self-help water development and management by large proportions, if not the majority, ofcitizens: rural, small-scale water users, including poor women and men. In an attempt to fill this gap, globalexperts on community-based water law and its interface with public sector intervention present a varied collec-tion of empirical research findings in this volume. The present chapter introduces the rationale for the volumeand its contents. It further identifies key messages emerging from the chapters on, first, the strengths and weak-nesses of community-based water law and, second, the impact of water resources management reform oninformal water users’ access to water and its beneficial uses.

Impacts vary from outright weakening of community-based arrangements and poverty aggravation or miss-ing significant opportunities to better water resource management and improved well-being, also among poorwomen and men. The latter interventions combine the strengths of community-based water law with thestrengths of the public sector. Together, these messages contribute to a new vision on the role of the state inwater resources management that better matches the needs and potentials of water users in the informal watereconomies in developing countries.

Keywords: community-based water law, water reform, developing countries, IWRM, public sector.

Rationale for This Volume

Since the late 1980s, an unprecedented reformof water resource management has taken placeacross the globe, as heralded by events such asthe declaration of the Dublin Principles in 1992.Worldwide, this reform has radically redefined

the role of the public sector, with the state’sconventional primary role as investor in waterinfrastructure being questioned. Partly as aresult of these policy changes, public invest-ments in water have declined in the expectationthat the private sector would step in to fill thegap. Existing irrigation schemes have been

© CAB International 2007. Community-based Water Law and Water Resource ManagementReform in Developing Countries (eds B. van Koppen, M. Giordano and J. Butterworth) 1

transferred from government control to users,while privatization of the domestic water sectorhas been encouraged. Thus, the role of thestate has shifted more towards that of regulator,promoting decentralization and users’ partici-pation.

In order to fulfil their regulatory roles, stateshave promoted measures such as the strengthen-ing of formal administrative water rights systems,cost recovery and water pricing (the ‘user pays’principle), the creation of new basin institutionsand better consideration of the environment (the ‘polluter pays’ principle). Together, this set of regulatory measures is usually referred to as ‘Integrated Water Resources Management’(IWRM).

Although the emphasis on users’ participa-tion suggests otherwise, water resourcesmanagement reform has paid little attention tocommunity-based water laws in rural areaswithin developing countries. Community-basedwater law is defined as the set of mostly infor-mal institutional, socio-economic and culturalarrangements that shape communities’ devel-opment, use, management, allocation, qualitycontrol and productivity of water resources.These arrangements, anchored in the wisdomof time, are embedded in local governancestructures and normative frameworks of kinshipgroups, smaller hamlets, communities andlarger clans and groupings with common ances-try. In developing countries, they often existonly in oral form.

Reformers have tended to ignore, frownupon or even erode community-based waterlaw as they have pushed forward the IWRMprinciples. This is startling, because thesearrangements govern the use of water by largeproportions, if not the majority, of the world’scitizens: the rural women and men, often poor,who, in self-help mode, use small amounts ofwater as vital inputs to their multifaceted, agri-culture-based livelihoods. Moreover, reforms indeveloping countries have often been financedby bilateral and international donors andfinanciers whose main aim is the use of waterfor improving the well-being of precisely theseinformal users.

Recently, the confidence with which IWRMand its redefined role of the state was promotedhas started dwindling. In sub-Saharan Africa,major players like the World Bank, African

Development Bank and the New Partnership forAfrica’s Development (NEPAD) recognize againthat ‘re-engagement’ in investments in agri-cultural water management, besides domesticsupplies, is warranted. The private sector has nottaken up this conventional public sector role.Farmers’ protests against the new laws in LatinAmerica (see Boelens et al., Chapter 6, thisvolume) are echoed by African water lawyersconcerned about the dispossession of customarywater rights holders under the introduction ofpermit systems (Sarpong, undated).

Academic critiques are also emerging andargue that, while the typical ingredients ofIWRM may work in the formalized watereconomies of industrialized countries, they areinappropriate in the informal water economiesof the developing world (Shah and Van Koppen,2006). As a result, there is a renewed and grow-ing call for a new vision on a more refined roleof the state and other public and civil sectorentities in water resources management in theinformal sectors in developing countries.

This volume seeks to contribute to develop-ing such a vision on the role of the state inwhich, for the first time, community-basedwater arrangements play their full roles. Clearly,both the public sector and community-basedwater arrangements have their strengths andweaknesses, and the key question is not whichone is best, but rather which combination ismost appropriate to address needs in specificareas and in particular for those most at risk:rural poor women and men.

Finding an appropriate mix requires, first ofall, a better understanding of community-basedwater law itself. Academic understanding ofcommunity-based water law has grown signifi-cantly during the past decades (cf. Von Benda-Beckmann, 1991; Shah, 1993; Ostrom, 1994;Yoder, 1994; Ramazzotti, 1996; Boelens andDávila, 1998; Bruns and Meinzen-Dick, 2000).While the focus in this research was previouslyon irrigation of field crops, the scope hasincreasingly widened to include homesteadgardening, domestic uses, livestock watering,silviculture, fisheries and even the integrateduse of multiple sources for multiple purposes(Bakker et al., 1999; Moriarty et al., 2004; VanKoppen et al., 2006).

Many questions concerning the strengths andweaknesses of community-based water arrange-

2 B. van Koppen et al.

ments are still open. To name a few: (i) how docommunities induce collective action in waterresources development and management andhow can their systems work at scales beyond thecommunity? (ii) How and under what conditionsdoes spontaneous innovation, an importantstrength of community-based water arrange-ments, spread? And (iii) what are critical weak-nesses of community-based arrangements wherethe public sector has a legitimate role in acting toenhance the human well-being through betteraccess to water and its beneficial uses? Answersto these and other questions will be indispens-able in identifying the practical implications ofcommunities’ strengths and weaknesses for thedesign of public policies and programmes.

The second requirement in finding a moreappropriate mix of community-based water lawand public sector intervention is a better under-standing of the interface between these two legalsystems and of the strengths and weaknesses ofthe public sector in meeting communities’genuine needs for improved welfare and produc-tivity. As community-based water law has gener-

ally been ignored up till now, positive, mixed oreven negative impacts of the imposition of stateregulations have mostly gone unnoticed as well.A better understanding of the current interfacewould allow for the design of more appropriateand effective forms of public support that buildupon communities’ strengths, while overcomingtheir weaknesses.

In this volume, global experts bring richempirical evidence together on these two coreissues: community-based water law and itsinterface with the state and other external agen-cies. As shown in Fig. 1.1, the locations fromwhich the studies draw and according to whichthey are organized are diverse. The first set ofchapters take a broad approach, looking acrosslow- and middle-income countries in sub-Saharan Africa, Asia and Latin America, includ-ing some comparison with high-incomecountries. The second set covers areas outsideAfrica including Latin America, India, Mexicoand China, as well as the particular case of aridzones and spate-irrigation. The remaining stud-ies, organized in alphabetical order by country,

Management Reform in Developing Countries 3

Fig. 1.1. Countries featured in this volume.

focus on Africa, the continent with the largestproportion of informal, rural, small-scale waterusers.

The following section provides a briefoverview of the contents of all chapters. Takingthe findings from the large diversity of sites withtheir varying foci on aspects of community-based water law and public water developmentand regulation together, some key messagescan be derived, as presented in the thirdsection. These messages highlight the strengthsand weaknesses to be found in community-based water law and contribute to an emergingvision of the role of the state in water resourcesmanagement in the informal water economiesin developing countries.

Contents of the Chapters

Chapter 2, by Ruth Meinzen-Dick and LeticiaNkonya, sets the scene of pluralistic legal frame-works for water management, conflicts andwater law reform, and explores the linksbetween land and water rights. It uses examplesfrom Africa and Asia.

In Chapter 3, Bryan Bruns focuses on thenegotiation of water rights at the basin scale. Hecompares communities’ perspectives and prior-ities with the assumptions that underpin currentformal measures for basin-scale water alloca-tion. The chapter identifies a set of measures forcommunity involvement in basin managementthat would fit communities’ own priorities andstrategies significantly better.

Chapter 4, by Barbara van Koppen, discussesthe entitlement dimensions of permit systems.Tracing the roots in Roman water law and thehistorical development of permit systems in high-income countries, she highlights differences inEurope’s colonies in Latin America and sub-Saharan Africa. In the latter, permit systems wereprimarily introduced to serve the goal of divest-ing indigenous users of their prior claims.Current water law revisions promoted as IWRMin these two southern continents risk revivingdispossession of informal rural water users.

In Chapter 5, Tushaar Shah makes anencompassing analysis from the perspective ofnew institutional economics of the institutionalenvironment of formal water reform and thewidely prevailing institutional arrangements in

informal water economies in India, also takingexamples from Mexico, China and Africa. Fromthe analysis of a range of water institutions inIndia it appears that the transaction costs arelow and the pay-offs high in the case of sixlargely ignored major self-help initiatives andone potential indirect public measure. Incontrast, irrigation management transfer, waterpolicy formulation, water regulation throughpermits and seven other formal regulatorymeasures entail either excessive transactioncosts or lack pay-off or both. The conclusion isthat, in informal water economies, the stateshould: (i) support high-performing infrastruc-tural development in a welfare mode; (ii)promote institutional innovations that reducetransaction costs and restructure incentive struc-tures; (iii) better exploit indirect measures; and(iv) improve performance in the formalizingsectors.

In the next chapter, Rutgerd Boelens, RocioBustamante and Hugo de Vos discuss the inter-face between indigenous and formal waterrights (permit systems) in Andean societies inLatin America. Evidence from a number ofcases highlights the problematic ‘politics ofrecognition’ and the need for critical analysis ofthe power relations underpinning both legalsystems.

Chapter 7, authored by Abraham Mehari,Frank van Steenbergen and Bart Schultz,compares indigenous spate irrigation arrange-ments in Eritrea, Yemen and Pakistan. Theauthors document the fair and well-enforcedrules through which farmer groups have madeoptimal use of highly variable floods forcenturies. The need for the public sector tobuild upon these strengths of community-basedwater laws is illustrated.

The first of the chapters that focus onAfrican countries, Chapter 8, analyses the intri-cate collective arrangements for wise wetlanduse in west Ethiopia and the historically evolv-ing interface with external landlords andgovernment agencies. In this chapter, AlanDixon and Adrian Wood identify effective fall-back authority for rule enforcement as thegreatest strength brought about by past externalrulers and government, but this role is decliningnowadays.

In Chapter 9, Desalegn Chemeda Edossa,Seleshi Bekele Awulachew, Regassa Ensermu


Namara, Mukand Singh Babel and Ashim DasGupta provide a detailed analysis of the thegadaa system. This traditional age- and gender-based socio-political system of the Boran inSouth Ethiopia also influences community-based water laws, in particular conflict resolu-tion. The authors recommend government tobuild upon, instead of weakening, the gadaasystem.

In Chapter 10, Albert Mumma analyses theimplications of Kenya’s new Water Act of 2002for the rural poor. This centralized law fails torecognize pluralistic legal frameworks. Examplesinclude the requirements for permits for wateruse, which are open only for those with formalland title, so excluding the majority living undercustomary land tenure. Water service providers,including informal self-help groups, are requiredto formalize as businesses. Hence, the authorexpects limited effectiveness of the Act in meet-ing the needs of the poor.

Chapter 11, by Leah Onyango, BrentSwallow, Jessica L. Roy and Ruth Meinzen-Dick, discusses the variation in Kenya’s waterand land rights regimes, including women’srights, as a result of pre-colonial, colonial, andpost-colonial land and water policies. Focusingon the Nyando basin, seven different landtenure systems are distinguished and docu-mented, each with specific water rights and withvarying influences of customary arrangements.

In Chapter 12, Brent Swallow, Leah Onyangoand Ruth Meinzen-Dick focus on poverty trendsand three pathways of irrigation and relatedwater resources management arrangements inthe same Nyando basin in Kenya. They analysehow recent state withdrawal in the top-downplanning scheme led to scheme collapse andpoverty aggravation. Schemes served by thecentralized agency partially continued andpoverty remained relatively stable, while povertyincreased slowly in areas with unregulated irriga-tion in mixed farming.

Chapter 13, by Anne Ferguson andWapulumuka Mulwafu, analyses the history ofirrigation development and also the ongoingirrigation management transfer in two schemesin Malawi, which contributed significantly tolivelihoods. Lack of clarity on new responsibili-ties and lack of training open the door forcustomary arrangements to resurface and forlocal elites to capture land and water resources.

Chapter 14 turns to Tanzania. Bruce Lankfordand Willie Mwaruvanda elaborate a legal infra-structural framework for catchment apportion-ment for upstream–downstream water sharingthat combines Tanzania’s formal water rightssystem with local informal rights in the UpperGreat Ruaha catchment. Various technicaldesigns of intake structures are discussed to iden-tify the design for proportional sharing that bestfits the hydrology, users’ local, transparent andfair water sharing, and also the implementation offormal water rights.

In the last chapter, Zimbabwe’s customarylegal systems for basic domestic and productivewater uses are compared with the history offormal water law by Bill Derman, Anne Hellum,Emmanuel Manzungu, Pinimidzai Sithole andRose Machiridza. As argued, the livelihood orien-tation of customary arrangements aligns well withthe priority right for ‘primary water uses’ innational law and also with the expanding defini-tions of the human right to water at global levels.

Key Messages

With such a large number of chapters coveringso many aspects of water resources manage-ment and so large a geographic area, exhaus-tive systematic comparison on the issuesinvolved is impossible. Nonetheless, there is aremarkable consistency in the findings in anumber of key areas. Here, we highlight keymessages emerging from an analysis of theevidence across the chapters.

Community-based laws are both robust and dynamic

Community-based water law has shown asurprising ability to both endure and adapt.These are both key attributes of any successfulinstitution and should be considered as thebasis for, rather than impediments to, additionalchange and improvement. Centuries-old know-ledge and institutions that are adapted to place-specific ecological characteristics of water andother natural resources and the time-testedsustainable uses of these resources haveallowed communities to survive from agricul-ture, often in harsh ecological environments.


Community-based laws have adapted to,and driven, changing water environments.Much innovation in water development andmanagement has occurred entirely outside theambit of the state and state regulation, forexample as a result of growing populationdensities, new pumping technologies and watermarkets, remittances from off-farm employ-ment or new output markets. Innovationoccurred not only to expand water supply butalso to regulate increasing conflicts over watersharing.

Community-based laws have also adapted tothe influence of the state. The penetration of thestate to the local level, in particular in rural areas,is generally weak but this varies around theworld. In places like China, there is substantiallymore connection between local and nationalpolitical bodies than elsewhere. For example, insub-Saharan Africa the ‘traditional’ tribal author-ities that command land, water and other naturalresources often exist side by side with the decen-tralized ‘modern’ state represented by theupcoming elected local government (Mamdani,1996). State influence is especially strong insettlement irrigation schemes; nevertheless,customary elements continue to some extent.

Despite their robustness and dynamism,informal arrangements in rural economies ontheir own may be insufficient to achieve higherstandards of welfare or to cope with majoradverse trends, e.g. growing population density,urbanization and out-migration, adverse markets,pandemics, animal disease, civil strife or droughtsand floods.

Community-based laws have applicationoutside the community, but with limits

Unlike the widespread assumption that commu-nity-based water law is necessarily confined torestricted territories, community-based water lawalso operates at larger scales. The pastoralists insub-Saharan Africa – a familiar example – whosewater use agreements with each other andsettled farmers cover large areas, are also cross-ing international boundaries. Community rulescan also respond to today’s growing waterscarcity at scales beyond the community. Thespontaneous groundwater recharge movementin India, for example, is massive. Similarly, in the

face of increasing abstractions from sharedstreams, communities in Tanzania initiatedupstream–downstream rotations based oncustomary intra-scheme practices. Communities’methods for negotiating with distant, powerfullarge-scale users and for protecting their existingand new water uses, strategically soliciting statesupport, are also illustrated in Bolivia.

A more general pattern of how communitiesmay deal with larger-scale water issues has beendeveloped by Bruns (Chapter 3). He expectscommunities to: (i) focus on concrete problemsor ‘problemsheds’, especially during crises; (ii)to build strategic coalitions at wider scales basedon local water allocation practices and disputeresolution processes; (iii) to seek representation,and not participation by all, in multiple forumsthat cover the larger scales; (iv) to welcomescientific expertise that demystifies and synthe-sizes information; and (v) to seek legal supportto translate their concrete demands into terms offormal law that defends their demands withstate authority.

Understanding and building on these spon-taneous problem-solving alliances at largescales are indispensable, although often notsufficient, for equitable and pro-poor publicintervention in water sharing across scales.

Community-based laws have livelihoodsorientations, but entrench hierarchies

Community-based water law is centred onpeople’s immediate stake in water use. It seeks toenhance members’ livelihoods in a generally fairand equitable way. The absolute priority right towater of humans and animals to quench theirthirst is universal. In various places, communitiesalso prioritize water and land uses for otherdomestic uses and small-scale production, evenif that means providing right of way over ownland or handing over land to the community forwater resources development. Such norms at themost local levels on how water should be used tomeet basic human needs provide holistic andhumane guidance for the current efforts to betterdefine the human right to water at the highestlevel: the United Nations.

Notions of fairness and equity are also mani-fest in the widespread norm that those construct-ing and installing infrastructure and contributing


to its maintenance in cash and kind have thestrongest, although not always exclusive, rights tothe water conveyed. This principle for establish-ing ‘hydraulic property’ ensures security for thefruits of investments. Also, sharing of water andits benefits under growing competition is oftenproportional. As water becomes scarce, eachuser takes a smaller share rather than somemaintaining their shares while others get nothing.Norms and practices to prevent pollution alsoexist in community-based laws.

‘Localized principles used to manage waterand mitigate conflict could also provide valu-able lessons for those dealing with water at theinternational level’ (Wolf, 2000, cited inChapter 2) – or, we would argue, at any level.This is not to say that community-basedsystems on their own are the best solution to theproblems of water governance at all scales. Noris it to say that some principles of differentcommunities will not clash as the scale of theproblem expands. However, also in such condi-tions, informal laws will be a sound basis fromwhich to search for new possible solutions.

One significant drawback of community-based water law is that every community is bothheterogeneous and hierarchical. Customarypractices entrench gender, age, ethnicity andclass differences. This is in sharp contrast to thegoals, if not always the practice, of most modernstates. Gender inequities are particularlypronounced. In many traditions, water gover-nance for productive uses is strictly a maledomain, excluding women from access to tech-nologies and construction of water supplies.This handicaps women not only in using waterfor own productive uses, but also in meeting thedisproportionate burdens of fetching water fordaily domestic use that society relegates towomen. The public sector has a critical role toplay in removing such inequities by targetingpolicies and other checks and balances.

Community-based laws both confound andassist enforcement and incentives

Rule setting and enforcement are the Achilles heelof any (water) law, and community-based waterlaws have both strengths and weaknesses in thisregard. One weakness of communities’ livelihoodorientation is that this also makes it morally more

difficult to hold other water users, relatives andneighbours, accountable to restricting water usefor livelihoods or to use the sanction of cuttingwater delivery to enforce agreed obligations, suchas tariff payment or maintenance contributions.

However, the problem of hierarchy incommunity-based water law can become anadvantage for law enforcement. In manyinstances, authoritative bodies dominated byolder men and nested in multi-scale authoritystructures are feared but accepted because oftheir power to enforce behaviour in thecommon interest with limited transaction costs.In other cases, government can provide a usefuladditional influence. It will often be the case thatthe mere presence of such authority will be suffi-cient to ensure compliance, allowing the prin-ciple of subsidiarity – the devolution of decisionmaking to the level closest to the resource – towork most of the time. Obviously, in order tomeet equity goals and reduce transaction costssimultaneously, the challenge is to develop insti-tutional devices to that end that are not basedon gender, age or ethnic discrimination.

A clear strength of many cases of commu-nity-based water law is the crafting of the rightincentive structures for those who deploy mostof the effort in the common interest. For taskslike ditch watching, policing, operating infra-structure, maintenance or revenue collection,rewards are provided, even though they oftenremain modest. These rewards are madedependent upon the performance of the tasks.

Another advantage of community-based lawis that rules are defined in terms that match thephysical characteristics of water resources. Localnorms related to water tend to be principles ratherthan rules, subject to recurring negotiationaccording to the ever-changing local conditions ofthis fugitive and variable resource. Even for spateirrigation, which captures highly unpredictableand variable floods coming from the mountainslopes, communities across countries have devel-oped robust rules accommodating this variability.

Water permit systems and other regulationshave eroded the advantages of

community-based laws

One IWRM measure that risks eroding thestrengths of community-based water law most


directly is the promotion of permit systems.Strengthening permit systems as the singleformal entitlement to water, and obliging rightsholders under other water rights regimes toconvert to permit systems, risks serving thesame purpose for which this legal device wasintroduced by the colonial powers, at least inLatin America and sub-Saharan Africa: dispos-session of existing prior claims to water by infor-mal users. Community-based water lawintrinsically differs from permit systems. Forexample, in community-based water law, wateris seen as a common property resource that isto be shared, while permits stipulate individualvolume-based use rights to state-owned water.It is naive to suppose that one legal system cansimply be replaced by another. Moreover, vest-ing formal rights on the mere basis of an admin-istrative act implicitly favours those proficient inand connected to administration.

Conditions attached to permits, e.g. formalland title or expensive registration require-ments, may discriminate explicitly. Forcingpermits on rural communities destroys precioussocial capital, creates the tragedy of thecommons and favours the administration-profi-cient at the expense of all others, most of allpoor women. A solution that is sometimesproposed is to allocate permits to collectivities,but this faces problems of defining the ‘collec-tivity’, ensuring genuine representation withoutelite capture and avoiding the ‘freezing’ of thedynamism of local arrangements. The chal-lenge is to recognize the coexistence of plurallegal entitlement systems without burden ofproof.

Permits are often also expected to serve asvehicles to impose obligations on water users,for example for taxation or for imposing capson resource use. This may work if well-resourced water departments target a limitednumber of formal large-scale users, but enforc-ing conditions on multitudes of informal waterusers appears unrealistic. Fiscal and other statemeasures or indirect measures are often moreappropriate.

Regulation under the banner of IWRM canalso harm informal rural communities or localentrepreneurs otherwise. Requiring sophisti-cated business plans for rural communities’ self-help water supply risks further underminingwell-functioning informal arrangements and

depriving the poorest communities of indis-pensable financial and technical support. Waterquality standards may have similar drawbacks.In these ways, regulatory IWRM measures seri-ously risk aggravating poverty and polarizinggender inequities.

Opportunities for taking the best fromcommunity-based law have been missed

Hard-wiring alien water-sharing rules

The key message emerging from another set ofpublic sector interventions is that they meetcommunities’ needs, but only partially, becausecritical components – either combinations oftechnologies and institutions or institutions ontheir own – fail to match communities’ arrange-ments. Examples include state-supportedimprovements of intake structures for riverabstraction or head works for spate irrigation.They have often succeeded in alleviating thelabour required for the repeated rebuilding oftraditional structures that typically wash awaywith strong flooding. However, these technicaldesigns tended to hard-wire sharing rules thatdeviated from locally prevailing norms. Thisintroduced new inequities. By building uponcommunity-based and community-endorsedrules for sharing, benefits can be considerablyenhanced.

Participatory irrigation management

A major missed opportunity in the past decade,leading to scheme deterioration and povertyaggravation, concerned participatory irrigationmanagement. The institutional ‘design’ under-pinning this move towards greater users’ partic-ipation often boiled down to the assumptionthat it is enough to bring water users together inassociations, often on paper only, irrespectiveof profoundly opposite interests. These newlycreated user associations were supposed toswiftly take over former state functions andtasks, including rule setting for water allocation,authority and enforcement, conflict resolution –e.g. between head- and tail-enders – and thecreation of incentives for those who weresupposed to take up, preferably on a voluntarybasis, the hard work of operation, mainte-


nance, cost recovery or conflict resolution.Especially in settlement schemes where stateinfluence had been strongest and the numbersof small farmers largest, schemes have entirelycollapsed and poverty been aggravated whengovernment withdrew.

In other cases, the users’ spontaneous par-ticipation was discouraged. State support canmatch local initiative well when states providefor bulk water supplies through main pipes orcanals, while local users take responsibility forthe connections to houses or fields. Yet, evenwhen the latter occurred on the users’ owninitiative, the state can discourage this andimpose newly built public distribution networksup to the field level instead.

In sum, there is a dire need for technical andinstitutional designs that match both farmers’initiatives and public sector abilities for con-struction, rehabilitation and co-management ofsmallholder irrigation schemes. Providing someform of fall-back authority may be the main rolefor the state that farmers ask for.

Basin institutions

The establishment of basin institutions isanother ingredient of IWRM that risks missingimportant opportunities by discarding commu-nity-based water law. These costly new institu-tions are supposed to allow for integratedplanning and implementation but they take upfunctions that local government, other spheresof government or communities themselves, alsoat larger scales, can also do and, often, moreeffectively.

Basin institutions entrench the bureaucraticdistinction between water for productive uses –to be managed as core IWRM by basin institu-tions – and water for domestic uses to be left tolocal government or the private sector. Thisdistinction complicates service delivery that takespeople’s multiple water needs from multiplesources as a starting point.

Last but not least, basin institutions arefollowing hydrological boundaries instead ofadministrative boundaries, because the sharingof limited water resources in one particularbasin is assumed to be the key task. Yet, waterresources are often abundant but underdevel-oped, in particular in sub-Saharan Africa,where less than 4% of water resources have

been developed (African Development BankGroup, 2007). For enhancing year-round stor-age and conveyance structures, there has rarelybeen any need for new, fully fledged basininstitutions.

Gender

Opportunities have also been missed withregard to redressing customary inequities.Instead of reducing hierarchies intrinsic tocommunity-based water law, public sector inter-vention has often reproduced or even polarizedhierarchies. One example is the weakening ofwomen’s land rights in matrilineal societiesduring the allocation of irrigation plots.Generally, in land and water titling, women’ssecondary rights in the bundle of customaryrights are ignored by concentrating all rights ofthe bundle of resource rights in men.Customary rights of way to streams, springs andother water points may also be weakened inthis way. Effective targeting approaches andpublic sector checks and balances are still to beimplemented consistently to meet the constitu-tional requirement of ending gender-, age- andethnicity-based discrimination.

We can get the technologies and institutions right

This volume also documents fruitful and replic-able public action in which the strengths of bothcommunity-based water law and public sectorintervention are combined and lead toimproved welfare and productivity, also amongpoor women and men. Government and otherexternal agencies can play a direct and indirectrole in enhancing access to technologies formultiple purposes year-round by providingtechnical support and smart subsidies or loansand by improving technical knowledge. Oneway to do so is by appointing engineers foradvising water users and local government.This volume also entails various examples ofappropriate institutional designs for rule settingand enforcement at low transaction costs andfor incentive structures that ensure perfor-mance-related reward for those carrying out thelegwork of collective action. Furthermore, bene-ficial use of water is fostered by simultaneously


addressing other factors that are important forrealizing the benefits of water use, includingtraining, inputs, markets and health education.

Conclusion

Community-based water law in Latin America,sub-Saharan Africa and Asia is a precious socialcapital with many strengths: robust resource useis adapted to the locality; rules are dynamic andresponsive to new opportunities but communi-ties also consciously and proactively addressupcoming problems at both local and largerscales; it is livelihood oriented, although hier-archical (and the latter may partially serve thegoal of rule enforcement); it has nested struc-tures for conflict resolution through rules thatmatch notions of fairness and the physicalcharacteristics of water resources. These char-acteristics are well in line with public-sectorgoals of enhancing well-being and productivityin rural areas, in particular among the poor.However, community-based water law is largelyignored by officialdom and professionals.

By empirically analyzing the interfacebetween community-based water law and

current IWRM measures, this volume also iden-tifies fields in which the public sector can playan important complementary role or should, inany case, avoid eroding the strengths ofcommunity-based water law or missing oppor-tunities to build upon those. The public sector iscritical in removing gender, age and ethnicbiases and in legally and factually protectingcommunities’ small-scale water uses. Wherewater is still underdeveloped, the most effectiveway the state can develop it is by reverting to itsconventional role as investor in infrastructure,but now in a genuinely participatory, inclusiveand gender-equitable mode of co-developmentand co-management that, yet, reduces transac-tion costs and provides incentives. Once waterresources are fully developed, equitable waterallocation needs to be negotiated at largerscales.

If this volume succeeds in conveying the needfor such a new vision on the role of the state inwater resource management for poverty allevia-tion and agricultural and economic growth indeveloping countries and in provoking thoughton how endeavours to reform the water resourcemanagement reform can be successful, it willhave served its purpose.


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Boelens, R. and Dávila, G. (1998) Searching for Equity. Conceptions of Justice and Equity in PeasantIrrigation. Van Gorcum and Co., Assen, Netherlands.

Bruns, B. and Meinzen-Dick, R. (2000) Negotiating Water Rights. SAGE, New Delhi, India.Mamdani, M. (1996) Citizen and Subject. Contemporary Africa and the Legacy of Late Colonialism.

Princeton Studies in Culture/Power/History, University Press, Princeton, New Jersey.Moriarty, P., Butterworth, J. and van Koppen, B. (2004) Beyond Domestic. Case Studies on Poverty and

Productive Uses of Water at the Household Level. IRC Technical Papers Series 41, IRC, NRI and IWMI,Delft, Netherlands.

Ostrom, E. (1994) Neither Market nor State: Governance of Common-pool Resources in the Twenty-FirstCentury. IFPRI Lecture Series, International Food Policy Research Institute, Washington, DC.

Ramazzotti, M. (1996) Readings in African Customary Water Law. FAO Legislative Study 58, Food andAgriculture Organization of the United Nations, Rome.

Sarpong, G.A. (undated) Customary Water Law and Practices: Ghana. www.iucn.org/themes/law/pdfdocuments/LN190805_Ghana.pdf

Shah, T. (1993) Ground Water Markets and Irrigation Development. Political Economy and Practical Policy.Oxford University Press, Mumbai, India.

Shah, T. and van Koppen, B. (2006) Is India ripe for integrated water resources management (IWRM)? Fittingwater policy to national development context. Economic and Political Weekly XLI (31), 3413–3421,India, 5–11 August 2006.

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Van Koppen, B., Moriarty, P. and Boelee, E. (2006) Multiple-use Water Services to Advance the MillenniumDevelopment Goals. IWMI Research Report 98, International Water Management Institute, ChallengeProgram on Water and Food, and International Water and Sanitation Center (IRC), Colombo, Sri Lanka.

Von Benda-Beckmann, K. (1991) Development, law and gender skewing: an examination of the impact ofdevelopment on the socio-legal position of women in Indonesia, with special reference to theMinangkabau. In: LaPrairie, C. and Els Baerends, E. (eds). The socio-legal position of women inchanging society. Journal of Legal Pluralism and Unofficial Law 30/31, 1990–1991. Foundation for theJournal of Legal Pluralism, Groningen, Netherlands.

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2 Understanding Legal Pluralism in Water and Land Rights: Lessons from

Africa and Asia

Ruth Meinzen-Dick1 and Leticia Nkonya21International Food Policy Research Institute (IFPRI), Washington, DC, USA;

e-mail: [email protected]; 2Department of Sociology, Anthropology and SocialWork, Kansas State University, Manhattan, Kansas, USA; e-mail: [email protected]

Abstract

Water rights, like the underlying resource itself, are fluid and changing; they necessarily connect people andthey can derive from many sources. Much of the property rights literature has focused on rights to land but, aswater rights are now receiving increasing attention from scholars and policy makers in developing countries, itis useful to examine the differences and similarities between land and water rights – as well as the linkagesbetween the two. Without an understanding of the range and complexity of existing institutions that shapewater use, efforts to improve water allocations may be ineffective or even have the opposite effects from thoseintended in terms of efficiency, environment, equity, empowerment and conflict reduction. Reforms need tocarefully consider the range of options available. This chapter reviews the multiple sources and types of waterrights and the links between land and water rights, using examples from Africa and Asia. It then examines theimplications for conflict and for water rights reform processes.

Keywords: water rights, land tenure, legal pluralism, customary law, conflict management, Africa, Asia.

Introduction

Two images are often associated with the term‘property rights’: (i) fixed stone walls – immo-bile, permanent and restricting access to theresource; or (ii) a title deed – a piece of paperwith a big seal affixed in a government office.Neither of these images, deriving from theEuropean tradition on land, is very helpful inunderstanding water rights, particularly inAfrica and Asia. Water rights, like the underly-ing resource itself, are fluid and changing; theynecessarily connect people and they can derivefrom many sources besides the government. Aswater rights are now receiving increasing atten-

tion from scholars and policy makers in developing countries, it is useful to examine thedifferences and similarities between land andwater rights – as well as the linkages betweenthe two.

A starting point for this analysis is to considerwhy property rights matter, and why attention towater rights has lagged behind attention to landrights. Reasons given for attention to propertyrights are often addressed under four ‘E’s and a‘C’: efficiency, environment, equity, empower-ment and conflict reduction.

● In terms of efficiency, the arguments areoften made that secure property rights areneeded to provide incentives to invest in a

© CAB International 2007. Community-based Water Law and Water Resource Management12 Reform in Developing Countries (eds B. van Koppen, M. Giordano and J. Butterworth)

resource. For water, this often means devel-oping and maintaining the infrastructure,such as a well or an irrigation canal.

● Environmental arguments are closelyrelated: property rights provide an incentiveto protect the resource and, without prop-erty rights that are enforced, resources oftenbecome degraded.

● Equity relates to the distribution of theresource, and can be defined in terms ofequality of access, particularly for meetingbasic needs, or in terms of distribution ofrights in proportion to the investments thatpeople make, or some combination thereof.The way rights are defined determineswhether people are included or excluded inthe control of a vital resource for their lives.Holding property rights is thus empoweringto individuals or groups, particularly controlrights that recognize authority over how theresource is managed.

● Clearly defined rights are also held to reduceconflicts over resources during scarcity,which is a matter of growing concern withdiscussions of ‘water wars’.1

Given this importance of property rights andof water, why has there not been more attentiongiven to rights over water? The induced innova-tion hypotheses argue that establishing effectiveproperty rights is costly so, as long as a resourceis abundant, there is little incentive or need todefine rights over it but, with increasingdemands and scarcity, there is pressure todefine rights (Alchian and Demsetz, 1973). Thisis seen in African history, where ‘frontier’ areaswith low population densities have generallyhad more loosely defined land rights than areasof high population densities and, as popula-tions increase, land rights become more specific(Besley, 1995; Otsuka and Place, 2001).

However, while changes in land tenure insti-tutions are more familiar, studied and debated,changes in water tenure have received lessattention. Nevertheless, we also see that wherewater is plentiful, people often do not evenknow or care who else may be sharing the sameriver, lake or aquifer. As populations grow,demands on water rise, for household use, agri-culture and industry. Those who use water areincreasingly affected by the actions of otherpeople. Coordination becomes more complex

and more crucial. In one way or another, waterrights institutions, and expectations about whatclaims to water are socially accepted as legiti-mate, are constituted by such competition,influencing people’s ability to obtain water.

However, water has several properties,meaning that water rights cannot be deter-mined in exactly the same way as rights to landand other resources. Water is mobile, and mostwater use depends on flows. After water isdiverted, some evaporates or is transpired byplants, but much water also runs back throughsurface channels and aquifers to be reusedfurther downstream. Cultivation of crops, plant-ing or cutting of trees, and other changes inland use transform the quantity and timing ofwater flows into and out of aquifers and rivers.While much land is dedicated to a single use,almost all water has multiple overlapping usesand users. All uses not only withdraw somewater, but also add something to the water thataffects the quality for users downstream, andchanges in water flows affect not only humanuses but also animals and the broader environ-ment. Rights to water and the consequentpatterns of use concern not only how muchwater is withdrawn but also water quality andthe environment.

The slippery nature of water itself makes itmore difficult to define water rights because ofthe need for so much specificity: who can usehow much water from what source, when andfor what purpose? This specificity, in turn,combined with the fugitive nature of theresource itself, increases the costs of monitoringand enforcing water laws. Instead of establish-ing rights once and for all, effective water rightsrequire active management of the resource andattention to many different aspects of its use,including quality and quantity, in differentplaces and times.

Improvements in water rights institutionscan help reduce poverty, improve economicproductivity and protect nature, but these loftygoals are often not achieved. Efforts to improvewater allocations may be ineffective or evenhave the opposite effects from those intended.In this chapter, we argue that to be effective,reforms need to be grounded in a good under-standing of social institutions that shape rightsto water; additionally, a careful assessment ofthe options available for improving water

Legal Pluralism in Water and Land Rights 13

management should be made, and a willing-ness shown by those involved to experiment,adapt and learn from experience. The diversityof culture, environment, economic activitiesand other conditions means there is no one bestway to improve water rights and water alloca-tion institutions. The best route to better watermanagement depends on where you are start-ing from, with many pathways available (Brunsand Meinzen-Dick, 2005).

From this standpoint, the increasing atten-tion to water rights in Asia and Africa is veryencouraging, particularly those efforts that seekto address the intricacy of rights over thiscomplex resource. The remainder of this chap-ter examines some of these complexities, andlessons that can be drawn, not only for watergovernance in those regions but for otherregions and other resources as well. We firstreview the multiple sources and types of waterrights and the links between land and waterrights, before examining the implications forconflict and water rights reform processes. Mostof the emphasis in the chapter is on how waterrights affect people, and hence we focus on thelocal level, but the concluding section on reformprocesses also addresses water rights at largerlevels.

Legal Pluralism in Water Rights

Property rights can be defined as: ‘the claims,entitlements and related obligations amongpeople regarding the use and disposition of ascarce resource’ (Furubotn and Pejovich,1972). Bromley (1992, p. 4) points out that:‘Rights have no meaning without correlatedduties … on aspiring users to refrain from use.’This means that property rights are not arelationship between a person and a thingbut are social relationships between peoplewith relation to some object (the property).Particularly in the case of water, rights also havecorresponding duties that apply to the holder ofthose rights – usually to use the water anddispose of wastes in a certain manner, andoften to provide money, labour or otherresources in maintaining the water supply.

The crucial point is that property rights areeffective (legitimized) only if there is some kindof institution to back them up. In many cases,

the state is a primary institution that backs upproperty rights, but this is not necessarily thecase. Irrigation or other water developmentprojects generate their own rules and regula-tions, which constitute yet another type of‘water law’. Most religions also have preceptsrelating to water that can provide the basis forentitlements or obligations regarding water.Particularly in the case of water rights, we findmany examples of customary law (whichchanges over time) that is backed by localauthority and social norms. User groups maydefine their own rules for a water point.

At the other end of the scale, internationaltreaties such as the Ramsar convention gener-ate yet another type of law that can provide abasis for placing claims on water resources, e.g.to prevent wetlands from being developed.Particularly in Africa, where so many countriesshare in international river basins, treaties andother international laws are relevant to the allo-cation of these shared waters.

The pluralism of water law is furtherincreased because each of these types of law –especially state, customary and religious – mayitself be plural. Government land laws oftencontradict water acts. Many communities havedifferent ethnic groups living side by side andusing the same water, but having different tradi-tions regarding its use. In particular, many siteshave farmers and pastoral groups, with differ-ent ways of life and ideas on water. The mix ofreligions adds to this plurality. All of these typesof law will be interpreted differently in differentplaces, generating a plethora of local laws.

These different types of water laws are notneatly separated; rather, they overlap and influ-ence one another. Nor are all equally powerful– their influence will vary. Figure 2.1 illustratesthese overlapping types of law, which can bethought of as force fields, with variablestrengths (Meinzen-Dick and Pradhan, 2002).

For example, customary law may be verystrong and state law virtually unknown or irrele-vant in a remote community with low migrationand low penetration of state agencies but, in aheterogeneous community with high migrationrates in the capital city, customary law may bemuch weaker than state law (as illustrated in theNyando basin, Kenya, by Onyango et al.,Chapter 11, this volume). In the case of ruralland rights in Africa, Bruce and Migot-Adholla

14 R. Meinzen-Dick and L. Nkonya

(1994) found that customary land tenurearrangements provided just as much tenuresecurity as government-issued title to theresource. Given the even higher costs of enforc-ing water rights (compared with land rights) andthe limitations of government agency capacity,especially in most rural areas, customary law,backed by local norms and community sanc-tions, may also be as effective as state law as abasis for claiming water rights in many parts ofAsia and Africa.

Bundles of Rights

As with rights over land or trees, water rights arenot usually homogeneous ‘ownership’ rightsthat permit one to do anything with theresource, but they may rather be considered asbundles of rights that may be held by differentparties. Indeed, because of the complex inter-relations between these individual rights andrights-holders, they could even be consideredas a ‘web of interests’ (Arnold, 2002, cited inHodgson, 2004). The exact definition of thesebundles varies, but they are often grouped intotwo broad categories: (i) use rights of accessand withdrawal; and (ii) decision-making rightsto regulate and control water uses and users,including the rights to exclude others, managethe resource or alienate it by transferring it toothers (Schlager and Ostrom, 1992). To thesemay be added the rights to earn income from a

resource, which Roman legal traditions havereferred to as usufruct rights (see also Alchianand Demsetz, 1973). Rights to earn incomefrom a resource (even without using it directly)can be separate from the use and managementof the resource, as when government depart-ments collect revenue from water users or whenindividuals or communities collect a chargefrom others who use water – a factor that isincreasingly important in the context of watertransfers.

An example from Kiptegan, a spring protec-tion site in the Nyando basin of Kenya, illus-trates this:

● Because of strong local norms that no oneshould be denied basic water needs, anyonehas the right to withdraw water from thepipe below the spring for drinking.

● People may also use water for their cattle,but only from the cattle trough, and they areexpected to help keep the trough clean.

● Those community members who have paidsome of the cost of developing the springprotection are entitled to a higher level ofservice, including, if hydrologically feasibleand they have paid for it, a piped watersupply to meet domestic needs and somesmall garden uses at their homestead, and tohave a say in selecting committee members.

● The members of the committee, who pro-vide additional time and labour, also havedecision-making or control rights, includingdecisions on who can join or who is excludedfrom the user group, and how the spring andits infrastructure will be managed. They alsocollect fees from the group members, but donot earn income from this themselves.

These represent a blend of customary law,‘project law’ (in the form of rules developedwith external assistance when the spring wasprotected) and rules developed and modifiedby the user group.

While the exact definition of these bundles ofrights varies from place to place, we find severalcommon elements in many water laws in Africa:

● The state generally claims some kind of ulti-mate ‘ownership’ rights over water, whichmay not be felt at all at the local level, or itmay require that individuals or groups whowant to use or develop a water source need

Legal Pluralism in Water and Land Rights 15

Fig. 2.1. Overlapping legal orders relating to water(from Meinzen-Dick and Pradhan, 2002).

to get some kind of permission from thestate.

● There are widespread notions that anyone isentitled to water for ‘primary uses’, whichare usually interpreted as basic domesticneeds, as well as needs for householdgardens, but may include other productivelivelihood needs. Islamic law has formalizedthis as a ‘right to thirst’ for people andanimals. Indeed, many African societiesrecognize water needs of animals as well aspeople. As one Kalengin proverb in Kenyasays: ‘Even the hyena is entitled to water’,with the implication that no one can bedenied water (Onyango et al., Chapter 11,this volume).

● While basic use rights are strong, they arealso usually quite flexible. Rather than beingclearly defined in terms of who can drawhow much water, access rights are sociallynegotiated, either individually or by groups,depending on changing local circumstances(Witsenburg and Adano, 2003). In range-lands, Ngaido (1999) discusses the impor-tance of access options for people to useanother individual’s or group’s land andwater resources under conditions like drought,which provide a measure of resilienceagainst ecological stress. Cleaver (1998,p. 351) reports a similar pattern for domesticwater in Zimbabwe: ‘As a precaution againstdrought, women rarely rely on one source ofwater but maintain access to a number ofdifferent supplies, often through reciprocalsocial networks. Incentives to cooperatemay therefore be indirect and relate to theneed to maintain good relations with neigh-bours and kin in a more general sense.’

● Control rights of management and exclusionare often held by the local chiefs, groups orindividuals who developed the source. Theeffectiveness of these management authori-ties in setting and enforcing the rules and inmaintaining the source varies greatly, as doesthe extent to which they are participatory orautocratic. Indeed, effectiveness and deci-sion-making practices are related. In BurkinaFaso, McCarthy et al. (2004) found thatwhere the chiefs made decisions in collab-oration with community members, ratherthan by themselves, there was a significantlyhigher cooperative capacity, which led to

better resource outcomes. Similarly, inZimbabwe, Cleaver (1998, p. 355) reported:‘Critical decisions about the rationing ofwater from particular sources are onlysuccessfully enforced in those communitieswhere th

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