IWMI Research Report (173): A Hybrid Approach to Decolonize Formal Water Law in Africa

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Since the 1990s, many sub-Saharan African countries have promulgated statutory water laws that include nationwide permit systems promoted as global best practices. However, significant challenges have emerged. Permit systems widen inequalities and their implementation is logistically impossible. This report traces the causes of these challenges back to the colonial roots of permit systems with the aim of identifying the colonial ‘wrongs’ that need to be removed and the ‘rights’ to be taken forward in a way that there is alignment with the water authorities’ current practices. The proposed hybrid approach recognizes living customary law and targets regulatory permits at the relatively few formal, high-impact water users.

The report starts by analyzing how inequalities are widening because permits, or exemptions below a certain threshold, are the sole way to legalize water use, as prescribed by the water legislation. This overrides the widespread living customary water rights regimes, which, since time immemorial, have governed investments in water infrastructure for self-supply and water sharing by, currently, millions of small-scale and micro-scale water users in Africa’s informal rural economies. On top of ignoring these water rights, the micro-scale water users who are exempted from the obligation to apply for a permit are categorically marginalized because exempted uses have a weaker legal standing than permitted water uses. Small-scale users who are obliged to apply for permits - at disproportionately high costs relative to large users - are de jure criminalized without a permit. Yet, the high administrative burdens of permit systems prohibit states from informing the large numbers of small-scale users and processing their applications. This is an administrative injustice. At the same time, the relatively few permits with their superior entitlements that have been issued remain heavily biased towards formal large users with the highest impacts on other water users and aquatic ecosystems.

Focusing on Malawi, Kenya, South Africa, Uganda and Zimbabwe, the report identifies the causes of these challenges in the colonial introduction of permit systems in the early 1900s. These laws claimed colonial ownership of water resources, mainly surface water at the time, and issued permits to settlers only. This vested superior water entitlements in the settlers. The conditions tied to permits provided the newly established colonial water authority with useful hydrological and technical information about new terrains, and included fees for cost recovery. The legislation recognized African customary water rights regimes but declared an inferior entitlement. Thus, permit systems served the colonial government’s state building and settlers’ hydraulic mission in support of the minority colonial economy.

After independence, colonial ownership shifted to custodianship by the new state. However, instead of recognizing living customary water law, permits and exemptions remained the single legal tool to define water uses as lawful. The informal small-scale users, who had been purposively excluded before, were suddenly subsumed under the permit system. Moreover, administrative burdens to reach the fast-growing rural populations rocketed even more in the subsequent legal revisions, which extended permits to include groundwater and a greater range of waterrelated activities; increased conditions; shortened durations requiring more frequent renewals; lowered thresholds for exemptions; and intensified revenue collection, while initial donor funding for reforms and implementation dwindled.

The report concludes by suggesting options to decolonize statutory water law through a hybrid approach. The ‘wrong’ of the past to be removed is that permits or exemptions are the exclusive tool for any water users to become lawful amidst legal pluralism. Instead, permit holders and small- and micro-scale non-permit holders should be given equal legal standing. Water allocation and conflict resolution during water scarcity and droughts, which are still rudimentary in current legislation, should be guided by a prioritization that reflects national goals, including local economic development and constitutional rights to water for domestic and productive uses for basic well-being. Such a normative framework underpins two tools to implement the hybrid approach.
First, permits should continue as a targeted and lean regulatory tool – not as an entitlement - to set and enforce water use conditions and fees on the relatively few formal users who use a finite national asset with highest impacts on other users and aquatic ecosystems. This implies transparent permit application procedures that protect potentially affected small- and micro-scale users and enable them to negotiate sharing of benefits or compensation. Second, in order to effectively prevent and resolve conflicts among the many medium-, small- and micro-scale users, states should recognize and build on the myriad living customary arrangements that align with national priorities and constitutional requirements.

This hybrid approach with its tools is in line with current practices of permitting, is administratively lean, recognizes customary law and protects the most vulnerable. Instead of being entangled in concerns of getting a permit or not, the overdue concerns become: what are the ultimate goals that communities and states want to achieve through the regulation of precious water resources, and how best can that be realized? How can living customary arrangements contribute to that?