International workshop on African Water Laws
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PLENARY STATEMENT OF PARTICIPANTS AT THE AFRICAN WATER LAWS WORKSHOP

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Preamble
Over sixty lawyers, water resource policy makers and managers, NGO representatives, and academics from twelve African states and other countries (listed in the annex) participated in the international workshop 'African Water Laws: Plural Legislative Frameworks for Rural Water Management in Africa' held in Johannesburg, South Africa from 26 to 28 January 2005 . The workshop discussed research findings on local community-based arrangements for developing and managing water for small-scale domestic and productive uses in rural Africa and the impacts of recent statutory water reform. The workshop also compared African experiences with those in Asia and Latin America. As presented in this statement, delegates formulated recommendations for African governments, international financing institutions and donors to consider in order to better recognize existing local community-based water arrangements in policy, implementation, research and capacity building for poverty alleviation and gender equity.

The 33 research papers upon which the workshop was based are available at
www.nri.org/waterlaw/workshop

The effectiveness of local community-based water arrangements
For centuries, the majority of Africans have harnessed rainfall, runoff, surface water and groundwater resources through self-constructed and operated water harvesting devices including wells, river abstractions, village dams, ponds, and pumps in order to meet their needs for drinking, other domestic purposes, livestock watering, irrigation, fisheries, brick making, small businesses and ceremonial uses. These water uses were and are governed by local community-based water arrangements , which are embedded in a community's holistic governance of human and natural resources. Community-based arrangements are often localized but can also extend across large areas and state boundaries, for example in pastoral communities. Community-based water arrangements seek to support members' rights to water for life, health, subsistence and livelihoods, and often provide the only safety nets to marginalized community members and those affected by HIV/AIDS. These arrangements, which are usually oral, have proven to be flexible, robust, and adaptive to population growth and other changes overtime. Community members usually perceive these arrangements as legitimate and representing strong cultural values. Although power abuse by the traditional leadership structures, which was fuelled under colonialism, can still be found, independent states have adopted constitutional imperatives of non-discrimination and de-ethnicized democratically elected local governance structures which progressively enhance gender and age equity and accountability of local leadership to their constituencies.

The existence and effectiveness of local community-based arrangements for livelihood-oriented natural resource management and the need for synergy with statutory legal frameworks have already been recognized in Africa for, e.g., land tenure reform and titling. However, recent statutory water reform in most African countries still ignores community-based water arrangements, exclusively focusing on centralized statutory water permits, water levies, and new basin institutions. Thus, statutory water reform risks missing and possibly jeopardizing vital opportunities to concretize universal human rights to water for life, human rights to livelihood and prevention of starvation, and opportunities to achieve the Millennium Development Goals of halving, by 2015, the number of people without access to safe drinking water and sanitation, halving the number of people with incomes below one dollar a day, and empowering women.

Recommendations for policy and implementation
Therefore, the workshop participants recommend that governments, international financing institutions, and donors:

  1. In water policy and law formally recognize the validity and legitimacy of local community-based water arrangements - as far as they progressively comply with constitutional imperatives and principles of human rights - as equal to, or alongside, statutory rights and foster synergy between the systems.
  2. In developing water resources provide financial and technical support for affordable infrastructure development for small-scale rural water uses by women and men, building on community-based water arrangements and local government, better integrating domestic and productive uses, and incorporating institutional principles consistent with community-based arrangements in the technical design of infrastructure from local to basin level.
  3. In administering and authorizing water use
    a) recognize small-scale rural water uses for livelihoods as lawful without unrealistic and burdensome administrative obligations, for example by raising the thresholds of small-scale water uses below which water use is authorized without registration - while establishing simple water resource planning tools to keep track of the proportion of water resources used by small-scale users;
    b) avoid imposing alien and unrealistic organizational and registration requirements that hamper the functioning of effective and inclusive community-based arrangements;
    c) allocate collective rights to use water and to set the rules for managing water, where appropriate;
    d) charge water levies for government water resources management only to large water users or collectives who derive most benefits from water;
    e) consider the linkages between land and water rights/allocations, and ensure that those with unregistered communal land rights are not excluded from obtaining water rights;
    f) test the logistic requirements, implementability and enforceability of draft legislation before adoption.
  4. In mitigating upstream-downstream or groundwater competition, e.g. in the dry season
    a) prioritize and protect water uses that are most beneficial for the livelihoods of the poor against more powerful users, for example by facilitating dialogue according to local community-based arrangements, such as proportional allocation;
    b) provide full compensation if water has to be taken away from communities;
    c) provide adequate deliberative procedures to reduce and solve conflicts arising out of competition.
  5. In establishing statutory water resources management institutions
    a) devolve (and not just deconcentrate) water management authority to the lowest appropriate level, in particular inclusive local community-based arrangements;
    b) ensure that new water bureaucracies build on informal community-based water arrangements and local government and that they remain small, cost-effective and focused on pro-poor socio-economic development.

Recommendations for research and capacity building
The workshop participants acknowledged that African local community-based water arrangements and the interface with other legal frameworks are still inadequately understood and recommend to the following:

  1. Record local community-based arrangements with due attention to the vernacular and in such a way that communities are empowered (e.g., ability to catalyze collective investments in infrastructure, operation and maintenance, conflict resolution processes, inequities and poverty, and environmental impacts);
  2. Seek an understanding of the gendered dynamics of local water and land arrangements, so as to ensure that women's engagement with land and water for family livelihoods is respected, protected, and improved;
  3. Assess the potential advantages (e.g., empowerment of communities against more powerful water users) and disadvantages (e.g., freezing of the flexibility and variation over space and time) of codification;
  4. Assess the impact of statutory water reform and identify locally appropriate and enforceable procedures, tools, and modalities for building upon local community-based water management arrangements in water development and regulation;
  5. Learn from the experiences elsewhere, especially in African land tenure, about synergetic co-existence of plural legal frameworks and further explore the interface between land tenure and water rights.
  6. Train both scholars and practitioners in studying local community-based water arrangements.
Annex: List of participants
Please note that institutional affiliations are added for identification purposes only. Participants are not necessarily representing the agreed views of their host institutions.

Akintomide, Cecilia African Development Bank Tunesia
Anderson, Aileen University of British Columbia Canada
Binswanger, Hans World Bank
Bruns, Bryan Freelance consultant USA
Bustamante, Rocio Centro Andino para el Gestion y Uso del Agua Bolivia
Butterworth, John Natural Resources Institute UK
Chemeda, E. Desalegn Asian Institute of Technology Thailand
Chikozho, Claudious International Water Management Institute
Chileshe, Paxina University of Newcastle upon Tyne UK
Chiuri, Wanjiku Egerton University Kenya
Cousins, Tessa Association for Water and Rural Development South Africa
Dembele, Youssouf Institute for Environmental and Agricultural Research Burkina Faso
Derman, Bill Michigan State University USA and Noragric Norway
Djirmey, Aboubacar Beria Consulting Engineer Niger
Du Toit, Derick Association for Water and Rural Development South Africa
Earle, Anton African Water Issues Research Unit South Africa
Garduno, Hector Representative International Association for Water Law (AIDA)
Giordano, Mark International Water Management Institute
Goldin, Jacqui Free lance consultant South Africa
Harigobin, Shantal Department of Water Affairs and Forestry South Africa
Hellum, Anne Faculty of Law, University of Oslo, Norway
Juma, Ibrahim University of Dar Es Salaam, Faculty of Law, Tanzania
Kabudi, John Faculty of Law, University of Dar es Salaam, Tanzania
Kambewa, Daimon Bunda College of Agriculture, University of Malawi
Lankford, Bruce School of Development Studies, University of East Anglia, UK
Latham, Jim Centre for Applied Social Sciences, University of Zimbabwe
Lautze, Jonathan Fletcher School, Tufts University, USA
MacKay, Heather Water Research Commission, South Africa
Maganga, Faustin Inst. of Resource Assessment, University of Dar es Salaam, Tanzania
Makombe, Godswill International Water Management Institute
Malzbender, Daniel African Water Issues Research Unit South Africa
Manzungu, Emmanuel University of Zimbabwe
Mehari Haile, Abraham UNESCO-IHE Institute for Water Education Netherlands
Meinzen-Dick, Ruth International Food Policy Research Institute
Mohamed-Katerere, J. Freelance consultant Indonesia
Mohapi, Ndileka Department of Water Affairs and Forestry South Africa
Morardet, Sylvie International Water Management Institute
Morris, Mike Natural Resources Institute UK
Moseki, Chris Department of Water Affairs and Forestry South Africa
Mulwafu, W. O. Chancellor College, University of Malawi
Mumma, Albert Faculty of Law, University of Nairobi, Kenya
Mwaruvanda, Willie Rufiji Basin Water Office, Tanzania
Onyango, Leah Maseno University, Kenya
Opoku-Ankomah,Yaw Water Research Institute, Ghana
Opoku-Agyemang Maxwell Ghana School of Law, Ghana
Pegram, Guy Pegasys Pty Ltd South Africa
Pollard, Sharon Association for Water and Rural Development South Africa
Ruiters, Cornelius Department of Water Affairs and Forestry South Africa
Sally, Hilmy International Water Management Institute
Schreiner, Barbara Department of Water Affairs and Forestry South Africa
Seetal, Ash Department of Water Affairs and Forestry South Africa
Shah, Tushaar International Water Management Institute
Sikoyo, George Africa Centre for Technology Studies (ACTS) Kenya
Sithole, Pinnie Centre for Applied Social Sciences, University of Zimbabwe
Sokile, Charles University of Dar Es Salaam Tanzania
Sullivan, Amy International Water Management Institute
Swallow, Brent World Agroforestry Centre Kenya
Troell, Jessica Environmental Law Institute USA
Van Koppen, Barbara International Water Management Institute
Vermeulen, Abraham Department of Water Affairs and Forestry South Africa
Wilson, Leanne University of Newcastle UK