In previous
posts I have suggested that investment in irrigation infrastructure is crucial
for ensuring food security in SSA. But, infrastructure, technology and
knowledge are not everything; in many African countries the great obstacle is a
relict from the past. Colonial powers have long ruled over most African
countries, dominating not only food production and land tenure, but also
regulating who has access to water and who doesn´t.
Inspired by
a post written by a fellow student, I will explore the issue of water
rights based on a study conducted by van Koppen and Schreiner (2018).
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| Fig. 1: with the implementation of the new Water Act millions of famers use their water illegally (The Telegraph) |
The Roman Water Law
Although most European countries practiced the
riparian doctrine saying that water cannot be owned, when European settlers
colonized Africa, they claimed water under the Roman water law (van Koppen et.al. 2014). They occupied “fertile,
well-watered and upstream lands” (van Koppen and Schreiner 2018: 9) regardless of
who was cultivating it and declared that all water belonged to the new colonial
government. The government alone had the right to allocate permits for water
use, which excluded native Africans from all decision-making processes (van Koppen and Schreiner 2018). This top-down system served the interests of colonial
authorities by granting water rights to white, minority farmers and systematically
dispossessing natives (van Koppen and Schreiner 2018). Small-scale farmers,
whose water use was below a certain threshold, were, however, exempted from the
obligation to apply for a water permit. This enhanced informal arrangements
under traditional, customary law among smallholders (van Koppen and Schreiner 2018).
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| Fig. 2: in 1914 Africa was a patchwork of colonial powers, developing water rights to serve their own interests (Michigan State University) |
Current Permit System
When the former colonies declared independence, they
often retained the old permit system without questioning it. In line with the global
shift towards water regulation under Integrated Water Resource Management (IWRM),
the permit system was even reinforced by new Water Acts since the 90s, in which
arguably the new governments simply replaced the colonial authorities (van Koppen et.al. 2014).
It can be suggested that these new Water Acts even exacerbate
discrimination against smallholders. Under post-independence law now all water
users are included in the system, even those that were exempted under colonial law.
Thus, informal users that have invested privately in water infrastructure now
become marginalized (van Koppen and Schreiner 2018). Government institutions
processing these permits are under-resourced and due to lower bureaucratic
costs prioritize large-scale water users (van Koppen and Schreiner 2018). At the same time, due to a lack of
information, internet access and high transportation costs, smallholders are
often limited in their ability to apply for these permits. But, without a
permit, they are fined or even jailed. Thus, the system even criminalizes
informal water users that clearly constitute the majority of farmers and have
long been the backbone of poverty alleviation and ensuring food security (van Koppen et.al. 2014). Additionally, those
water users, who are still below the threshold, have a weaker legal standing than permitted water users
and thus, their claim for water is always provisional and insecure (van Koppen and Schreiner 2018).
As a result, despite the promotion of IWRM as solution
for water conflicts by many scholars, including van der Zaag (2005), focus on water regulation has reinforced the old colonial
permit system, clearly disadvantaging small-scale farmers (van Koppen and Schreiner 2018).
A step towards decolonization of water
van Koppen
and Schreiner (2018) suggest a hybrid system between the informal, customary law
and the formal permit system in order to overcome this marginalization. They
argue that the recognition of customary law, encourages infrastructure investments
and gives a stronger standing to informal small-scale users, thereby preventing
their criminalization. Similarly,
Benjaminsen and Lund (2002) highlight that formal and informal systems are
entangled and cannot be separated in a clear dichotomy. Therefore, it is crucial
to implement an approach combining formal and informal practices in order to reduce
resistance from local people and ensure the recognition of their needs.
In their study on smallholders in the Usangu plains,
Tanzania, Franks et.al. (2013) claim
that there is a shift towards polycentric governance, where power is not exclusively exercised
by the state, but by a network of “powerful individuals” (Franks et.al. 2013: 8). Instead, an umbrella of
different institutions, associations, fora and local authorities are combined
in both formal and informal settings, empowering small-scale farmers to speak
up for their interests. However, these networks also gave rise to powerful local
elites that occupy leading positions in associations and local governments (Franks et.al. 2013).
Final Thoughts
This shows
that it is essential to strengthen the position of local smallholders within
the water legislation. Nevertheless, the combination of informal and formal
principles under polycentric governance shows some potential to overcome
colonial patterns of water allocation. Additionally, it becomes evident that water
governance is a complex system and a diversity of stakeholders and institutions
on different scales have to be considered. Therefore, multi-sector approaches acting
on different scales should be further investigated.
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