The legal status of all water resources including rainwater has been in most cases that of a property. In certain African countries, water resources belong to the people, public or nation and are simply controlled by the government.[1] In Kenya however, all water resources are the property of the government (under Part II, section 3 of the Water Act, 2002 it was amended to “state” but does not signify a substantial change in the legal status).[2]
The National Water Services Strategy (NWSS) was presented by the Minister for Water and Irrigation in Kenya, in 2007, for the development, management and monitoring of water and sewerage services.[3] This is because the WSS situation had been very poor, whereby according to a 2007 report from the Ministry of Water and Irrigation, only about 57% of households at that time used water from “safe” sources; sustainable access to safe water was about 60% in urban settings and as low as 20% in settlements of the urban poor where half of the urban population lives; sustainable water access in rural areas was about 40%; and sanitation coverage was only about 50%.[4] In addition, vendors in Kenya sell water of “uncontrolled quality” which costs between 5 to 20 times the tariff applied on consumers with metered water connections.[5] As a consequence, the impacts of poor water service and quality are mainly felt by low income consumers who cannot afford alternate mechanisms of filtering or cleaning water, or paying for metered water that may or may not be running regularly.
The goals set by this strategy (NWSS) targeted for 2015 include reaching at least 50% of the underserved urban population and 50% of the underserved in rural areas with safe and affordable water by 2015 and sustainable access to all by 2030; increasing access to “safe and improved” basic sanitation facilities particularly for the poor to 77.5% in the urban setting and 72.5% in the rural setting; as well as providing sustainable waterborne sewage collection, treatment and disposal systems to 40% of the urban and 10% of the rural population by 2015.[6] The status of progress achieved under this strategy thus far remains to be investigated.
Upon going through the Water Act amended in 2002, along with the NWSS report, one realizes that a main route the government has taken to achieve these goals is through a focus on decentralization and delegation through public-private partnerships and “undertakerships” where water licenses are issued under the Water Act, Chapter 372 to supply water within an area.[7]
Initially in Kenya, the water management sector dates back to the National Water Master Plan of 1974 aimed at ensuring potable water availability (at a reasonable distance) to all households by 2000.[8] The task was too large to be completely and directly handled by the government, and as a result the Water Act was introduced before the year 2000. It created a separate Ministry of Water and a state corporation (National Water Conservation and Pipeline Corporation) running water supply systems on a commercial basis.[9] Since 2004, the provision of water and sanitation services has been increasingly transferred or “handed over” to the private sector as a part of the decentralization process.[10] In rural areas where private-sector providers are few, community self-help groups remain significant despite their marginal presence under the new legal framework of the Water Act 2002 (discussed in depth in Mumma’s article).[11]
On the front of progress, according to the article “Balancing Development and Environmental Conservation and Protection of the Water Resource Base: The ‘Greening’ of Water Laws”, it is indicated that legislation through permits and licenses is the primary instrument of water use regulation and it is now progressively bridging water and environmental concerns.[12] This article acknowledges that there is an increasing trend towards “integrated water resources management”, where water protection provisions are being incorporated within legislation protecting the environment. This has been the case in Kenya, where national reserves or protected areas entail the protection of aquatic ecosystems “in order to secure ecologically sustainable development and use of the water resource” and a stipend is provided for each constituent of the reserve.[13]
Where on the one hand, there is progress in expanding and improving water regulation in Kenya, as well as integrated water resource management and environmental protection, on the other hand, a gradual trend towards decentralization and privatization of service provision has been only resolving the government’s problems in finding capital for service infrastructure, but simultaneously shifting costs of interest payment onto the consumers instead of the government. As well the nature of the legal framework marginalizes customary and traditional (group ownership) norms and rights of use of those living in rural areas who have limited access to state-based systems, and who are unable to meet the requirements for obtaining a permit for water provision (through private land tenure).[14] If consumers have to absorb the costs, services remain distant from some rural areas and permits are difficult to attain, then the rural poor are left in a battle against marginalization and exclusion in the midst of “progressive” reforms.
[1] Hartung, H.; Patschull, C. “Framework for the Inclusion of Rainwater Harvesting in National Water Legislation in Sub-Saharan Africa”. UNEP.
[2] Mumma, Albert. “Kenya’s New Water Law: an Analysis of the Implications of Kenya’s Water Act, 2002, for the Rural Poor”. Chapter 10 in Community-based Water Law and Resource Management Reform in Developing Countries. Ed. B. van Koppen, M. Giordano, J. Butterworth. CAB International: London, 2007, p 163; and ibid Hartung, H.; Patschull, C.
[3] Government of Kenya, Ministry of Water and Irrigation. “The Water Act, 2002 (No.8 of 2002)- The National Water Services Strategy (NWSS) 2007-2015”. May 2007.
[4] Ibid, i.
[5] ibid, ii.
[6] Ibid, ii-iii.
[7] ibid Mumma, p 158.
[8] Ngigi, Ashington; Macharia, Daniel. “Kenya Water Sector Policy Overview Paper”. Enable: Energy for Water, Health, Education. May 2006. ; and ibid Mumma, p 158.
[9] Ibid Ngigi, p 1; Mumma, p 159.
[10] Ibid, Ngigi p3; Mumma p 160.
[11] ibid Mumma, p 162.
[12] Burki, Stefano. “Balancing Development and Environmental Conservation and Protection of the Water Resource Base: The ‘Greening’ of Water Laws”. FAO Legal Papers Online #65, June 2007. Section 2, p1.
[13] ibid, Section 3.3. quoted from Kenya, Water Act (Cap 732) No 8 of 2002, articles 1 and 13(2).
[14] ibid Mumma, p 163, 164.
I'm sure this well-referenced piece should be of interest to all of you in the program. It opens up some interesting avenues of thought/exploration for you while you are there.
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