Legal Framework for Water Regulation in Kenya: Advances and Exclusions

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.

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[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.

Ecosystem Valuation: A step forward?

Dr. Adhikari provided an exceptionally thorough analysis of key terms and theories on economic valuation, which proved insightful and eye-opening to someone with little economics background.

“How valuable is an ecosystem?” and “to whom?”[1] are core questions to ask from an economics perspective, when thinking of possible ways to increase awareness of decision-makers around the protection of ecosystems. In instances where there are negative externalities resulting from the productive or consumptive activities that inflict involuntary costs on others, the generators of externalities only consider private costs of the economic activity and ignore the social costs they place on others.  The receivers of the service or good (or natural resource in the context of water) incur these social costs in the form of health problems or clean-up costs.

Seeing that water was discussed as having an inefficient and uncompetitive market (no Pareto efficient-meaning it cannot be reallocated to one party without making another party worse off), with a low social surplus, and users prefer to ‘free-ride’ on the provision of this good (tragedy of the commons), it becomes quite difficult to control or to place a value on it.

Various measures were presented to resolve the dilemma including voluntary provisions (i.e tax incentives, reward conservation behaviours), market-oriented measures (i.e cap and trade) and state “command-and-control” mechanisms. Three systems in particular caught my attention:

1) PES (payment for environmental systems)- private payments. This system entails that those downstream pay upstream parties to conserve or preserve the resource.  The idea is that the payment will act as an incentive for those upstream to change their behaviour from exploitation to conservation.

My question concerning its effectiveness is: how can one guarantee that those upstream will in fact change their behaviour or even want to in every case (even with an incentive)? 

Moreover, how equitable is it to make those who are the “victims” in this scenario, pay an additional price for the sake of conserving the resource, while those exploiting the resource get incentives? From an economics perspective this may be seen as a win-win situation, however, moral questions arise when those downstream cannot afford to pay the cost/incentive to change the upstream party's behaviour. How can their dilemma be resolved?


2) Government monitoring. This system requires greater government control by setting legal mechanisms (i.e fines and taxes) to control exploitation of the resource.

Although this system seemed the most convincing to me at the time, Dr. Adhikari soon clarified for me the issues. At times, the cost of compliance can be too high and there is no incentive for governments to implement legal mechanisms. For one reason, there may be political corruption which will falter the system even if it is created, and secondly, governments may fear stifling production by adopting such measures.

3) Public Payments. I found this system to be rather reasonable but certainly not without its caveats. In this system, governments pay entities (such as farmers, NGOs) to conserve particular ecosystems. This has been taking place in countries like Ecuador (where municipal water and electrical utility companies each donate 1% of water revenues for watershed protection), and in Costa Rica among other places. Although this system contributes to the conservation initiatives of certain ecosystems, does it limit or prevent the exploitation of the resource at the level of consumption? 

On this note, water governance is a complex and controversial issue. However, if water can be valuated, then perhaps this will increase its appreciation and conservation. A final question which merits further research on my part is: if water were to be at some point valuated, and a price were to be set, would that be more conducive to changing individuals' or companies’ exploitative behaviour- or would it present an opportunity for private interests to monolopolize the market supply for water, now that a price has been set for it (and a market has been created)? 

* I plan to post a blog over the break regarding water laws in Kenya in preparation for our February trip- stay tuned for that! 

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[1] How Much is an Ecosystem Worth? Assessing the Economic Value of Conservation. The World Bank/IUCN/The Nature Conservancy. IBRD/World Bank, Washington DC, 2004.

A gendered approach to water-sanitation projects.

Much research has proven that water problems and sanitation problems are closely interlinked yet their relationship is most often disregarded. As Dr. Elliot explained, the Cholera outbreak in 19th century England was not linked to water contamination until John Snow plotted a cholera map and realized the concentration of cases was around a particular well in the city. Similarly today, it is not well acknowledged that approximately 10% of the global health burden is affected by water.*

Solutions provided at the macro level may not be very successful due to the specificity and variety of perceptions on sanitation at a micro-level such as attitudes, practices and risk perception, the psychosocial impacts of other problems, the levels of social cohesion, and most importantly gender roles.  

If community members are not willing to use latrines, then why bother build them?

I would like to, however, dedicate this blog to highlight the gendered face of water-health problems. There is more relevance to addressing gender equity in water-related management than is generally discussed. Although there was a section devoted to exploring women’s role in Safe Water as the Key to Global Health (2008)- an effort which is commended- it was too brief.* This area of research warrants further investigation. Women bear the burden of a majority of household chores that necessitate water use (cooking, cleaning, washing laundry, walking for miles to fill up containers). They also carry the heavier burden of tending to their ill children and family members who get infected with diseases that are waterborne. Despite their customary higher contact with water, they tend to be marginalized in decision-making around improving water and health standards.  As Dr. Wallace explained, asking the men within a community for their solutions yields a completely different set of answers than that of women’s. Yet within communities built on patriarchal norms, it is expected that the men's decisions be considered.

This is why encouraging greater gender engagement in addressing water problems and explaining to women within a community how their burden can be lessened as a result, will most likely foster greater support for water and sanitation projects.

My impression is that due to the taboos around the subject of bodily wastes, sanitation has been sidelined, both as a topic of conversation and an investment priority. "In Deep Democracy: Urban Governmentality and the Horizon of Politics", Arjun Appadurai explores the work of the Alliance, an NGO based in Mumbai which allows slum dwellers to work together to improve their standards of living. One example that caught my attention was celebrating "toilet festivals" (32).** The main idea is to redeem humiliation through a politics of recognition. Celebrating a toilet will rid it of the stigma associated with it. Initiatives like "toilet festivals" and encouraging increased female participation, mothers and young girls, can be one way to increase the success of water-sanitation projects and to achieve a sustainable community-based solution. 

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* Corinne J. Schuster-Wallace, Velma I. Grover, Zafar Adeel, Ulisses Confalonieri, Susan Elliott , “Safe Water as the Key to Global Health” (2008), pp.10

http://www.inweh.unu.edu/documents/SafeWater_Web_version.pdf  

** Arjun Appadurai, "Deep Democracy: Urban Governmentality and the Horizon of Politics". Public Culture. 14, 1 (2002), pp 21-47.

*** Brodie Morgan Ramin and Anthony J. McMichael, "Climate Change and Health in Sub-Saharan Africa: A Case-Based Perspective", EcoHealth 6 (2009), pp 52–57. 

I very much enjoyed the case-specific approach used in this article selected by Dr. Wallace and Dr. Elliot for their presentation. The use of the affected individuals’ names as titles for the case studies permits focusing importance on the human suffering caused by changing environmental conditions, and water was an indirect- sometimes even direct- factor, whether due to a flood, dehydration, drought, mal-nourishment etc. It is worth noting that most of the cases were reported by women.

Institutionalizing the problem.

It is always the same question that reiterates: how should we approach the issue?

In order not be redundant, I will analyze the water crisis from a top-down approach, since I had previously explored it from a bottom-up stance in Blog # 3 (focusing on endogenous community based solutions).

In the presentation on UNU-INWEH, Dr. Zafar Adeel explained that approaches to the water crisis have consisted of institutional (i.e AMCOW), economic (i.e. ODA) and/or public responses.

In my opinion, the biggest challenge has been the institutionalization of the problem- the intense focusing on large institutions to collaborate initiative and agree on common terms to bring forth a practical, result-based solution. Although an institutional, top-down approach is a critical factor to the equation, as it is the largest source of funding, this approach has been constricted with bureaucracy, confined among experts and at a point lost trajectory of focusing on the most in need of assistance.

As discussed by Dr. Adeel in the presentation, many institutional initiatives, which also determine where economic solutions are directed, have lost focus on the pressing targets. ODA(overseas development aid) for instance, has been targetted towards large scale systems rather than small, more manageable and effective projects, and its distribution towards water issues has been decreasing in the first place. UNU-INWEH has been playing a role in trying to redirect focus back to funding numerous dispersed small-scale initiatives, rather than a few larger scale ones that marginalize many communities in need of assistance.

The role of national and international institutions in setting laws and regulation for the water crisis is pivotal, however, self-criticism is of the essence. Unless one recognizes and acknowledges their own problems, how can they effectively solve the world's problems?

In Lederach's "A Framework for Building Peace", he outlines 3 essential pillars for action:

1) education

2) advocacy

3) mediation

Although Laderach uses his theory in the context of peace-building, it continues to be relevant here as it calls for methodological change to achieve social change. My interpretation of these three pillars around the water crisis rests in 1) promoting education on the issue of water to both local communities and international actors while developing short-term and long-term plans* 2) using adequate language to frame the issue within the boundaries of reality and urgency** 3) understanding value paradoxes (opposing ideas) which represent sides to the same problem.

Perhaps institutions involved in the top-down approach to addressing the water crisis need to adopt Laderach's model- a more encompassing framework, that accepts differences and leaves room for ecouraging endogenous bottom-up solutions.

Can this self-reflexive and more encompassing top-down approach effectively resolve the problem of institutionalizing the problem?

* as discussed at the GECHH 2010 symposium by Dr. Karanja- it is important to identify "gaps" in current knowledge on water issues- i.e evidence gathering, role of women etc.

** as discussed at the GECHH 2010 symposium by Dr Mark Rosenberg on "reframing" discourse- i.e shifting the focus from protecting the "quality" of water as if, as humans, we are separate from it. 

Citation: Lederach; John Paul. "A Framework for Building Peace" chapter 2. in Preparing for Peace: Conflict Transformation Across Cultures. New York: Syracuse University Press, 1995, pp 3-23.

Today....I was put to test. ("Emergency" blog)

Today I am writing an "EMERGENCY" blog.

I woke up to my daily morning routine- using the bathroom, washing my face, brushing my teeth. I tried to flush the toilet- no response. I tried to wash my hands, no water flew from the faucet, consequently I could not brush my teeth or wash my face.

I was certainly not entertained by the idea. In fact, it was too strange and foreign an idea. I live in a condo building and generally water maintenance or repairs are pre-announced at least a week in advance.

However, emergencies cannot be prepared for in advance. The main water pipe broke and the main floor inside and outside the building was flooded overnight. The City of Mississauga shut off water supply to our building. There is no guarantee that water will be running again by the end of the day. However, I do like to point out that IMMEDIATE action was taken to repair the damage (thankfully).

I could not help but compare my building main water pipe breaking, to the village outside of Kisumu, whose water pipe was also broken. Mine will most likely be fixed within a day, theirs has been broken for longer than it should be.

Being put to test as I was this morning certainly made the impact on how I empathise now with the dilemma of lacking access to water. In the process of flooding, my mind was also flooded with questions that resurfaced:

How dependent are we on water for our everyday needs? How long can WE (here) survive without water running for a day? What action does our government take to resolve our water shortage? What actions do we take to fix the problem or what options do we have available to compensate for the shortage in tap water? Why are we so priviledged, and cannot imagine our lives lasting without water supply for longer than a day, when others are living in this particular scenario for years? Day after day after day...

I wonder how much clean water was wasted in the process of the flooding? How many people could have made better use of it in places where clean water is a rare luxury?

What's your input on this? Have you been in such a situation? Can we only empathise with the issue better when we experience it first hand? I would really like to hear your thoughts...

Who rules? Whose rules?

Writing this blog, it suddenly dawned upon me how important it is that we ask the "right" questions. When we were discussing the case study of the village outside of Kisumu with a broken water pipe- due to the construction of either a beverage plant or gas plant nearby- being the only source of clean water running in the village, we attempted to figure out what these villagers should do to resolve their water crisis. Do they walk the long miles to the plant to fill up from a highly chlorinated tap? Very far and inconvenient. Do they seek low-cost/ no-cost technologies to clean the dirty water available at a closer distance? Requires time and these technologies might not be effective in exterminating all bacteria in the water. Do they mobilize and demand the plant to fix their pipe? How willing are they to mobilize becomes the question. Or do they just accept their fate and wait for external organizations to provide them with any form aid? There is no sustainable improvement where there is lack of agency.

What type of governing or action is deemed the best approach in this particular scenario then? 

Ronnie Lipschutz defines governance through the following necessary questions: "Who rules? Whose rules? What kind of rules? At what level? In what form? Who decides? On what basis?" (quoted in Ken Conca's Governing Water, 381)

For a small rural community, it seems very unlikely that those who are making the rules for them are sympathetic to their concerns. Are they even aware the pipe is broken? Do they care? Would a few letters from the villagers incite them to act? Will they take on the responsibility to fix it? Highly unlikely (I realize the dangers of making a predetermined judgment- but this has been the case more often that not). 

As an alternative then, would activism count as tyranny of the minority? If the villagers mobilize to demand that justice be served and the "plant" fix the water pipe it broke, what would the outcome be? Will the pipe be fixed? Will the "plant" ignore their plight? Will the government/plant relationship lead to silencing the villagers? Will this be a sustainable solution to access to water? Here it is more difficult to judge. 

Mobilization can also take a different turn, depending on the willingness and capacity of the local community. An endogenous solution would be creating a locally governed low-cost water cleaning system, where the villagers themselves decide the form of governing, create the rules and rule. This can be compared to the participatory budgeting system in Latin America, where local councils governed by local community members, are created to address projects of highest urgency and submit proposals for funding. The locals can determine a form of horizontal organization, voluntary or paid, that allows rotation of responsibilities in ensuring the system is maintained.

There are various obstacles and risk involved with any of the proposed solutions, especially as I propose them while being distant from the reality of those villagers. The only way to find out however, is through a trial and error mechanism. It seems only fair to try, rather than to accept the detrimental impacts of socializing the risk and responsibility that came with the “plant”. Who rules? Whose rules? 

Water as a human right. Absolute or not?

Scenario 1: Water is a commodity. If we consider water to be a commodity, then every human being has the right to compete over its control, to remove it from the public realm and privatize it, to place it in the market and then to yield profit from its sales. It is logical from a business perspective to lay hands on a scarce resource such as this, and at times of height in demand (which are sure to come), adjust the prices to generate the highest possible returns. Virtual water falls under this category. Large agroexporters such as those exporting asparagus all-year round in Peru's Inca Valley,[1] drain water reserves of an already dry land, at an astounding rate and export their products mostly to the developed world. Thanks to the current trade policies and SAPs implemented in the recent past, these agrobusinesses pay fewer taxes on water and use it recklessly. This has become what the "right" to access to water means in our hyper-capitalist world. The question remains then: what of the people who cannot afford increasing prices of water? Where in the picture of competition do they fit in?

Scenario 2: Water is a human right. "Absolute or not?" becomes the question. Since this is the more utopian alternative and unfortunately not the current state of reality, it instigates many questions. Should everyone get free access to water, and the costs of servicing the water be subsidized by taxes? Should it be completely in the public sphere and governments be responsible to secure it? How can consumption habits be controlled? Should there be a cap on how much water every individual may consume? Should households pay for the "over"-consumption? Should there be increased taxes for water consumption by businesses (much like a carbon footprint)? 

Much ambivalence exists within international institutions and “regimes” on what a "right" to water consists of and where to draw the boundary between its perception as an absolute right, such as the right to life (so that it comes free of cost) or a right to buy it out from the public realm and transform it into a commodity. Ken Conca, in Governing Water, is critical of the legitimacy of these institutions, their exclusivity, and the convergence of similar mindsets within the circles of experts running them. Evidently, the bipolarity here emerges from the competing interests of trade vs. human rights (institutions like the WTO representing an amalgam of powerful state interests and corporations vs. NGOs, human rights activists, states at a threshold with water resources etc).  

It wasn't until recently (July 28, 2010) that the UN passed the Human Right to Water and Sanitation resolution, thanks to the efforts of the global water justice movement, to finally acknowledge water as an absolute right.[2] There was an overwhelming support of states (122 in favour). However, this resolution falls short on ensuring a ratification system and challenging the sovereignty of countries and how they choose to privatize their water resources. Not to mention that this resolution still has a handful of powerful opponents who abstained (including Canada). I strongly believe that redefining "water" within epistemic communities involved in global governance as an “absolute right” is crucial if we are to acknowledge the “human-face” of the water crisis with an emphasis on the “human” rather than the “profit”.  To end on a positive note for a change, I would like to remind that the journey of a thousand miles begins with one step. 

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[1] http://www.guardian.co.uk/environment/2010/sep/15/peru-asparagus-british-wells

[2] http://www.canadians.org/publications/subscribe/enews/2010/Aug1.html