Environmental Law and Policy in Namibia: Towards Making Africa the Tree of Life (Third Edition)

II. GOVERNANCE OF RURAL WATER SUPPLY IN NAMIBIA

Thomas Falk1

Sufficient, safe, physically accessible and affordable water for personal and domestic use has become a nationally and internationally recognised human right.2 It is one of the Millennium Development Goals (MDGs) to halve the number of people who do not have access to or can afford safe drinking water.3 In order to achieve this vision, decisions must be made about allocation mechanisms and conservation of water that are compatible with societal objectives such as economic efficiency, sustainability and the equity imperative.4

Namibian water policy is driven by these objectives. Water reforms became necessary because, historically, Namibian rural water supply was characterised by racially-based inequality and strong subsidising. This created a low-quality water sector, making the rural population highly dependent on Government hand-outs and unaware of sustainability considerations.5 The reform of rural water supply fundamentally changes the paradigm of ‘control and command’ by empowering water users and increasing water management efficiency. Water related ecosystem services shall be provided at an optimal level for the overall society.

The currently implemented rural water supply reform has the objective to reverse the negative effects of previous policies. A stronger involvement of different stakeholders and the empowerment of water users shall encourage the saving of water and maintenance of infrastructure. This is supposed to improve the ecological and financial sustainability of the communities’ water supply. Making better use of the capacities of different stakeholders would decrease the Government’s burden concerning the supply of water allowing it to invest the saved funds in more efficient sectors.6

Various laws and policy documents address the water issue.7 In line with Article 100 of the Namibian Constitution the Water Resources Management Act No. 11 of 20138 maintains the ownership of water resources in the hands of the state. In this way the Government can control and ensure that water is managed and used to the benefit of all people. This legal perception is not uncontested, because the state’s water ownership is in contradiction to the customary law of at least some ethnic groups. 9 Customary law is recognised under the Namibian Constitution.10 Perceived overlapping jurisdictions of statutory and traditional authorities are both a threat and an opportunity for improved water management.

The Water Supply and Sanitation Sector Policy of 2008 highlights that community participation and subsidiarity are key strategies of the Namibian Government in order to achieve the objective of economically, environmentally and socially sustainable water management. The policy includes a strong commitment to a broad stakeholder engagement and specifies the following main principles for the rural water supply reform: a) maximum involvement of users; b) delegation of responsibility to the lowest possible level; c) an environmentally sound utilisation of water resources; d) controlled out-sourcing; and e) cost recovery.11 Already in 1997, it was decided that the responsibility for managing and paying for water services should be progressively devolved to community organisations.12

The Water Resources Management Act No. 24 of 2004 was strongly inspired by the above mentioned policy. Following subsidiarity principles, the Act strongly focused on the establishment of Water Point User Associations (WPAs). 13 These consisted of those community members who permanently use a particular water point. The WPAs had the right and duty to operate and maintain their water points in order to foster a sense of ownership. Their constitutions contained stipulations on water use regulations and access.14

The Water Resources Management Act No. 11 of 2013 fundamentally departs from the Water Supply and Sanitation Sector Policy of 2008. The new act has no notion of Water Point User Associations anymore. The Ministry of Agriculture, Water, and Forestry (MAWF) may accredit water point committees and local water committees “to be entrusted with the responsibility of managing and controlling the supply of water at any rural State waterwork.”15 There are no considerations of customary or community ownership. The Act not even makes provisions regarding the water points which already have been handed over to communities in the course of the reform. With this formulation the state indicates that communities are only given management but not ownership rights.

More specific rules e.g. regarding the constitution and powers of water point committees, the appointment of committee members, or the setting of tariffs are supposed to be specified in regulations which have not been publically accessible by the date of this publication. The 2004 Water Resources Management Act was more specific in this regard. It referred for instance to Management Plans which clarified also penalties for violations.

Relevant for the rural water supply management is also the Communal Land Reform Act No. 5 of 2002. It prohibits the prevention of any person to draw water from any water point except with written permission from traditional authorities and ratification of the land board. As a consequence, customary water laws need to be taken into account and communities can make use of enforcement capacities of traditional authorities. The regulations of the Water Resources Management Act will have to be harmonised with the Communal Land Reform Act. The later Act with its acknowledgement of customary law still demands for a polycentric water management approach even if the new Water Act is not specific in this regard.

Namibian policy makers are aware that water is a scarce and valuable resource. Therefore, an economic value is placed on water in order to include environmental externalities in the water costs and to encourage efficient and sustainable resource supply.16 Cost-effective water supply is one of the fundamental principles of the Water Supply and Sanitation Policy.17 At the same time, the policy emphasises that there is a social responsibility to make water available to the poor. For communal farmers, the introduction of cost recovery meant stronger self-support and more responsibility for maintaining and running water facilities.18 It has been shown that the pricing of water overstrains especially many poor and can be in conflict with Namibia’s recognition that water access for personal and domestic uses is a recognised human right.19 It is likely that for this reason the notion of cost recovery is not included in the 2013 Water Resources Management Act anymore though it has been a key principle in the Act of 2004. It is a theoretical and practical challenge to develop effective support mechanisms for the poor, which do not undermine incentives for sustainable water management.

In summary, Namibian rural water supply governance is polycentric intendedly and unintendedly. The 2004 Water Resource Management Act provided governance mechanisms, which made excellent use of the capacities of different stakeholders. At the same time, it did not dissolve contradictions between customary and statutory water laws and unwillingly challenged the poor. The 2013 Water Resource Management Act tries to heal some of the problems. Policy makers and implementing agencies should, however, be careful not to destroy positive developments achieved under the old Act. The stronger notion of state ownership to water and rural water infrastructure will hopefully not mean a fall back to pre-independence policies of communities’ state-dependency. The major upcoming challenge will now be the formulation of regulations under the new act. This should be advanced urgently as there is currently no effective legal framework for rural water management anymore. This creates uncertainty which is a great hazard for sustainable water management.

The author recommends to take the enforcement aspect of water management rules into account. Polycentric and subsidiary approaches which build on the cooperation of different institutional service providers can make use of existing structures. Social and moral-based institutions minimise the need for external enforcement reducing the transaction costs for the state. Only if informal and customary norms and rules are overstrained a reliable backup by the statutory enforcement is required. To date, the enforcement of community water management regulations is not of high priority for the statutory executive and judiciary organs. Given the difficulties to externally enforce by-laws of WPAs it is important that the communities strongly support rules on a moral and social basis20. At the same time it has been shown that social networks can actually hamper the effectiveness of water management institutions.21 This indicates that rural water management rules need to be very reflexive to the respective community contexts and that there are no standard rules/constitutions which work well in all cases. Formulating new water management regulations is a chance to address many of the lessons learnt from over 15 years of rural water supply reform in Namibia. The MAWF might be well advised to consult various stakeholders and academics in this process.

 


1 Owing to recent developments in water-related legislation this Chapter has been substantially revised. Earlier versions of this Chapter have been co-authored with Michael Kirk and Bernadette Bock.

2 GRN (2000b). The Water Resources Management Act No. 24 of 2004 and UN (2002).

3 UN (2000).

4 Bock / Kirk (2006).

5 Ibid.

6 See GRN (1997c); GRN (2000b).

7 See Article 100 and Schedule 5 of the Constitution of the Republic of Namibia; GRN (1997d); GRN (2000a); GRN (2008).

8 This Act, which will repeal the Water Act No. 54 of 1956 and the Water Resources Management Act No. 24 of 2004 still hast to come into operation.

9 Mapaure (2010).

10 Article 66 of the Constitution of the Republic of Namibia; see Hinz (2000).

11 GRN (2008).

12 GRN (2000a).

13 Water Resources Management Act No. 24 of 2004.

14 Ibid.

15 Water Resources Management Act No. 11 of 2013.

16 GRN (2000b).

17 Water Resources Management Act No. 24 of 2004; GRN (2008).

18 GRN (2008).

19 GRN (2000b and 2004), Falk et al. (2009).

20 See also Falk et al. (2012).

21 Schnegg / Linke (2014).