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Hybrid water law in Africa: the customary commons in the decolonization of water permit systems

Barbara van Koppen

International Water Management Institute, South Africa

“Colonial water laws in Sub Saharan Africa privatized water resources as property of the colonial rulers and overruled African customary governance in which water is ‘a resource given by god to be shared by all’. Recent policy dialogues among water authorities and academics recognize that this colonial legacy continues in contemporary water law in which permits are the blanket legal tool to regulate everyone. Permits as administrative formal entitlements enable a similar water grab by favouring administration-proficient foreign and national high-impact water users with easy access to administrative permits. However, permit obligations criminalize and marginalize all users that under-sourced water authorities are logistically unable to reach. The latter are the millions of rural and peri-urban water users, who, since time immemorial, collectively invested in water infrastructure for self supply. Self supply remains their primary means to access water for domestic uses, livestock, crops, crafts, cultural and other uses. In sharing water resources, they underline water as the commons, as the Boran expressed: ‘Water is either a source that you ‘share in’ as a member of a descent based collective, or one that you ‘share out’ to signify respect’. Yet, without a permit, these small-scale water users face fines or imprisonment. Micro-scale users exempted from the obligation to obtain a permit remain invisible and lack any legal recourse. Hybrid water law seeks to overcome this water grab through a suite of legal tools. Permits partly continue, but end being an administrative entitlement. Instead, they become regulatory tools with strict and enforceable conditions, that are targeted at high impact water users in order to prevent their disproportionate use of a scarce national resource and pollution. Other legal tools ensure equal legal status, if not a priority, of customary commons in water resource allocation and promote further support to achieve constitutional commitments.

Droit hybride de l'eau en Afrique: les biens communs coutumiers dans la décolonisation des systèmes de permis d'eau

Barbara van Koppen

Institut international de gestion de l'eau, South Africa

«Les lois coloniales sur l’eau en Afrique subsaharienne ont privatisé les ressources en eau en tant que propriété des dirigeants coloniaux et ont annulé la gouvernance coutumière africaine dans laquelle l’eau est« une ressource donnée par Dieu à être partagée par tous ». Les récents dialogues politiques entre les autorités de l’eau et les universitaires reconnaissent que cela l’héritage colonial se poursuit dans la loi contemporaine sur l’eau dans laquelle les permis sont l’outil juridique général pour réglementer tout le monde. Les permis en tant que droits administratifs officiels permettent une saisie similaire de l’eau en favorisant les utilisateurs d’eau à fort impact étrangers et nationaux compétents en matière d’administration avec un accès facile aux permis administratifs. , les obligations de permis criminalisent et marginalisent tous les utilisateurs que les autorités sous-approvisionnées en eau sont logistiquement incapables d’atteindre. Ces derniers sont les millions d’utilisateurs d’eau ruraux et périurbains qui, depuis des temps immémoriaux, ont investi collectivement dans les infrastructures hydrauliques pour l’auto-approvisionnement. l’approvisionnement reste leur principal moyen d’accéder à l’eau pour les usages domestiques, le bétail, les cultures, artisanat, culturel et autres usages. En partageant les ressources en eau, ils soulignent que l’eau est un bien commun, comme l’a exprimé le Boran: «L’eau est soit une source que vous« partagez »en tant que membre d’un collectif basé sur la descendance, soit une source que vous« partagez »pour signifier le respect» . Pourtant, sans permis, ces petits utilisateurs d’eau sont passibles d’amendes ou d’emprisonnement. Les micro-utilisateurs dispensés de l’obligation d’obtention d’un permis restent invisibles et sans recours légal. Le droit de l’eau hybride cherche à surmonter cette ponction d’eau grâce à une suite d’outils juridiques. Les permis se poursuivent en partie, mais finissent par être un droit administratif. Au lieu de cela, ils deviennent des outils réglementaires avec des conditions strictes et exécutoires, qui visent les utilisateurs d’eau à fort impact afin d’empêcher leur utilisation disproportionnée d’une ressource nationale rare et la pollution. D’autres outils juridiques garantissent un statut juridique égal, sinon une priorité, aux biens communs coutumiers dans l’allocation des ressources en eau et encouragent un soutien supplémentaire pour respecter les engagements constitutionnels.

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8 Responses

  1. Thank you for the talk Barbara. Perhaps you can provide some more info on how to move to a hybrid water law in Africa. I assume some of those benefiting from the colonial system may still hold on to their rights. So what are the opportunities and challenges of a transition to a hybrid water law?

    1. Dear Marco,
      Absolutely, those benefiting from the colonial system hold on, for example in the ‘lawful’ water grabs that accompany large-scale agriculture, mining etc. They get first class entitlements, often simply by filling an administrative form and pay some revenue. Similarly, in the 1990s, it was the same northern professional water community that revived the colonial permit systems, and helped introducing permit systems in African countries with other water legislation (Ghana, South Africa, Uganda etc). Permit systems were ‘best practice’ in the Integrated Water Resource Management discourses. (See also Mehta, Derman and Manzungu (eds) Flows and Practices: the politics of IWRM in Southern Africa. Special Issue Water Alternatives Vol 9 (3) pp 588-607.

      For African water authorities to formally move to hybrid water law, the past decade of discussions led to a suite of legal options, as synthesized in (2018) “Establishing Hybrid Water Use Right Systems in sub-Saharan Africa. A practical Guide for Managers. By Barbara Schreiner and myself. Available at:

      These tools include ‘recognition of customary water law at equal standing to permits’. For a good part, this can already be achieved with tools other than blanket permits that already exist in the current laws. For example, one tool (which resonates with overburdened water authorities) is to categorize water users from low- to high-impact and implement and enforce permits with proportionate efforts. So focus on the high-impact users, and basically just register or even exempt small users from any administrative obligation. Kenya has done this formally; Uganda considers ‘de facto’; South Africa has the tool of General Authorizations, but has implemented this by even more burdening both small water users and government. The debates continue there….

      Another tool in existing legislation is prioritization in water resource allocation. The priority for domestic water uses is already stipulated in most laws. A next step would be to operationalize a priority water resource allocation for small-scale productive water uses that contribute to constitutional rights to water AND food. Prioritization also provides a stronger legal status to small users exempted from the obligation to apply for a permit. Without such prioritization, exempted users have a weaker legal standing than permit holders.

      These two formal tools may cover most customary water uses. They would still require, for example, permits (with due diligence of participation in planning) for new large-scale customary investors in infrastructure (or those fronting ‘customary interests’).

      So my answer assumes that existing tools in statutory water law can already do a lot to ‘recognize customary water law’. However, for governments to take that effort, this ‘recognition of this customary law’ among the millions of citizens is indispensable. And such future better understanding may highlight how other tools are needed.

      One possibility is simply to recognize any traditional/existing uses and only oblige NEW water users to apply for a permit. This avoids forcing an impossible conversion of one legal system into another one. As Bryan Bruns wrote, this happened in Japan. There, th River Law just recognized any existing uses (Bruns, B (2007) Community priorities for water rights: some conjectures on assumptions, assumptions, principles and programmes. (In: Van Koppen, Barbara, Mark Giordano, and John Butterworth (eds). 2007. Community-based water law and water resource management reform in developing countries. Comprehensive Assessment of Water Management in Agriculture Series 5. CABI Publishers Wallingford, UK). However, in South Africa, this recognition of Existing Lawful Uses in 1998 cemented the huge inequalities of white settlers’ colonial rights.

      In any case, the IASC is a crucial platform for such visibility and study of communities’ management of ‘waterscapes’ as – anyhow already existing – communal or individual investments in infrastructure and water sharing arrangements. As Bryan raised: this included/s groundwater sharing, for example zoning around pastoralists’ deep wells to avoid that new wells would get too close. At the same time, customary water tenure is dynamic with all changes in both surface and groundwater uses as a result of new technologies (including solar), market opportunities and growing populations with growing aspirations (with the sad set-back of covid). In sum, a huge field for further study!

  2. Congratulations Barbara for the keynote presentation. Let me be a little bit be provocative: is the need of paying for irrigation water a condition for its sustainability in the context of poor countries? What model could be pertinent especialy for small scale water plans?
    Koffi Alinon

    1. Dear Koffi, good question! It depends on which water to pay for – water stored and/or conveyed by infrastructure or naturally available water resources?

      In the first case, the farmer probably has already paid for his (rarely ‘her’) infrastructure, and continues paying for operation and maintenance. Most irrigation in Africa is farmer-led/private/self supply, both in terms of irrigated area and certainly in terms of numbers of irrigating households. In public irrigation schemes, the state or NGO or other public agency would probably have paid for construction and major rehabilitation and may, or may not pay for operation and maintenance. Often such operation and maintenance arrangements fall through the cracks, without anyone taking it up, even if they were willing to pay, and schemes collapse. Unsustainable.

      Paying the state for using naturally available water resources is a different issue. First, and above all, states that behave as waterlords who can sell THEIR property, without any accountability of tangible improved water management in return, would just continue the colonial arrogance of ‘vesting all water in his majesty the king of England’, but now in the independent state. Not surprisingly, efforts to introduce permits as taxation tools invariably encountered informal small-scale water users’ resistance: ‘water is given by god’. Water legislation talks about ‘waters are vested in the state’, meaning that states are CUSTODIANS in a public interest. The notion of water as the commons and an intrinsically SHARED resource is a powerful alternative. The main issue is to craft a legitimate (sustainable..) state water authority to render a service in a public interest.

      Second, yes, the new legitimate state water authority needs funding. Basin management institutions invariably appear too expensive to survive from water resource management charges alone, so treasury funding remains needed. Some water authorities, as in Uganda, already raise such revenue (or prefer to do, as Kenya) via the general taxation services instead of having to do on their own. But even outright taxation considers national goals, and wouldn’t charge small-scale users who just try to get a livelihood. Anyhow, taxing many small- and micro-users will cost the state more than any revenue generated. It is true that debates on water payment/taxation still lack even these basic principles of legitimate taxation, with perverse consequences: some officials keep hammering on permits for the sake of revenue collection ‘because my job depends on that money’ without feeling accountable for any service rendered.

      Third, water resources are in most parts of Africa not even physically scarce, but the infrastructure to store and channel it may become more expensive. So there is no sustainability issue in that sense. When water resources get physically scarce and a scarcity value, payment risks favouring those who can pay, widening inequalities. Yet, water resource sharing is not a market. In South Africa, almost all water has been developed and water is scarce but trading has recently been forbidden by law. Any water that is not used has to go back to the common pool for re-allocation to those who need it, in particular the large majority who hardly have access to water in the first place. ‘Use it or lose it’. This is a u-turn away from neo-liberal market thinking. (An informal water market may still continue, though). Here, and elsewhere, the issue is not sustainability but inequality: who got the earlier drops and who gets the last drops?

      Fourth, the only example i know where payment to the state worked a bit to reduce groundwater depletion is in the arid MENA region: a highly controlled environment in which long-standing authorities strictly followed up on water abstractions and payment, and provided compensation to borehole owners who had to close their boreholes (see Francois Molle and Alvar Closas).

      In sum, a good question, Koffi!

    1. Dear Everisto,

      Thank you – absolutely, gendered water requirements and gendered entitlements need further unpacking, in line with constitutional requirements towards gender equality. One broad implication is that statutory entitlements are to be vested in everyone, not in ‘households’ with an underlying assumption that women can only be household heads/representatives, if there is no man; and often ignoring younger male and female household members altogether.

      Gender intersects with other social hierarchies. Another broad implication is to take the perspectives of the Water, Sanitation and Hygiene (WASH) sector as starting point (instead of relegating to another administrative silo). The WASH sector seeks to inclusively ‘leave no one behind’, unlike the productive water use and water resource management sectors. Also, the WASH sector implements the widely accepted priority for domestic water uses, in terms of affordable access through infrastructure development, instead of carrying buckets, but also in terms of a priority in statutory water resource allocation. This benefits not only women but also the men responsible for providing water. Such priority water use is not only for drinking, but also for cooking, washing utensils, cleaning, bathing, laundry, and often small-scale productive uses, especially at and around homesteads. (Note that it is gender blind to talk about ‘drinking water’ and simply ignoring the much larger volumes needed for other domestic uses, while only 3-5 litres per person per day need to be safe for drinking). Considering BOTH production and reproduction is relevant for women (and for men) and for the more vulnerable. For the latter, access to water for domestic uses is still most cumbersome.

      Lastly, constitutional requirements are certainly relevant in any ‘recognition of customary water tenure’. Where customary claims to water are linked to land, women marrying into the villages of their in-laws are disadvantaged. And perhaps the most persistent gender inequality is in control over water infrastructure. Where women irrigate their fields with buckets, men dominate as owners of small mechanized pumps for larger fields on which their wives work as unpaid family labourer. Or men dominate in water user associations. So decolonizing water law means moving away from control by a male white minority to sharing water resources with everyone, both women and men.

  3. Dear Bryan, with the exception of Kenya’s pro-active regulations and Ethiopia’s stronger recognition of small-scale irrigation, I am afraid that implementation of hybrid water law is still mainly a ‘de facto’ reality as a result of water authorities’ lack of logistic resources to do more. They apply the practical principle that ‘20% of effort already gets 80% of the result’, still emphasizing the lawfulness and entitlement as the reward for enforcing conditions – in particular fees/revenue for the post-structural adjustments state. And, at least, this allows foreign investors to ‘orderly’ take water. And does the interest of the Financial Times, Independent etc in claims to Africa’s water bode well? There is still a long road to go…..

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