Structural inhibition: Colonial legacies in water resources

Little attention has been afforded to the colonial legacies that remain in water rights, with colonial era policies still plaguing and hindering Africa’s food production efficiency. Water permit systems introduced across Africa by colonial rulers in the early 20^th century are unintentionally criminalising millions of smallholders who cannot obtain permits (van Koppen and Schreiner 2018). A recent report by the International Water Management Institute (IWMI) has suggested that across five sub-Saharan countries (Kenya, Malawi, South Africa, Uganda and Zimbabwe) over 100 million people have not had access to sufficient water resources due to restrictive permit systems (Reuters 2018). Approximately half of sub-Sahara African national governments recognise customary water rights, however this is usually limited to insubstantial farm irrigation and home use (Reuters 2018). With water rights tied to land rights in many parts Africa, you must own land to be able to use water resources. However approximately 90% of rural African land is undocumented and often held under customary law so to regulate water rights, land rights are usually policed (Reuters 2018). Therefore, many small holders are often prosecuted and unintentionally criminalised for using water without permits. 

What are the problems caused by the permits?

These permit systems remain active with their obligations expanding to all water users even smallholders (FT 2018). The license mandate is biased, benefitting large-scale water users such as large irrigated farms, who can navigate the complicated and often expensive application process (van Koppen and Schreiner 2018). At the other of the scale, the poorly funded state agencies in charge of licensing have failed to reach millions of small farmers effectively rendering their water use illegal and thus at risk of prosecution (resulting in fines/jail) (Reuters 2018). The IWMI study found that micro-scale farmers are exempt from requiring a permit if they irrigate less than one acre of land, however they have a weaker legal status than those holding a permit such that they cannot safeguard their water uses and must compete with larger scale permit holders for water resources (Reuters 2018). With informal customary regimes expanding across rural sub-Saharan Africa and millions of small-scale users investing in water infrastructure for self-supply and water sharing, it is apparent that farmer-led irrigation has the potential to become the backbone of food production in sub-Saharan Africa (see Blog 4) (van Koppen and Schreiner 2018). As long as this exclusive legal framework exists for water use, there will be little incentive for smallholders to invest the irrigation structures used to offset vulnerability in rain-fed agriculture in sub-Saharan Africa (FT 2018). This would heavily undermine progress towards meeting food security and economic growth development goals.

What possible solution is there?

With severely lacking infrastructure incapable of informing and processing applications for permits from all small-scale water users across sub-Saharan Africa, water law should be ‘decolonised’ to give smallholders legal protection for their water use (FT 2018). Permits are important to regulate those whose use poses a significant impact on the environment and other stakeholders but need not apply to small scale users who use relatively minuscule amounts. A hybrid approach of regulation would be more effective for smallholder farmers and other small-scale water users (FT 2018).  This system would recognise both existing water permits as well as customary rights to water to an equal legal standing, to prevent criminalising small-scale users and continue to encourage farmer-led irrigation investment. A hybrid approach would reduce administrative requirements for water use regulation by only targeting the existing permits at large-scale users and integrating this with alternative rights-based management for smaller users (van Koppen and Schreiner 2018). Permits could also be collectively granted for groups of small farmers where appropriate to lower the cost for farmers and administrative work for the state whilst affording legal protection to small-scale users. The development of a more inclusive water regulation system across sub-Saharan nations would allow smallholders to improve food yields and thus income, contributing more to the wider domestic economy (FT 2018).