The International Water Management Institute (IWMI) has released a report detailing how colonial-era water laws are unintentionally sidelining millions of smallholder farmers in Africa due to outdated water permit systems.
According to research in Malawi, Kenya, South Africa, Uganda and Zimbabwe water access is legalised through permits which tilt in favour of large formal users as opposed to smallholder farmers, and which override customary water rights: agreements based on tradition and culture rather than written law.
Small-scale farmers are often exempted from official permits due to size, which gives farmers a weak legal standing as their claims to water access are not considered lawful.
Smallholders can apply for permits but the limited capacity of most water authorities rarely see these applications processed.
In South Africa, with its well-staffed water authorities, only 5,956 permits have been granted since 1998, when the National Water Act was passed.
In other countries covered by the study, the numbers of permits are even lower.
Systems are currently biased toward the few large-scale water users, who gain superior entitlements to use water for large-scale irrigation, mining, industry and hydropower generation, because they know how to engage with the government and can afford the high costs of processing permit applications.
Other users remain trapped in a situation that regards their water use as illegal.
The report, entitled “A hybrid approach to decolonize formal water law in Africa”, argues that at the root of this de jure marginalisation are colonial-era laws which led to “water grabbing”.
The colonial claim to water resources was instituted in the 1990s through the introduction of two-tier permit systems which prioritised colonial access and gave inferior status to African customary water rights.
This has carried over into the post-colonial period and permits and exemptions remain the single legal tool to define water use as lawful.
“Exclusive reliance on national permit systems has, at least on paper, “criminalized” up to 100 million people lacking water permits in the five countries studied,” said Barbara van Koppen, the lead author of the report.
“The state cannot reach them because of the logistical burden of granting permits for so many water users.”
The solution, the authors argue, is to support African governments in “decolonizing” water law through a “hybrid” approach to water use rights.
They recommend that permit systems should be maintained but reoriented to regulate large-scale water users (mainly companies) that have a significant impact on other water users and the environment.
The hybrid approach would also give equal standing to customary law, which has guided investment in water infrastructure as well as water sharing for centuries.
“This is a viable alternative to the blanket permit approach – one that better matches what is already happening on the ground in Africa,” said Barbara Schreiner, Executive Director of the Pegasys Institute, who helped with the report.
“A hybrid water use rights system will lighten the administrative burden on the state, while making formal legal access to water more equitable. This is critical for expanding smallholder irrigation.”
The report was released at the 7th Africa Water Week currently being held in Gabon.