Hybrid water law in Africa: the customary commons in the decolonization of water permit systems
Channel: IASC COMMONS
Date: 2020-07-29

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

by Barbara van Koppen,  International Water Management Institute, Pretoria, 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.