A proposal to “decolonize” formal water law and pave the way for smallholder irrigation

Though often flying below the radar of national water authorities, farmer-led irrigation has taken off in sub-Saharan Africa, and this bodes well for better food security and livelihoods. According to studies in Ghana and South Africa, the number of farmers using their own motorized pumps to irrigate crops greatly exceeds the number involved in large-scale public irrigation schemes. Moreover, the scope to expand smallholder irrigation is enormous – with potential benefits worth up to USD 22 billion dollars per year for 185 million people across the continent. Little wonder, then, that a recent World Bank feature article refers to farmer-led irrigation as “a revolution already in progress.”

IWMI at Africa Water Week

IWMI has a significant presence at this event, taking place in Libreville, Gabon, from October 29 to November 2. In a session titled “A hybrid approach to water legislation,” Barbara van Koppen, a rural sociologist with IWMI, and Barbara Schreiner, executive director of the Pegasys Institute, are sharing results and recommendations from their recent work.

IWMI’s Africa director, Timothy Williams, is exploring interest in the proposed Water Security for Africa (WASA) initiative. Levaraging earth observation and communications technologies, WASA aims to provide information and data that helps improve water security. Williams is also addressing water governance issues, with emphasis on the role of an IWMI-led partnership called GRIPP (Groundwater Solutions Initiative for Policy and Practice).

Like any revolution, though, it is not easy going. A 2018 working paper from the International Water Management Institute (IWMI) documents the struggle over several decades to create participatory institutions (centered on water user associations) that can adequately handle local governance of both centralized and informal irrigation systems. Another IWMI paper, soon to be published, addresseses the problem of financing for smallholders to purchase pumps and other irrigation equipment.

An IWMI research report, released this week at the 7^th Africa Water Week, reveals that the legal underpinnings of smallhollder water use need fixing too. Focused on five countries (Kenya, Malawi, South Africa, Uganda and Zimbabwe) and conducted in collaboration with the Pegasys Institute, the study concludes that the water rights of up to 100 million farmers are undermined by laws rooted in colonial times. Created in the early 1900s, these laws established colonial ownership of natural resources, requiring settlers to obtain permits for the development of water infrastructure. Water permit systems also provided a means to extract valuable information and collect revenues. Governments tolerated customary water governance (which had guided water use in Africa for centuries), as long as it did not interfere with settlers’ interests.

In the decades following independence, governments reinforced permit systems, making them the sole means to use water legally – above certain thresholds involving domestic or micro-scale water use. Notions of “best global practice,” the study authors explain, encouraged the expansion of these systems. However, as smallholders rapidly increased in number, it became logistically impossible to implement national permit systems, particularly since they were expanded to encompass groundwater use. The unintended effect was to leave the vast majority of farmers in legal limbo, threatening their customary water rights and undermining efforts to address irrigation governance and finance.

For a revolutionary movement to find itself at odds with the law is not surprising. The difference in this case is that water authorities, well aware of the many benefits of smallholder irrigation, want to support the movement. The challenge then is to better align formal water law with the goal of achieving a more productive and resilient agriculture through the expansion of smallholder irrigation, with equitable water access. To this end, IWMI and the Pegasys Institute propose a “hybrid” approach. The idea is to focus permit systems more sharply on regulation of the relatively few large-scale and high-impact water users, while putting local customary water law on an equal legal footing with formal permit systems.

For more details on this approach, delve into IWMI Research Report 173, A Hybrid Approach to Decolonize Formal Water Law in Africa together with Establishing Hybrid Water Use Rights Systems in sub-Saharan Africa: A Practical Guide for Managers, published jointly by the Pegasys Institute and IWMI.

The study was supported by REACH, a 7-year global research program, led by Oxford University and funded by the UK’s Department for International Development (DFID), to improve water security for the poor in Africa and South Asia.

Read the IWMI report:
van Koppen, B.; Schreiner, B. 2018. A hybrid approach to decolonize formal water law in Africa. Colombo, Sri Lanka: International Water Management Institute (IWMI). 45p. (IWMI Research Report 173). doi: 10.5337/2018.219